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Nguyen Tuan Cuong, Long Quoc Tuong and Others v. The Director of Immigration, the Secretary for Security and the Chairman of the Refugee Status Review Board of the Court of Appeal of Hong Kong

Publisher United Kingdom: Privy Council (Judicial Committee)
Author Judicial Committee of the Privy Council
Publication Date 21 November 1996
Citation / Document Symbol Privy Council Appeal No. 28 of 1996
Cite as Nguyen Tuan Cuong, Long Quoc Tuong and Others v. The Director of Immigration, the Secretary for Security and the Chairman of the Refugee Status Review Board of the Court of Appeal of Hong Kong, Privy Council Appeal No. 28 of 1996, United Kingdom: Privy Council (Judicial Committee), 21 November 1996, available at: http://www.refworld.org/docid/3ae6b65910.html [accessed 21 August 2014]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.
 

Nguyen Tuan Cuong; Long Quoc Tuong & others v. The Director of Immigration; The Secretary for Security and The Chairman of the Refugee Status Review Board of the Court of Appeal of Hong Kong

Judgment of the Lords of the Judicial Committee of the Privy Council,
delivered the 21st November 1996

Present at the hearing:-

Lord Goff of Chieveley

Lord Mustill

Lord Hoffmann

Lord Cooke of Thomdon

Sir John May

[Majority Judgment delivered by Sir John May]

This is an appeal from a judgment dated 8th February 1996 of the Court of Appeal of Hong Kong (Bokhary, Mortimer and Mayo JJ.A.) (1996) 6 H.K.P.L.R. 62 dismissing, by a majority, an appeal from a judgment dated 1st September 1995 of the High Court of Hong Kong (Sears J.) [1995] 3 H.K.C. 373, which in its turn dismissed the appellants' application for judicial review of certain decisions of the respondents made in connection with the appellants' claims to be recognised as refugees in Hong Kong under section 13A (1) of the Hong Kong Immigration Ordinance, Cap. 115.

When giving leave to appeal to their Lordships, Bokhary J.A. said that it was difficult to identify any disputed legal principle which would arise in the proposed appeal but that the Court of Appeal thought that it would be appropriate to give leave even if no such principles did arise, having regard to the dimensions of the case, the number of persons concerned and the vital importance of the result to them.

The Hong Kong Immigration Ordinance has had a relatively long history and been amended on a number of occasions. In particular it has bee amended from time to time since 1975 to deal with the many former residents of Vietnam, often known as the "boat people", who arrived and sought to remain in Hong Kong as refugees. The key statutory provisions relating to the latter are found in Part IIIA and Part V of the Ordinance and are as follows:-

"13A.Special conditions of stay regarding Vietnamese refugees

(1)An immigration officer or a chief immigration assistant may permit any person-

(a)who was previously resident in Vietnam and who has been examined under section 4(1)(a); or

(b)who was born after 31 December 1982 and whose father or mother was previously resident in Vietnam and who has been examined under section 4(1)(b), to remain in Hong Kong as a refugee pending his resettlement elsewhere.

(2)…

(3)Every Vietnamese refugee who has been permitted to remain in Hong Kong whether before or after the commencement of the Immigration (Amendment) Ordinance 1981 (35 of 1981) shall be subject to a condition of stay that-

(a)if he is made an offer of resettlement elsewhere he shall not without reasonable excuse fail or refuse-

(i)to accept the offer; nor

(ii)to comply with any requirement necessary for the completion of the resettlement procedure; and

(b)if he is required by an immigration officer or a chief immigration assistant to surrender the Vietnamese refugee card held by him, he shall not without reasonable excuse fail or refuse to surrender forthwith the Vietnamese refugee card.

(4)…

(4A)…

(5)…

13D.Detention pending decision as to permission to remain in Hong Kong, or pending removal from Hong Kong

(1)As from 2 July 1982 any resident or former resident of Vietnam who-

(a)arrives in Hong Kong not holding a travel document which bears an unexpired visa issued by or on behalf of the Director; and

(b)has not been granted an exemption under section 61(2),

may, whether or not he has requested permission to remain in Hong Kong, be detained under the authority of the Director in such detention centre as an immigration officer may specify pending a decision to grant or refuse him permission to remain in Hong Kong or, after a decision to refuse him such permission, pending his removal from Hong Kong, and any child of such a person, whether or not be was born in Hong Kong and whether or not he has requested permission to remain in Hong Kong, may also be detained, unless that child holds a travel document with such a visa or has been granted an exemption under section 61(2).

(1A)…

(1B)…

(2)…

(3)Where a person is detained under subsection (1) after a decision under section 13A(1) to refuse him permission to remain in Hong Kong as a refugee, such person as the Director may authorize for the purpose shall serve on the detained person a notice in such from as the Director may specify notifying him of his right to apply for a review under section 13F(1).

