At Issue
9/7/2009 2:39:31 AM EST
Refugee law in Hong Kong: building the legal infrastructure
Mark Daly discusses advances in refugee law as a result of recent judicial review ‘test’ cases, arguing that a comprehensive legislative regime is needed to complete a protective framework for asylum seekers, refugees and CAT claimants.
Posted by LexisNexis

I moved to Hong Kong from Toronto, Canada in 1995 as a newly minted barrister and solicitor. I had studied refugee law and international human rights law at Osgoode Hall Law School and, given my wish to practice human rights law, I was fortuitous to have the opportunity to work with Pam Baker & Company. We regularly made the long trek from our tiny one-room office in Mong Kok, the entrance to which was hidden from view by vegetable stalls, to the detention camps for the Vietnamese asylum-seekers, located in High Island, Whitehead and Tai A Chau. There we would interview clients in preparation for refugee submissions, judicial reviews or habeas corpus applications. Much of the work was done pro bono (I supplemented my income by teaching tennis; Peter Barnes by teaching piano), although we would occasionally receive baskets of fruit from grateful clients. We tried not to fight over the large mangoes.

I mention this background not simply to reminisce but rather to illustrate the backdrop against which the refugee law in the Hong Kong SAR has developed.

No legal framework

In those days, Hong Kong had legislation, namely 'Part IIIA: Vietnamese Refugees' of the Immigration Ordinance (Cap 115), that provided for the refugee status determination (RSD) only of those former residents of Vietnam who fled en-masse and sought asylum in various parts of Asia, including Hong Kong. The legal regime included, inter alia, the setting up of an independent Refugee Status Review Board (RSRB), the procedural details for RSD and provisions regarding detention.

These provisions were effectively removed from the Immigration Ordinance with effect as of 9 January 1998. Thus, except for former residents of Vietnam arriving in Hong Kong between 1988 and 1998 (prior to which time all Vietnamese immigrants arriving in Hong Kong were automatically given refugee status), there was and is a complete lack of legislation, regulation and/or coherent overall policy to deal with asylum seekers, refugees and now a growing number of Convention Against Torture (CAT) claimants.

It has been said that cats and dogs have more protection under Hong Kong law than refugees do ('Pets better served than refugees, say lawyers', South China Morning Post, 5 December 2004). Cats and dogs enjoy a dedicated statute, right of appeal to an independent board and specific provisions regulating decisions which vary length of detention. Not humans. To a young lawyer from Canada, it was remarkable that such an important area of law effectively did not exist in Hong Kong despite the trumpeted importance of the rule of law in this jurisdiction.

Unlike most jurisdictions with developed legal systems, Hong Kong does not make its own decisions on refugee status but instead relies on the United Nations High Commissioner for Refugees (UNHCR) for such decisions. At the same time, the Hong Kong administration is now devising a system to determine whether someone may face torture if returned to their country of origin.

The Law Society and Bar Association have recently added their voices to the chorus of concerns about having two separate systems. In the Joint Position Paper by the Law Society of Hong Kong and the Hong Kong Bar Association on the Framework for Convention Against Torture (CAT) Claimants and Asylum Seekers issued on 31 March 2009, they stated:

"Both the Law Society and the Bar Association are also aware of the procedural deficiencies and potential for abuse in having a separate assessment process for refugee status determination (RSD) in the HKSAR which is presently carried out by the United Nations High Commissioner for Refugees (UNHCR). The UNHCR assessment process, if it was amenable to the jurisdiction of the Hong Kong courts, would not meet the high standards of fairness and would most likely be declared unlawful for substantially the same reasons as in FB. Further, it is unfair and anomalous that the ultimate decision on the individual's refugee status by the UNHCR is not amenable to judicial scrutiny. Indeed, the UNHCR itself has been calling on the HKSAR to legislate and carry out RSD for a number of years."

To fully appreciate this anomalous situation and its inherent unfairness and inefficiency, one must appreciate the legal developments arising out of the case of Prabakar


Hong Kong’s 1999 report to the United Nations Committee Against Torture stated:

"Should potential removees or deportees claim that they would be subjected to torture in the country to which they are to be returned, the claim would be carefully assessed, by both the Director of Immigration and the Secretary for Security or, where the subject has appealed to the Chief Executive, by the Chief Executive in Council. Where such a claim was considered to be well-founded, the subject’s return would not be ordered. In considering such a claim, the Government would take into account all relevant considerations, including the human rights situation in the state concerned, as required by Article 3.2 of the Convention. However, there have been no cases so far where the question of torture has been an issue. Thus Article 3.2 has not been applied in any particular case." [emphasis added]

Despite this proclamation, publicly presented by the Hong Kong administration to an international committee of experts, the reality proved to be far different. This was exposed in the judicial review against the Secretary for Security which culminated in the Hong Kong Court of Final Appeal judgment in the case of Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 (FACV 16 of 2003, 8 June 2004). The CFA found:

"Both the Director and the Secretary had not given any consideration as to whether the respondent’s claim that he would be subjected to torture if returned was well-founded. Instead, they relied wholly on UNHCR’s refusal of refugee status, which, as far as they were concerned, was unexplained."

