Joyce Man writes for South China Morning Post on 8 March 2013

The principle of not sending someone to a place where they may be persecuted has never been part of Hong Kong law, the government said yesterday. Benjamin Yu SC was speaking on behalf of the Immigration Department and the secretary for security at the Court of Final Appeal, where three African men were making a final bid to change how applications for refugee status are handled in the territory. Hong Kong is not a signatory of the United Nations Convention Relating to the Status of Refugees. The government does not take applications for refugee status, but instead refers them to the United Nations High Commissioner for Refugees.

When the UNHCR finds in favour of someone claiming refugee status, the government can allow them to stay pending resettlement. But this would be on humanitarian grounds, rather than out of any obligation. “Non-refoulement,” Yu said, referring to the principle, “has never been part of the common law in Hong Kong.” Vaughan Lowe QC, also for the government, said even if the court found non-refoulement was a rule in Hong Kong, it would be up to the government to decide how to meet the obligation. He said there was “no reason” why the UNHCR should not handle refugee claims in Hong Kong. The appellants – from the Democratic Republic of Congo and the Republic of Congo – had their applications for refugee status and subsequent appeals rejected by the UNHCR.

They filed applications for judicial review but lost those, as well as appeals against those decisions. They argue the UNHCR screening process is inadequate and that its decisions are not open to judicial scrutiny. Hong Kong, they say, must make its own decision regarding their claims in an informed, fair and accountable manner. Refugee support workers are waiting anxiously for the court’s ruling. “We are definitely watching it closely,” said Cosmo Beatson, executive director of refugee support group Vision First. “The case is vitally important.” The case was heard before Mr Justices Patrick Chan Siu-oi, Roberto Ribeiro, Robert Tang Ching, Kemal Bokhary and Anthony Mason.

Article 5. “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”