(4)-(8)…

13E.Removal from Hong Kong of Vietnamese refugees and persons detained under section 13D

(1)The Director may at any time order any Vietnamese refugee or person detained in Hong Kong under section 13D to be removed from Hong Kong.

(2)An immigration officer or a chief immigration assistant may remove from Hong Kong in accordance with section 24 any person ordered to be removed from Hong Kong under subsection (1).

13F.Review of Refugee Status Review Board

(1)Any person on whom a notice is served under section 13D(3) may, within 28 days of such service, apply to the Board to have the decision that he may not remain in Hong Kong as a refugee reviewed.

(2)…

(3)…

(4)…

(5)Upon the hearing of the review a Board shall make such decision as to the status of the appellant and as to his continued detention under section 13D(1) as it may think fit, being a decision which the Director might lawfully have made under this Ordinance, and the Director shall give effect to such decision.

(6)-(11)…

8. Removal of persons refused permission to land and of members of ship's crew who contravene certain conditions of stay

(1)Subject to subsection (2), an immigration officer or a chief immigration assistant may remove from Hong Kong in accordance with section 24-

(a)a person who, pursuant to any examination whatsoever under section 4(1)(a), is under section 11(1) refused permission to land in Hong Kong; and

(b)[ship's crew provisions]

(2)A person who is refused permission to land in Hong Kong may not be removed from Hong Kong under subsection (1)(a) after the expiry of 2 months beginning with the date on which he landed.

Subsection (2) shall not apply if it appears to the Director that the person refused permission to land was previously resident in Vietnam.

(3)Subsection (3) shall expire on 31 December 1990 unless the Legislative Council by resolution otherwise determines.

Note: Expiry date now 31 December 1993-see L.N. 401 1992."

The facts of the case can be stated quite shortly. The appellants are persons who were previously resident in Vietnam or are the children born to such persons while they were detained in Hong Kong. The majority of them are ethnic Chinese who were expelled form Vietnam into China in the late 1970's and early 1980's at a time when a state of hostilities existed between Vietnam and China. They then spent some time in China before seeking to come to Hong Kong by sea. As such they contended that they fell to be dealt with under Part IIIA of the Immigration Ordinance.

It is not clear precisely when or in what groups the various appellants arrived in Hong Kong but the probabilities are that upon arriving in Hong Kong waters all of them were intercepted by police and immigration officers. Following the normal practice a tape-recorded warning notice was then played to them. The wording of this notice varied from time to time but the message was clear. The version used from February 1993 onwards, and probably the version played to these appellants was, in so far as is material, in these terms:-
"Illegal immigrants are not welcome in Hong Kong and there is no future for them. If you choose to remain, you will be subject to a screening procedure in the next few days to determine whether you have a genuine claim for refugee status. You will be placed temporarily in a detention centre while you are awaiting the outcome of the screening. …If following the screening procedure it is decided that you are not a refugee, and therefore an illegal immigrant, you will be promptly repatriated to Vietnam…"

At the same time the appellants were told that they had the choice, in lieu of detention and screening, of having any necessary repairs done to their boat and of being re-provisioned and then leaving Hong Kong waters. All of them, however, chose to submit to detention, for what they expected would be a short time, in reliance on the promise of being screened for refugee status. They then submitted to a cursory and preliminary examination by immigration officers, during which they freely admitted their sojourn in China after expulsion from their homes in Vietnam and told the immigration officers that they wished to claim refugee status in Hong Kong.

However, despite the promises that had been given to them, and indeed, as is submitted on their behalf, contrary to the terms of the Ordinance, they were refused permission to land in Hong Kong and given what was the purely administrative classification of "Ex China Vietnamese Illegal Immigrants (ECVIIs)" by the Director of Immigration. By a policy decision also taken by him, ECVIIs were not to be screened for refugee status. After extended periods of detention, purportedly under sections 18(1) and (3) of the Ordinance, the latter subsection was allowed to lapse by the legislature and the Director directed that all ECVIIs, including the appellants, in Hong Kong at the time, would thereafter be detained under section 13D(1) of the Ordinance pending their removal from Hong Kong under section 13E. Formal notices to this effect were given to each of the appellants and copies were put before the Board.

Thereafter these appellants remained in detention in Hong Kong until on 21st July 1995 they applied for judicial review of various of the administrative decisions made by the Director of Immigration and the other respondents who had been concerned with their case. The crucial decisions were those of the Director classifying them as ECVIIs and refusing to make a determination on their claim for refugee status.