Critical to an understanding of the dangerous flaw in the decisionmaking process is the fact that the definition of a refugee is different to the legal test for a person fearing return to torture.

Mr Prabakar was a young Tamil who had been detained and tortured at the notorious Sixth Floor of the Central investigation Department Headquarters in Colombo. Despite the applicant meeting the 'gold standard' for refugee and/or torture claims – as it was put by Mr Nicholas Blake QC, one of his counsel at the hearing – Mr Prabakar had repeatedly been denied refugee status by the UNHCR in Hong Kong. However, after a letter before action from Mr Prabaker’s lawyers dated 9 December 1999, providing the Secretary for Security with a deadline of 20 December 1999 to rescind a deportation order, the UNHCR, in a letter dated 17 December 1999, recognised Mr Prabakar as 'a refugee under the Mandate of UNHCR'. This was an unexplained about-face; the UNHCR had previously written to the Director of Immigration on 21 July and 27 September 1999 stating that it was maintaining its original rejection of refugee status and had not informed Mr Prabakar or his lawyers.

Despite this, the deportation order was not rescinded and Mr Prabakar was eventually resettled in Canada. The litigation centered on the fairness of the decision-making process. Mr Prabakar’s judicial review was dismissed by the Honourable Mr Justice Hartmann at the Court of First Instance on 20 September 2001, but was successful at the Court of Appeal in a judgment dated 27 November 2002. Because of the public importance of the matter, the CFA heard the case in May 2004.

Noting that the UNHCR 'does not usually give reasons for the rejection of refugee status' and that ‘it enjoys immunity from suit and legal process and its decisions are not subject to the jurisdiction of the courts in Hong Kong’, the CFA rejected the submission that the Secretary could rely merely on the UNHCR’s rejection of refugee status in rejecting a torture claim and making the decision to deport.

Chief Justice Li stated:

"This submission cannot be right and must be rejected. As held above, high standards of fairness are required in this situation. Such standards could not possibly be met by the Secretary merely following UNHCR’s unexplained rejection of refugee status, with the Secretary being in a state of ignorance of the reasons for such rejection. Determining the potential deportee’s torture claim in this way, without undertaking any independent assessment, would fall well below the high standards of fairness required."

Referring to the fatal flaw in the decision-making process, Mr Justice Bokhary in separate reasons stated:

"So extraordinary is such a state of affairs that it has crossed my mind that this deportation order is open to attack not only for procedural unfairness but also for irrationality or even for the lack of a decision by anyone to whom our law entrusts the power to decide on deportation."

From a human rights perspective, or for those who wish to see jurisprudential progress, particularly in the area of international human rights law, it is regrettable that Hong Kong’s highest court did not anchor Hong Kong’s obligations in any of the grounds argued such as the Basic Law, the Bill of Rights, customary international law and legitimate expectation. Instead, responding to the Hong Kong administration's position that it had no legal duty to follow its policy of not deporting a person to a country where that person’s claim that he would be subjected to torture in that country was considered to be well-founded, the CFA stated:

"For the purposes of this appeal, the court will assume without deciding that the Secretary is under a legal duty to follow the policy as a matter of domestic law. In proceeding on the basis of such an assumption, the court must not be taken to be agreeing with the views expressed in the judgments below that such a legal duty exists."

FB: fairness in CAT screening procedures

As a result of Prabakar, the Hong Kong administration implemented 'discretionary', 'non-statutory' screening procedures for CAT claimants. Despite being directed by the CFA to implement a process in accordance with ‘high standards of fairness’, the administration has not promulgated a single legislative or regulatory provision dealing with screening and related issues. As such, the procedures have not benefited from the scrutiny and debate which accompany the legislative process.

Cheung and Wong have documented a 'JR test' which government proposals have undergone during the formulation stage to ensure that they will withstand judicial review (see Anthony BL Cheung and Max WL Wong, 'Judicial Review and Policy Making in Hong Kong: Changing Interface Between the Legal and the Political', Asia Pacific Journal of Public Administration, Vol 28 No 2 (December 2006), p 117). The proposed amendments there examined, the legality of which was subject to a detailed review, concerned the prohibition of backyard poultry farming.