Two points arise on this appeal. First, as to the proper construction of Part IIIA of the Ordinance, namely whether, the appellants having been detained under section 13D, they were entitled to or at any rate received a determination under section 13A of their claim for refugee status and, as part of that, whether they are entitled to a review of their position by a Refugee Status Review Board under section 13F of the Ordinance. Secondly, whether, even if the appellants did not have these rights on the facts and a proper construction of Part IIIA, they nevertheless acquired, from the taped notice which was played to them, a legitimate expectation that they would be give such rights outside the proper construction of the Ordinance and consequently that they should not be deprived of the fruits of that legitimate expectation.

Both the learned judge at first instance and also the judges of the Court of Appeal in Hong Kong held that on the facts of this case the appellants were refused permission to remain as refugees under section 13A(1) of the Ordinance and that they were detained pursuant to section 13D(1). It followed as a matter of construction of Part IIIA that the appellants were entitled to have their cases considered by the Refugee Status Review Board. Prima facie therefore the appellants were entitled to appropriate relief by way of judicial review. At first instance, however, the judge declined to exercise his discretion to grant such relief on the two grounds, first, that he regarded the appellants not as Vietnamese refugees but as indistinguishable from illegal immigrants from China and sought to apply what he considered to be the policy of the Hong Kong Government, and secondly, that there had been substantial and unnecessary delay in seeking judicial review and that consequently there would be unjustified administrative inconvenience if this were to be granted. In the Court of Appeal in Hong Kong all the judges agreed with Sears J, at first instance on the proper construction and the effect on the appellants of Part IIIA of the Ordinance and Mortimer and Mayo JJ.A. also agreed with him on the question of discretion; however Bokhary J.A. disagreed on the discretion issue and would have granted the relief sought. On 8th March 1996 the appellants were granted leave by the Hong Kong Court of Appeal to appeal to their Lordships.

In support of their appeal the appellants' counsel submitted that the courts below had been correct in their construction of the material parts of the Immigration Ordinance but that, having in the result held that the appellants were entitled to the relief which the Ordinance provides, they were wrong to have exercised their discretion to refuse the appellants the judicial review which they sought. Further, so clear was the error below on the discretion point that it was open to the Board to substitute its own discretion and not to be bound by the usual rules in these cases.

On behalf of the respondents it was submitted that the Board should consider the history of the immigration legislation in Hong Kong, which made it clear that it was never intended that the review provisions should apply to immigrants in the situation of the appellants. Their Lordships were grateful for these extended submissions which they found of great interest and which illuminated the history of Vietnamese immigration to Hong Kong over the past 20 years, the difficulties which the large numbers of Vietnamese boat people seeking to enter and settle in Hong Kong had presented the Hong Kong Government and, indeed, the residents of Hong Kong themselves.

Counsel for the respondents argued a number of points as we have already said, but his principal submission rested on his contention, reflecting the views of the Director of Immigration that no ethnic Chinese who had fled from Vietnam to China and settled there, or at least had stayed there for a substantial period before coming to Hong Kong, had then any claim to refugee status in Hong Kong vis-à-vis Vietnam. There was no danger of their being refouled by China to Vietnam and any refugee status that they might have had had been extinguished by their periods of re-settlement in China. Thus, the argument continued, there would have been no likelihood of the immigration authorities in Hong Kong dealing with any of the appellants as a refugee or in a refugee context. If followed that there could not have been any decision in respect of the appellants or any of them under section 13A(1) of the Ordinance which might otherwise have given rise to a right to receive a notice under section 13D(3) and thereafter to have the decision refusing leave to remain in Hong Kong reviewed by a Refugee Status Review Board under section 13F.

However it is common ground that the appellants were detained under section 13D of the Ordinance and it was the case for the appellants before their Lordships that on the proper construction of Part IIIA of the Ordinance, and in particular of sections 13D and 13A, the appellants' detention followed a decision under section 13A(1) refusing them permission to remain in Hong Kong as refugees. If it did, then it is accepted that subject to the point on the exercise of discretion the appellants were entitled to a notice under section 13D(3) and thereafter entitled to ask for a review by the Refugee Status Review Board under section 13F.

The judges below held that the appellants' detention did indeed follow a decision under section 13A(1) and thus, subject to the discretion point, that they were entitled to the relief sought. By a majority, however, the Court of Appeal of Hong Kong, following Sears J., declined to exercise the necessary discretion.

Sears J., at first instance, took the view that if he had to give meaning at all to section 13D(3), it was a meaning which had to reflect that section 13A has built within it a right for a Vietnamese refugee to claim refugee status and for the immigration officer to determine that application. In his view section 13A therefore contained a right given to the immigration officer to grant or refuse permission, otherwise Part IIIA would be emasculated. What had happened was that all the applicants had made an application to be screened, but the Director of Immigration had refused on the basis that he had no obligation to screen people classified as he had these applicants. In the learned judge's judgment that was wrong. If the applicants were to be treated as Vietnamese refugees, then there was an obligation on the Immigration Department if a claim for refugee status was made to hear and determine it.

Bokhary J.A. reached the same conclusion, albeit by a somewhat different process of reasoning and held that the appellants were in law entitled to have their positions considered under section 13A(1) with the statutory consequences to which reference has already been made if they were refused permission to remain in Hong Kong pending resettlement elsewhere.

Mortimer J.A., whilst having little doubt that the purpose of removing the words "as a refugee" from section 13D(1) was to widen the power to detain after a refusal to allow a person who has arrived in Hong Kong to remain there under section 11 or 13A, did not think that this assisted the Director when the amended section was read in the whole context of the Ordinance. Although he did not find the interpretation of section 13D as amended easy, it was his conclusion that each of the applicant had been refused permission to remain in Hong Kong as a refugee under section 13A.

In his turn, Mayo J.A. agreed with the reasons given by Bokhary and Mortimer JJ.A. and had no doubt that Sears J. was correct in reaching the conclusion that he did that the Director of Immigration had been exercising his powers under Par IIIA of the Ordinance when issuing the detention notices to these appellants.

In their Lordships' opinion the position of Vietnamese immigrants in the domestic immigrant law of Hong Kong is a special one. This is shown by and no doubt has come about as a result of the material history of the past 20 years. It is also confirmed by the presence of Part IIIA in the Hong Kong Immigration Ordinance. Further, their Lordships agree with the statement from the judgment of Litton J. in his judgment in Reg. v. Director of Immigration, Ex parte Chan Heung Mui (1993) 3 H.K.P.L.R. 533 at page 543 referred to by Bokhary J.A. in his judgment in the instant case, to the effect that "section 13 of the Ordinance imposes no statutory duty of any kind upon the Director, beyond the broad duty falling upon him to administer the scheme of immigration control embodied in the Ordinance fairly and properly". Further, as was the view of Sears J., where section 13A provides that the appropriate officer may permit a previous resident of Vietnam to remain in Hong Kong as a refugee, there must impliedly be provided a power in that officer to refuse permission to such a person. Thus at least when the present appellants arrived in Hong Kong waters in their boat and it was known at once, or within a very short time, that they were previous residents of Vietnam, there was a duty on the immigration authorities to ask them whether they were seeking to remain in Hong Kong as refugees. Clearly they were and equally, in the light of the administrative decision which the Director had taken, his decision on such a request would have been to refuse it.

Indeed, in substance this is what has already occurred. By electing to be placed in a detention centre after the playing to them of the recorded message, the appellants implicitly sought permission under section 13A(1) of the Ordinance to remain in Hong Kong as refugees pending resettlement elsewhere. No other provision of the Ordinance provides for such permission, and the recorded message, however discouraging, clearly held out some hope of it. By the formal refusal notices, if not earlier, permission was equally clearly reused. Thereupon it became the duty of the Director under section 13D(3) to cause to be served notices of the right to apply for review. The first issue on a review is likely to be whether the appellants have lost their status as refugees from Vietnam because of settlement in China. They claim, with supporting evidence, that in China they have been denied inter alia rights to work, to the education of their families, to marry, to own land, and to legal residence by household registration. There are even claims of a risk of being forced back to Vietnam. These various claims may be contested, and it is not a function of their Lordships in this appeal to attempt either to resolve them or to forecast how they will be resolved. If, however, they are made out, it will be open to the Review Board to find that the appellants have never lost their Vietnamese refugee status; and perhaps to find further that, within the meaning of section 13A(3)(a), they have reasonable excuse for not accepting any offer of resettlement in China. Nor can the possibility of their obtaining resettlement elsewhere be dismissed at this stage as altogether negligible.

The cases of Magdolna Haidekker (1977) 11 I.A.C. 442 (Canadian Immigration Appeal Board) and Reg. v. Secretary of State for the Home Department, Ex parte Bugdaycay [1987] A.C. 514 raised different issues and include no reasoning that could be decisive of the present case. It is to be noted that Mrs. Haidekker was expressly found to have been accepted as a refugee in Austria. The interpretation of Part IIIA of the Ordinance adopted in the present judgment and by the Hong Kong courts appears to give effect to the purposes of the Statement of an Understanding between the Hong Kong Government and the United Nations High Commission for Refugees, dated 20th September 1988. The document provides that all refugees will have access to resettlement and recognises the special situation of asylum seekers from Vietnam.