It does not appear that a similar process was following in the area of asylum-seekers, refugees and CAT claimants – humans thereby taking a back seat to animals once again. This extraordinary state of affairs pointed to a lack of rigour in the setting up of the administrative screening procedures. The inevitable result was a wide-ranging challenge to the fairness of the CAT screening procedures by judicial review, heard in the High Court over a period of ten days from the end of April 2008 to 26 September 2008: the case of FB v Director of Immigration [2009] 1 HKC 133 (HCAL 51, 105, 106, 107, 125 and 126 of 2007, 5 December 2008).

The six 'test' cases challenged the legality of the process of assessment of the applicants’ claims for protection under Article 3 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment. The grounds included, inter alia, challenges to: the blanket refusal to provide legal representation to all Convention claimants regardless of disability and at all stages of the process; the blanket refusal to permit the attendance of legal representatives during all CAT interviews; the competence and expertise of the assessors; and the lack of a requirement for timely determination. Further, there were no procedural safeguards in respect of the common law privilege against self-incrimination.

The applicants argued, inter alia, that these basic requirements are necessary to meet the ‘high standards of fairness’ required by the Court of Final Appeal in Prabakar. One of the more remarkable aspects of the case included the fact that the success rate for the 200-plus claimants in the CAT process was 0%, until the claim by one of the test case applicants was found to be successful during the hearing. This solitary success, over five years after the applicant initiated his claim, came only after the Honourable Mr Justice Saunders in open court raised concerns directed at the respondent’s lack of progress in determining the claim.

That was far from the last of the inadequacies exposed. It was not until the challenge was initiated that decisions began to be translated into the various languages of the applicants. A number of the decisionmakers had not had any specific training on the Convention Against Torture. One of the applicants had been interviewed in respect of his claim over 123 times – the equivalent of 60 court days worth of time – and unsurprisingly had become suicidal. There is evidence that it was not until 2006/2007, more than two years after the CFA’s Prabakar decision (and four years after the Court of Appeal’s decision in the same matter) that the Director set up an assessment team of seven officers to consider Convention claims. In 2007 it was reported that 'just seven immigration officers are officially processing claims made under the UN’s Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT), while 19 have been temporarily borrowed from other units' (‘More staff being hired to handle rising number of claims’, South China Morning Post, 18 May 2007).

Finally, to the continuing concern of the UN Committee Against Torture, and as a result of the question left unanswered by the Court of Final Appeal in Prabakar, the Hong Kong administration maintains that there is no obligation under domestic law in Hong Kong arising from Article 3 of the Convention Against Torture.

The significance of the decision in FB has attracted much attention, including in the cover story of last month’s edition of Hong Kong Lawyer, ‘The Right to Legal Representation: The Fast-Developing Jurisprudence’ by Johnny Mok SC. In his article, Mr Mok twice comments that the decision in FB is ‘radical’ in nature. Two points should be made. First, it should be noted that Mr Mok was counsel for the respondent in FB. The respondent wasunsuccessful and the conduct of its case was criticised by the court (at paragraph 8 of the judgment).Second, Mr Mok's characterisation of the decision in FB as 'radical' loses force when one considers that many developed legal systems have long histories of legal aid schemes, and that litigation of the FB type therefore would be unnecessary in those jurisdictions. Put another way, FB may result in Hong Kong building some of the infrastructure that it should have had long ago.

The 'momentous importance' of the decision in FB was recognised by the then President of the Law Society, Mr Lester Huang, and resulted in the issuance of the unprecedented LSHK-HKBA Joint Position Paper (JPP) referred to above. The JPP begins by setting out the unfair and unlawful aspects of the CAT assessment procedures as found in FB, and calls upon the administration to address these issues by implementing a legislative or regulatory framework to ensure high standards of fairness.

The JPP continues by pointing out that the Hong Kong SAR is at a critical juncture in this area of the law and highlights the illogicality of considering designing a new administrative scheme for CAT claimants only but not for asylum-seekers and refugees generally:

"The Law Society and the Bar Association are of the view that this is a critical juncture and an opportunity to implement a coherent and comprehensive system. Legislation should be passed to help prevent abuse which may affect not only CAT claimants but asylum seekers and claimants. An inadequate system will only invite abusive claims that exploit weaknesses in the system, and further poor decision-making and legal challenges. The lack of legislation or a detailed and accessible policy governing detention of CAT claimants was criticized by the Court of Appeal in A & others and DOI (CACV 134/2007) and may result in costing the HKSARG millions in legal fees and damages for unlawful detention."