The majority of their Lordships are unable to accept the view that among some 1991 amendments the addition to section 13D(3) of the works "under section 13A(1)" makes a difference material for the purposes of this case. Whether strictly necessary or not, the words may have been added to emphasise that permission under section 13A(1) to remain in Hong Kong as a refugee pending resettlement elsewhere is the only provision in the Ordinance for allowing Vietnamese refugees to remain. In any event, for the reasons already given, the majority agree with all the Hong Kong judges who have sat in this case that the proper inference on the facts have is that permission was refused under section 13A(1).

In all the circumstances in their Lordships' opinion there was a failure on the part of the Director of Immigration to comply with the statutory duty that Part IIIA of the Ordinance placed upon him and that accordingly, subject to the discretion point, the appellants were entitled to relief.

In addition to founding his argument on what he contended was the proper construction of Part IIIA of the Ordinance, counsel for the appellants also submitted that as a result in particular of the tape recorded message which was read to them on their arrival in Hong Kong waters the appellants were entitled to claim a legitimate expectation that the promises in that message would be honoured and that they could expect to be screened for refugee status within a few days. On the foregoing approach it becomes unnecessary to consider as a separate point that argument based on the doctrine of legitimate expectation. It is enough to say that any suggestion that the message was mere window dressing would be unattractive.

Their Lordships turn finally to the question of discretion. They have well in mind the normal rules that apply in the case of appeals against its exercise by a lower Court. In so far as the respondents sought to seek to uphold a decision not to grant relief on the ground of unnecessary delay, their Lordships note that a majority of the court of Appeal in Hong Kong would not have refused relief on this ground. As Mortimer J.A. said in his judgment-"it would be a harsh decision to deprive them of a right of review on the grounds of delay when access to legal advice in closed camps must have been limited". The majority of the Court of Appeal held that relief should not be granted, even though the statutory right to it had been made out, on the ground that the only possible consequence of granting it would have been that the appellants would still in the end have all been sent back to China. This was not a conclusion which commended itself to Bokhary J.A.: as he said:-
"I do not think that one can go so far as to say that it is inevitable. Unless one assumes that the Director's mind is closed and will remain closed-which I do not assume-things are not as clear as that."

Their Lordships are of the same view. It is at the least possible that if these appellants obtained a review, the chance of some of them being resettled elsewhere than in China might well attract a Review Board, at it has in other countries such as Australia. On the material before their Lordships a number of the appellants may have relatives in countries other than China where they could obtain ultimate refuge.

For the above reasons their Lordships will accordingly humbly advise Her Majesty that the appeal ought to be allowed and the judgments of the Court of Appeal and the High Court set aside and that the appellant' application for judicial review ought to be granted in the terms set out in the dissenting judgment in the Court of Appeal of Bokhary J.A. an order in these terms will allow reconsideration by the Director of the question of permission under section 13A(1) in the light of current circumstances, with an opportunity for review in the event of refusal.

The respondents must pay the costs of this appeal and of the proceedings in both courts below except in relation to the claim for damages, which was not pursued before their Lordships.

Dissenting Judgment delivered by Lord Goff of Chieveley and Lord Hoffmann

We regret that we are unable to concur in the majority judgment. We think that upon the true construction of the immigration Ordinance, the applicants had no right of appeal to Refugee Status Review Board. For the reasons which we shall explain, we think that the question of whether the applicants had status of refugees from Vietnam was irrelevant to the decision repatriate them to China. No determination of the Board as to their status could therefore affect the legality of that decision.

In many countries, including the United Kingdom, the law and concerning asylum seekers and refugees is based upon law obligations accepted by accession to the and Protocol relating to the Status of Refugees 9171) and (1967) (Cmnd. 3906). For obvious practical. Her Majesty's Government has never acceded to the in respect of Hong Kong. It has however been party international agreements and understandings which require the of certain Convention principles to refugees from. This partial acceptance of Convention obligations the statutory provisions at issue in this appeal and makes to examine their background in international law attempting to construe them.

The history of the Vietnamese refugee problem as it affected Hong Kong can be briefly told. Large numbers of people began Vietnam after the end of the war there in 1975. Hong Kong gave them "first asylum" pending their resettlement in other. There was no inquiry into whether they qualified as under the Convention and Protocol. A programme for their distribution among the international community was agreed at an International Conference in Geneva in 1979. At first they were allowed to move freely about the Colony while waiting for an offer of resettlement. This proved too much of a strain for the social structures and economy. From 1982 the refugees were detained in closed camps. Numbers in the camps built up as the readiness of the international community to offer resettlement places waned. This was partly due to a perception that few of the applicants for resettlement were refugees in the Convention sense. Most of them simply wanted to emigrate to countries which appeared to offer them better prospects. In 1988 the number of arrivals in Hong Kong from Vietnam increased alarmingly in relation to the offers of resettlement. In June 1988 the Hong Kong Government decided to institute a system of screening to determine whether people arriving from Vietnam were genuine refugees or "economic migrants". The former could expect under the Convention and Protocol to obtain resettlement in other host countries. The latter would be repatriated to Vietnam. In this way it was hoped to be arrivals and departures into equilibrium. The system screening was set up after consultation with the United Nations High Commission for Refugees ("UNHCR"). It was based upon a "Statement of an Understanding reached between the Hong Kong Government and UNHCR Concerning the Treatment of Asylum Seekers Arriving from Vietnam in Hong Kong" agreed in September 1988. This document is fundamental to an understanding of the subsequent amendment to the Immigration Ordinance.

The Principal concern of the UNHCR was to ensure that the principles upon which the Hong Kong. Government would decide whether Vietnamese refugee should be allowed to remain (albeit in detention in closed camps) or repatriated to Vietnam should being accordance with internationally accepted standards. The Hong Kong Government agreed to apply these principles. The opening words of the Statement of Understanding were as follows:-
"The Hong Kong Government reaffirms that, notwithstanding the heavy burden placed upon the Territory by the sudden influx of people from Vietnam, all refugees will be treated according to established international standards and will have access to resettlement. It further reaffirms its undertaking that the determination of refugee status will be in accordance with the 1951 convention and 1967 Protocol relating to the status of refugees and UNHCR guidelines."

Thus the Government accepted the obligations contained in the convention and Protocol for the limited purpose of deciding whether people claiming to be refugees from Vietnam should be admitted or repatriated. It is therefore necessary at this point to consider what those obligations are.

The Convention, as amended by the Protocol, contains in Article 1 the well-known definition of a "refugee":-
"Any person who…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence…is unable or, owing to such fear, is unwilling to return to it."

A person who satisfies this definition is said to have refugee status. The rest of the convention imposes upon the Contracting States certain obligations towards persons having refugee status. For the purposes of immigration control, the most important are contained in Articles 31 and 33. Article 31.1 says:-
"The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life of freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence."

Article 33 is headed "Prohibition of expulsion or return (‘refoulement')":-
"1. No Contracting State shall expel or return (‘refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."

Refugee status is thus far from being an international passport which entitles the bearer to demand entry without let or hindrance into the territory of any Contracting State. It is always a status relative to a particular country or countries. And the only obligations of Contracting States are, first, not to punish a refugee who has entered directly from the country in which his life or freedom was threatened for a Convention reason and secondly, not to return him across the frontier of that country. In all other questions of immigration control: for example, punishment for illegal entry from a third country, or expulsion to a third country from which there is no danger of refoulment to a country falling within Article 33, the question of whether a person has refugee status is simply irrelevant.

Perhaps the most vivid illustration of this limitation on the privileges of refugee status is the case of Mrs. Magdolna Haidekker, who may be said to have presented the Canadian Immigration Appeal Board with a reductio ad absurdum of the opposite point of view. (11 Canadian Immigration Appeal Cases 442). She left Hungary as a refugee in 1965 and settled in Vienna. Austria was not to her liking and in 1968 she moved on to Switzerland, where she was allowed to reside. In 1976 she found some relatives in Canada and decided that the would like to go and live with them. She claimed right of entry into Canada as a refugee under the Convention. The Appeal Board decided that since the question was whether she should be returned to Switzerland, the only issue which arose under the Convention was whether her life or freedom would be threatened if she was returned to Switzerland. Unless there was a prospect of her being returned to Hungary, the question of whether she had the status of a refugee from Hungary was irrelevant. We emphasise that the question in such a case is not whether the applicant has lost his or her refugee status. In relation to Hungary, Mrs. Haidekker may well still have had a well founded fear of loss of freedom on Convention grounds. But since there was no question of her refoulment to Hungary, this did not matter. She was a prospective immigrant from Switzerland and had no claim to be treated differently from any other person wanting to emigrate to Canada.

Similar principles were applied by the House of Lords in Reg. v. Secretary of State for the Home Department, Ex parte Bugdaycay [1987] A.C. 514 to the case of Mr. Musisi, a refugee from Uganda who had come to the United Kingdom from Kenya. The House decided that if he could be returned to Kenya without danger of being sent back by the Kenyan authorities to Uganda, there would be no breach of the Convention. The decision of the Home Secretary to order his deportation was quashed only because he had not given proper consideration to whether such a danger existed.