The voice of the local legal profession has now been added to a series of international criticisms with respect to Hong Kong’s treatment of asylum-seekers, refugees and CAT claimants.

International criticism

The state of affairs in Hong Kong with regard to asylum-seekers, refugees and CAT claimants has attracted increasing international criticism. Recently, the United Nations CAT Committee, before which I represented the Hong Kong Human Rights Monitor (a locally based NGO), stated in its Concluding Observations (CAT/C/HKG/CO/4, 21 November 2008, Advance Unedited Version):

"While the Committee appreciates the cooperation of HKSAR authorities with UNHCR to ensure respect for the principle of non-refoulement and protection of refugees and asylum seekers, it is still concerned that there is no legal regime governing asylum and establishing a fair and efficient refugee status determination procedure. The Committee is also concerned that there are no plans to extend to HKSAR the 1951 UN Convention relating to the Status of Refugees and its 1967 Protocol.

The HKSAR should:
(a) incorporate the provisions contained in article 3 of the Convention under the Crimes (Torture) Ordinance;
(b) consider adopting a legal regime on asylum establishing a comprehensive and effective procedure to examine thoroughly, when determining the applicability of its obligations under article 3 of the Convention, the merits of each individual case;
(c) ensure that adequate mechanisms for the review of the decision are in place for each person subject to removal, expulsion or extradition;
(d) increase protection, including recovery and reintegration, to trafficked persons, especially women and children, who should be treated as victims and not criminalized;
(e) ensure effective post-return monitoring arrangements; and
(f) consider the extension of the 1951 Refugee Convention and 1967 Protocol to Hong Kong."

This followed a number of statements from the various United Nations Committees that have been critical of the way Hong Kong has treated asylum seekers, refugees and CAT claimants. In contrast, the Macau SAR has implemented legislation in respect of refugees in 2004 (and has had the Refugee Convention extended to it) and the Mainland is drafting legal regulations.

Other judicial reviews

In addition to FB, Prabakar spawned a number of judicial reviews a challenge to the detention of CAT claimants; challenges to the failure to provide, inter alia, food and accommodation for CAT claimants and asylum seekers (see ‘the bag of rice’ cases discussed below); a review of the prosecution policy for immigration offences for those fleeing persecution or torture (see RV v Director of Immigration [2008] 2 HKC 209 (HCAL 2 of 2008, 10 March 2008) and Iqbal Shahid v Secretary for Justice [2009] HKCU 301 (HCAL 150/2008, 2 March 2009)); and a challenge to the failure to assess asylum claims independently of the UNHCR (see C v Director of Immigration [2008] 2 HKC 165 (HCAL 132/2006 and 1, 43, 44 and 82/2007, 18 February 2008), presently being appealed to the Court of Appeal). The common thread tying these cases together is the lack of comprehensive legislation governing these areas to manage asylum-seekers, refugees and CAT claimants.


Another area in which there is an absence of legislation, administrative foresight and coherent policy, inviting judicial review, is that of unlawful administrative detention. Administrative acts have on several occasions contravened the 1999 UNHCR Guidelines which reaffirm the general principle that asylum seekers should not be detained.

The problems in this area have been highlighted by the arrest and release of asylum seekers at the HKSAR/International Social Service (ISS) shelter and the continuing detention of asylum seekers/CAT claimants (hunger strikers) at the Castle Peak Bay Immigration Centre (CIC). On 29 June 2006 (ironically, the same day the ‘destitution cases’ discussed below were being heard in the High Court), the HKSAR/ ISS shelter (which was on offer for some of the applicants in the destitution litigation to accept as accommodation) was raided by the police because the inhabitants were suspected ‘overstayers’. They were in fact asylum seekers. Despite holding certificates from the UNHCR, they were arrested and detained, although in this case they were held only briefly.

The episode again emphasised the incoherent policy by which the HKSAR allows the UNHCR to carry out RSD for it but ignores and/ or reserves the right to prosecute or detain asylum-seekers holding UNHCR papers. While these persons were released after having to report to the Director of Immigration the following day and only after the intervention of NGOs and lawyers, many asylum seekers and CAT claimants remained detained in CIC. The justification for the detention remained unclear. Detainees suffered from delays in having their legal aid applications processed and the lack of an administrative detention review procedure.