If, therefore, one looks at the present case from the point of view of the Convention obligations which the Government of Hong Kong accepted in the Statement of Understanding, the position seems to be clear. All the applicants were originally residents of Vietnam but had been living in China for at least five years before coming to Hong Kong. It is proposed to repatriate them to China. The evidence is that China will accept them. There is no suggestion that in China their lives or freedom would be threatened for a Convention reason or that there is any danger of their refoulment to Vietnam. We were shown cuttings from the South China Morning Post reporting Hong Kong officials as saying that Vietnam was reluctant to accept the repatriation of genuine Vietnamese refugees from the Hong Kong camps because it feared that if it conceded the principle of repatriation, it might be under pressure from China to accept the 260,000 former Vietnamese residents living in China. This was put forward as evidence of a danger that the applicants might be sent back to Vietnam. But we think that even if such speculations are well founded, the possibility that China might try to persuade Vietnam to allow refugees to return comes nowhere near amounting to a danger of refoulment. No such case was advanced in the courts below and Bokhary J.A. said that on the evidence, it was plain that China "unquestioningly properly resettles" former Vietnamese residents returned to China from Hong Kong.

Thus Hong Kong (or any other country involved in the resettlement programme) has no obligation in international law to treat immigrants form China differently from any other Chinese immigrants merely because they were once resident in Vietnam. The fact that they may still have refugee status in relation to Vietnam is irrelevant.

The question is then whether, by the legislation passed to implement the statement of Understanding, Hong Kong in fact accepted obligations in relation to the applicants more extensive than the Convention required. For this purpose, it is necessary to look at the legislation in some detail.

Section 13 of the Ordinance gives the Director power to authorise a person who has landed in Hong Kong unlawfully to remain there "subject to such conditions of stay as he thinks fit". It was this power which was at first used by the immigration authorities in the late 70's to allow Vietnamese refugees to stay in Hong Kong pending resettlement, subject to standard conditions. In 1981 the practice was given specific statutory authority in a new Part IIIA headed "Vietnamese Refugees". Section 13A(1) gave a power similar to that in section 13, but exercisable specifically in relation to a person "who was previously resident in Vietnam". The section specified standard conditions which followed from such a permission and gave the immigration officer power to impose others.

The introduction of closed camps in 1982 was reflected in substantial amendments to Part IIIA. Section 13A(1) now gave the immigration officer power to order anyone arriving after 2nd July 1982 and given permission to "remain in Hong Kong as a refugee pending his resettlement elsewhere" to be detained in a refugee centre. Section 13D gave a similar power to the Director to detain "any resident or former resident of Vietnam" who arrived in Hong Kong without a visa to be detained "pending a decision to grant or refuse him permission to remain Hong Kong as a refugee or, after a decision to refuse him permission to remain in Hong Kong, pending his removal from Hong Kong". It must however be borne in mind that there was at this stage no investigation of the claims of persons who had arrived from Vietnam to be refugees in the Convention sense and therefore the category of persons who needed to be detained under section 13D was at first seen as likely to be fairly limited.

The introduction of screening in 1988 required further substantial amendments. Sections 13F and G established "Refugee Status Review Boards" to whom persons refused permission "to remain in Hong Kong as a refugee" could appeal. By section 13F(5) the Board was given power on hearing a review to:-
"…make such decision as to the status of the appellant and as to his continued detention under section 13D(1) as it may think fit, being a decision which the Director might lawfully have made under this Ordinance, and the Director shall give effect to such decision."

The Refugee Status Review Boards had been introduced pursuant to the agreement with the UNHCR, which was anxious that there should be a right of appeal on the question of refugee status. By paragraph B(1) of the Statement of Understanding, the Hong Kong Government had promised to apply "appropriate humanitarian criteria" for determining refugee status, which would be based upon the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol. At the time of the Statement of Understanding, the only statutory right of appeal under the Ordinance was a right to object of he Governor in Council under section 53, but the Hong Kong Government agreed to advise "persons determined not to be refugees" of their right of object. In the event, this procedure was replaced by a right of appeal to a refugee Status Review Board and the obligation to notify persons determined not be to refugees was given effect by section 13D(3), which in its original form read:-
"Where a person is detained under subsection (1) after a decision to refuse him permission to remain in Hong Kong as a refugee, such person as the Director may authorize for the purpose shall serve on the detained person a notice in such form as the Director may specify notifying him of his right to apply for a review under section 13F(1)."

It is upon the construction of this subsection that the present appeal turns. But before addressing the arguments about what it means, we must mention one final amendment which was introduced in 1991. This followed the decision of Sears J. in In Re Phan Van Ngo [1991] 1 H.K.L.R. 499 in which the Government's use of the detention power under section 13D(1) was severely criticised. The case concerned a ship bound to Japan which had been damaged and put into Hong Kong for assistance. The passengers and crew were detained under section 13D(1) for some 18 months although they had expressed no wish to remain in Hong Kong as refugees or otherwise. They were detained under section 13D(1) on the basis that it applied to any "resident or former resident of Vietnam". In granting habeas corpus, the learned judge expressed the view that detention under section 13D(1) could be used only "pending a decision" to grant or refuse permission to remain as a refugee or after the refusal of such permission. If followed that it could not be used to detain anyone who had not requested such permission. In consequence of this case, section 13D(1) was amended in 1991 to make it plain that it allowed the detention of any. "resident or former resident of Vietnam", whether or not he was asking to be allowed to remain as a refugee or whether he had any prospect of obtaining such permission. It therefore covered the detention of persons like the applicants, who were former residents of Vietnam, whether or not it was with a view to determining whether they had refugee status. They were in fact detained under that power. At the same time as section 13D(1) was amended, section 13D(3) was amended by inserting after the word "decision" the words "under section 13A(1)". In other words, the right to receive notice of the right to apply for a review was not to apply to any decision to refuse permission to remain in Hong Kong as a refugee, but only to a decision "under section 13A(1)".