In the cases of A, F, AS and YA v Director of Immigration [2008] HKCU 1109 (CACV 314-317 of 2007, 18 July 2008), involving CAT claimants and asylum seekers administratively detained for periods between three and 22 months, the Court of Appeal found that the Director of Immigration’s policy on detention was not sufficient and accessible and therefore did not meet the requirements of Article 5(1) of the Hong Kong Bill of Rights addressing arbitrary detention. The court observed:

"Mr Chow’s primary submission is that the Director does not have a policy, and that the law does not require him to have one. We have already dealt with these submissions. We add only that it is inconceivable that the Director has no policy at all."

The government's alternative submission was that the policy is said to be contained in a document entitled ‘Supplementary information in relation to situation of refugees, asylum seekers, and torture claimants' supplied to the Legislative Council. The paper, found to be cursory in nature, was not produced before the judge at the Court of First Instance. Moreover, the supposed policy paper was dated 1 December 2006 and therefore was not in existence when A, F and AS were detained. The court did ‘not believe such piecemeal disclosure of policies would satisfy Article 5(1)’s requirement that the grounds be certain and accessible'.

While this appeal decision was widely reported as a success, it is regrettable from one perspective that the government did not appeal and allow the Court of Final Appeal an opportunity to consider the wider, and primary, argument, rejected by the Court of Appeal, that, in general terms, Prabakar and the subsequent developments did not neatly fit within the existing immigration legislation. Part of the problem with judicial review is that in egregious cases of legislative inaction, such as in this area of the law, the courts may not be able to tackle the problems in an holistic way. It is not the court’s role to legislate.

Subsequent to the Court of Appeal judgment, it appears that the Hong Kong administration still has not sorted out its detention policy. In the case of Hashimi Habib Halim v Director of Immigration [2008] HKCU 1576 (HCAL 139 of 2007, 15 October 2008), Saunders J criticised the Director for not carefully examining what might constitute an appropriate policy despite ‘having been given the advantage of knowing of the policy adopted by the Home Secretary in N (Kenya)’.


A further major category of refugee-related judicial review was demonstrated by the 'bag of rice' cases. The Hong Kong administration considers that it is not obliged to assist CAT claimants, asylum seekers or refugees by providing comprehensive support, such as accommodation, food, medical assistance or education for children. Even after Prabakar, applicants were left in a state of destitution, reduced to begging for assistance from NGOs. At the same time, and despite the lengthy screening processes, the Hong Kong government does not allow applicants to be employed to support themselves.

An applicant in this situation, who was given a bag of uncooked rice by the Social Welfare Department, wrote the following in 2005:

"Up till now I have been unable to eat the food [supplies collected from St James Settlement] because [they] are raw and I don’t have any facility to cook them. I don't even have a place to keep the food stuffs since I am homeless. I am force[d] to carry these food stuffs with me any where I go and it is too heavy and has just added to my problem. I desperately need shelter, basic daily eatable food and basic financial allowance to aid me."

This state of affairs resulted in a series of cases in which the applicants argued that the Hong Kong administration breached its legal obligations including those under the ICCPR and the Bill of Rights Ordinance, the ICESCR, the Convention on the Rights of the Child (CRC) and the common law: see D v Director of Social Welfare (HCAL 163 of 2005), N v DSW (HCAL 25 of 2006) and G v DSW (HCAL 31 of 2006).

The initiation of judicial reviews has resulted in some changes being made, such as setting up the present DSW/ISS system, but problems remain. These again include a lack of legislation, and also the continuing problems with administering an ‘in kind’ assistance program – which has resulted in inefficiencies such as social welfare staff spending hours shopping for applicants and escorting them to medical appointments rather than providing a minimal cash allowance.

It was only shortly before the judicial review hearing in February 2006 that the system was created, and ISS was contracted only in April 2006 despite knowledge of the problem long before then.

A new system

As a result of the 'test' cases outlined above, in particular FB, it has become clear that a new system is necessary. As the JPP states, we are at a critical juncture in the development of the legal infrastructure in this area, which affects fundamental rights of the most serious kind.

"Given that the HKSAR has an obligation to screen CAT claimants and by its own numbers there are more persons availing themselves of that process than the procedurally unfair UNHCR process (3196 vs 1591 [at the time of this paper]) and given the similarity in the nature of the processes, the Law Society and the Bar Association invite the HKSAR to consider responding favourably to the recommendations of the UN CAT and put in place comprehensive legislation for refugee status determination (RSD) and CAT screening. Undoubtedly the majority of applicants will claim both. Since the HKSAR must interview for CAT, and if increasing resources are to be spent on a complete revision of the process, and a decision on refugee status can be made based on the same interview process (as
is done in other developed jurisdictions), there does not seem to be any impediment to the HKSAR taking control, in a fair and efficient way, of the entire process and putting in place a comprehensive legislative framework. This would include, inter alia, basic screening legislation, including the setting up of an independent tribunal, legislation governing immigration status pending a decision and legislation for related issues such as provision of social assistance during the process. All of these are presently lacking."

The successful implementation of a new screening process will require practitioners to be trained to assist CAT claimants and asylum seekers. The Hong Kong government, the Duty Lawyer Service, the Law Society and the Bar Association are presently discussing issues of training and funding. This is not only an important time for the future of this area of the law in Hong Kong. Developments here can be used as a template by similar jurisdictions in the region at various stages of their own development.

For lawyers interested in human rights work, this is an opportunity to get involved and use their legal skills to assist those who need them the most. Speaking about pro bono work, Ontario Chief Justice (and former Canadian Attorney General) Roy McMurtry has said:

"In my view, a just society is one that enables each of its members to have access to the kind of legal assistance that is essential for the understanding and assertion of their legal rights, obligations and freedoms under the law ... it is therefore absolutely essential that government, with strong support of the legal profession, ensure that adequately funded legal aid be a bastion of a democratic society as a guardian of individual liberties."

Thus, while lawyers should always be mindful of the public interest, and there will always be areas where pro bono assistance is required in order to ensure access to justice, pro bono work should not be relied upon in place of a properly functioning legal system, with the primary duty being on government to ensure access to justice. Lawyers interested in training in this area and getting involved in human rights work, given its complexities and the serious issues at stake, should not have to work for mangoes.

Mark Daly
Barnes & Daly

The essence of this article was presented as a keynote speech at the International Symposium on Refugee Protection in the New Era and Civil Society, 13 June 2009, Tokyo, Japan. It is appropriate for the purposes of this paper to disclose that the writer’s firm has been lawyers for the applicants in most of the cases referred to relating to asylum seekers and/or CAT claimants.



我於1995年從加拿大的多倫多來到香港,那時是一名新入行的訟務和事務律師。我在Osgoode Hall Law School唸書時修讀難民法和國際人權法,而由於我希望從事人權法方面的工作,當時剛好便有機會在貝嘉蓮律師行工作。我們經常從位於旺角的只有一個房間的辦公室(它的入口被一個菜檔所遮擋),長途跋涉前往萬宜羈留中心、白石羈留中心和大鴉洲羈留中心探望來自越南的尋求庇護者。在那兒我們會見當事人,處理難民身份的申述、司法覆核或人身保護令申請等方面的工作。我們大多數的工作都是志願性的(我是靠教人打網球而彭思傑是靠教人彈琴來幫補我們的收入),雖然間或會收到一些當事人為表謝意而送給我們的水果籃,但我們不企求獲得巨額報酬。





有人說,在香港的法例下貓狗所享有的保障更勝於難民(參看「寵物所獲得的服侍較難民為佳,律師們如是說」,南華早報,2004年12月5日) 。貓狗享有為它們專門制訂的法例、向獨立委員會上訴的權利,以及對羈留時間長短所作的更改作出規管的具體規定,但人類卻沒有這般的待遇。對於一名來自加拿大的年青律師來說,一個這麼重要的法律範疇竟然在香港尚付闕如,這實在令人感到驚訝,儘管我們時常宣稱法治是如何重要。



「香港律師會和香港大律師公會亦關注到香港特別行政區存在對難民身份確定的單獨評核程序(現時由「聯合國難民事務高級專員辦事處」(以下簡稱「聯合國難民專員辦事處」) 負責執行),於程序上存在的不足之處,以及有被濫用的可能。假如「聯合國難民專員辦事處」的評核程序須受制於香港法院的司法管轄,則它將不會符合高度公平的準則,並會基於FB案件中的同樣理由,被法庭宣告為不合法。此外,「聯合國難民專員辦事處」對個別人士的難民身份的最終決定不須接受司法審查,這是不公平和有欠常理的,而「聯合國難民專員辦事處」本身在過去的數年間,已曾要求香港特別行政區進行立法和執行難民身份確定的工作。」






這情形在針對保安局局長的司法覆核中被揭示,並帶來香港終審法院對Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 (FACV 16 of 2 003, 8 June 2004)一案的判決。終審法院裁定:



Mr Prabakar是一名年青泰米爾人,他曾在惡名昭彰的科倫坡中央調查部門總部6樓遭到拘留和酷刑對待。儘管該申請人符合難民及/或酷刑聲請的「黃金準則」—正如在聆訊當中,他的其中一名代表律師Mr Nicholas Blake QC所述的一般—但Mr Prabakar 仍多次被香港「聯合國難民專員辦事處」拒絕給予難民身份。當Mr Prabakar的律師於1999年12月9日發出一封訴訟前函件,要求保安局局長在1999年12月20日的限期前須將一道遞解令撤銷後,「聯合國難民專員辦事處」便於一封日期為1999年12月17日的函件中,承認Mr Prabakar於聯合國難民專員辦事處訓令下的難民身份 。這是一個沒有提供任何解釋的180 度轉向。「聯合國難民專員辦事處」之前曾於1999年的7月21日及9月27日致函入境事務處處長,表明它維持其拒絕給予難民身份的決定,並且沒有通知Mr Prabakar或其律師。

儘管如此, 該遞解令並沒有被撤銷, 而Mr Prabakar最後定居於加拿大。有關的訴訟,圍繞在決策過程的公平性方面。Mr Prabakar的司法覆核於2001年9月20日在原訟法庭被夏正民法官駁回,但於上訴法庭在2002年11月27日所頒發的判決中勝訴。基於該宗案件對社會的重要性,終審法院於2004年5月對該宗案件進行聆訊。










張炳良及王慧麟提出了政府的建議在制定過程中的「司法覆核驗證」,以確保其經得起所面對的司法覆核挑戰 (參見張炳良/王慧麟的‘Judicial Review and Policy Making in Hong Kong: Changing Interface Between the Legal and the Political’, Asia Pacific Journal of Public Administration, Vol 28 No 2 (December 2006), p 117),而當中就禁止後園家禽飼養所提出的修訂作出了查驗,並對其合法性進行了詳細審查。

政府對於尋求庇護人士、難民及《禁止酷刑公約》聲請人,看來並沒有實施類似的程序—這再次顯示人不如動物。這一不尋常事態的出現,顯示政府並沒有積極地訂立甄別程序。無可避免地產生的結果是,一系列對《禁止酷刑公約》甄別程序公平性的質疑透過了司法覆核提出,並自2008年的4月底至同年的9月26日的一個10日期間,於高等法院進行了聆訊:FB v Director of Immigration [2009] 1 HKC 133 (HCAL 51, 105, 106, 107, 125 and 126 of 2007, 5 December 2008)。



然而,其所揭示的不足之處遠非止於此。只有在有關的質疑提出之後,該等裁決才被翻譯成為各申請人的不同語言文字;而一些決策者並未接受過關於《禁止酷刑公約》的具體培訓。有一名申請人曾就其提出的聲請被會見了超過123次(相當於60天的法庭審訊時間),並毫不驚訝地令他有自毁傾向。有證據顯示,入境事務處處長是於2006/2007年以後(超過終審法院在Prabakar一案的裁決作出之後兩年,以及上訴法庭就該案件作出裁決之後四年),才成立一個由7名人員組成的評核小組來對公約下的聲請進行研究。2007年,據報導稱,「只有7名入境事務處人員正式負責處理根據聯合國的《禁止酷刑和其他殘忍、不人道或有辱人格的待遇或處罰公約》(《禁止酷刑公約》)而提出的聲請,並有19名人員是從其他部門臨時借調過來」(參看「更多人員被聘處理數目上升的聲請」,南華早報,2007年5月18日) 。





「香港律師會和香港大律師公會均認為這是一個重要的接合點,以及是實施一個連貫和全面性制度的機會。香港必須進行立法以協助防止濫用,而該等情況不單會影響《禁止酷刑公約》聲請人,亦會影響尋求庇護者和聲請人。一個不足的制度,會招來利用這個制度之弱點的濫用聲請,並衍生劣質的決策和帶來對法律的挑戰。上訴法庭在A & others and DOI (CACV 134/2007)一案中,批評香港缺乏規管羈留《禁止酷刑公約》聲請人的法例,和詳盡及可以理解的政策,並會招致香港特別行政區面對不合法羈留的指控,從而可能需要承擔數以百萬計的法律費用及損害賠償。」



香港在對待尋求庇護者、難民和《禁止酷刑公約》聲請人方面的手法,已招來不斷增加的國際批評。最近,在聯合國的禁止酷刑公約委員會(我作為香港人權監察(一個本地非政府機構)的代表出席了該會議)的審議結論(《禁止酷刑公約》/C/HKG/CO/4, 21 November 2008, Advance Unedited Version) 中指出:


(a) 將載於《公約》第3條的規定收納於《刑事 罪行(酷刑)條例》﹔
(b) 考慮設納一個有關政治庇護的法律制度,建立廣泛和有效的程序,在確定《公約》第3條下其義務的適用情況時,詳盡查證每一宗個案的是非曲直;
(c) 確保存在一個充分機制,對每一位被遷移、驅逐或引渡的人士所作的決定進行覆核;
(d) 增加對被販運人士的保護(包括復原和重新 融合),特別是女性和兒童,並應將她們視作受害者而非當作罪犯看待;
(e) 確保存在有效的遣返後監察安排;及
(f) 考慮將《1951年聯合國難民地位公約》及其1967年的《議定書》伸延至香港。」



除了FB一案外,Prabakar一案亦引起若干司法覆核的提出,對羈留《禁止酷刑公約》聲請人,以及對未能為《禁止酷刑公約》聲請人及尋求庇護者提供食物和住宿提出了質疑 (參見下文所述的「米包」案件);對與逃離迫害或酷刑對待的人士有關的非法入境罪行之檢控政策進行檢討(參見RV v Director of Immigration [2008] 2 HKC 209 (HCAL 2 of 2008, 10 March 2008) and Iqbal Shahid v Secretary for Justice [2009] HKCU 301 (HCAL 150/2008, 2 March 2009) ) ; 以及對未能自行評估尋求庇護的聲請並獨立於聯合國難民專員辦事處提出質疑(參見C v Director of Immigration [2008] 2 HKC 165 (HCAL 132/2006 and 1, 43, 44 and 82/2007, 18 February 2008),現時正向上訴法庭提出上訴)。這些個案的一個共同地方,就是在處理尋求庇護者、難民及《禁止酷刑公約》聲請人的問題方面,均缺乏規管這一範疇的全面立法。





A, F, ASYA v Director of Immigration [2008] HKCU 1109 (CACV 314-317 of 2007, 18 July 2008)等案件中,《禁止酷刑公約》聲請人和尋求庇護者被行政羈留達3個月至22個月不等。上訴法庭裁定,入境事務處處長的羈留政策乃不充分和難以理解,因而並不符合《香港人權法案》第5(1)條關於任意羈留的規定。上訴法庭指出:


政府作出的申述是,該政策乃載於其向立法會提交的一份名為《有關難民、尋求庇護者和酷刑聲請人情況的補充資料》文件中。該份文件略嫌粗略,而且並沒有向原訟法庭法官呈交。此外,當中所指的政策文件的日期為2006年12月1日,故當A, F及AS被羈留時,其事實上並不存在。法庭「並不相信這一逐少披露的政策,符合第5(1)條所規定—理據的提出必須明確和可以理解」。


在上訴法庭作出判決後,香港政府看來仍沒有訂立羈留政策。在Hashimi Habib Halim v Director of Immigration [2008] HKCU 1576 (HCAL 139 of 2007, 15 October 2008)一案中,辛達誠法官批評入境事務處處長並未仔細審視可構成適當政策的各種情況,儘管其「已獲告知N(肯尼亞)的民政部長所實施的政策」。





這一情形,導致出現連串的申請人指香港政府違背其法律責任的情況,包括在《公民權利和政治權利國際公約》、《人權法案條例》、《經濟、社會、文化權利國際公約》、《兒童權利公約》 及普通法下的責任:參見D v Director of Social Welfare (HCAL 163 of 2005), N v DSW (HCAL 25 of 2006) and G v DSW (HCAL 31 of 2006)。




「由於香港特別行政區有責任甄別《禁止酷刑公約》聲請人,而由於現時等候進行甄別的人士,較有欠公平的「聯合國難民專員辦事處」的程序所處理的數目為多(3196 vs 1591 [於本文件發出之時]),而基於該等處理程序的性質類似,香港律師會和香港大律師公會要求香港特別行政區對聯合國《禁止酷刑公約》的建議作出正面的回應,並就難民身份的確定及《禁止


對於有志從事人權工作的律師而言,這是一個參與和運用其法律技能以協助最有需要的人士的機會。就志願工作而言,安大略的首席大法官(及加拿大的前律政總長) Roy McMurtry曾說過:

「我認為一個公平的社會,可以能夠讓其所有成員在了解及主張其於法律下所享有的法定權利、義務和自由方面,獲得所須的法律協助... 因此政府必須在法律界的強而有力支持下,確保存在一個獲得充足資助的法律援助計劃,作為捍衛個人自由的民主社會中的一個堡壘。」




本文的內容,主要是2009 年6 月13 日在日本東京舉行的一個名為《在新時代及公民社會中的難民保護國際研討會》上所發表的演說。需要指出的是,本文作者所服務的律師行,乃所述的與尋求庇護者及/或《禁止酷刑公約》聲請人有關的大部分個案申請人的代表律師。

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