We must admit at once that these words are by no means the clearest way in which the legislature could have conveyed its message. Section 13A(1) confers a power to allow previous residents of Vietnam to remain in Hong Kong as refugees pending resettlement elsewhere. Any refusal to exercise that power, for whatever reason, can be said to be a decision under section 13A(1). This is the interpretation which has been given to section 13D(3) by the judges in Hong Kong and the majority of the Board. It would follow from this construction that the applicants are entitled to appeal to the Refugee Status Review Board. But such a construction deprives the words added by amendment of any meaning. One could just as well have kept the previous words "a decision to refuse him permission to remain in Hong Kong". We think that there must have been some purpose to the amendment. It was plainly intending to distinguish between a decision under section 13A(1) and the exercise of some other statutory power or powers, although in either case the effect would be to deny the applicant the right to remain in Hong Kong as a refugee.

If one looks at the background which we have recounted, the message seems to United States to be plain enough. Section 13D(1) was being amended to make it clear that the detention power applied not only to people waiting for a decision on whether they had the status of refugees from Vietnam, or whose claims to such status had been refused, but to persons of Vietnamese origin who had made no such claims (as in the case before Sears J. in In Re Phan Van Ngo [1991[ 1 H.K.L.R. 499) or, for present purposes more relevantly, to persons to whom such claims were irrelevant. Included in that category were persons who were indeed entitled to refugee status from Vietnam but who had arrived from China or some other country and were in no danger of refoulment to Vietnam. We think that a decision to repatriate them would not be "under section 13A(1)" within the meaning of the Ordinance but a decision under the general power conferred by section 11 to refuse permission to land in Hong Kong. In our view, therefore, the words "under section 13A(1)" were inserted to make it clear that the right to appeal to the Review Board was to be confined to persons whose applications to remain in Hong Kong had been refused on the grounds that they did not have refugee status. It did not apply to persons who were refused permission to remain in Hong Kong on grounds which had nothing to do with whether or not they had the status of refugees from Vietnam.

Even without the 1991 amendment, it would have seemed to United States very strange if a person whose application had been refused on some other ground could have a right of appeal to the Review Board. It was after all called a "Refugee Status Review board". Its function was to make a decision "as to the status of the appellant" (section 13F(5)). Under the Statement of Understanding, the decision was to be made in accordance with the guidelines in the UNHCR Handbook. Plainly, therefore, the issue which the Review Board had to decide was whether the applicant had the status of a refugee from Vietnam. In the case of the present applicants, however, no such issue arises. The applicants submit that the Board can decide whether or not they have "lost" their status of refugees by virtue of their long stay in China. But that is a misunderstanding of the position of the Hong Kong Government. It is not concerned with whether the applicants have lost the status of refugees from Vietnam. They may well still have such a status. The respondents' case, which we think well founded, is that unless there is a danger of their being sent back to Vietnam, it does not matter whether they have such a status or not.

What issue, therefore, is the Refugee Status Review Board to decide? Its function is to apply the principles of the Convention and Protocol, as elaborated by the UNHCR Handbook, to the question of refugee status. On the basis of the Convention and Protocol the position of the applicants is, as we have said, beyond reasonable dispute. The Handbook, unsurprisingly, has no a word to say about people who have refugee status in relation to one country but wish to resist being sent to a different country. Does the Board have jurisdiction to decide that although the applicants could be repatriated to China without any breach of the Convention or Statement of Understanding, they should on some unspecified grounds be allowed to remain in Hong Kong until they are made an offer of resettlement by a country which shares Mrs. Haidekker's views on the rights of refugees? We would be reluctant to attribute so eccentric and intention to the Hong Kong legislature. The whole pint of the screening procedure was to admit as refugees only those persons who would have a claim under international law to be received by a host country as refugees from Vietnam. Only on this basis could Hong Kong balance the numbers entering and leaving the camps. But the applicants clearly have no such rights under the Convention. In our view the applicants can therefore have no right of appeal because their claims to remain in Hong Kong raise no issue which the Review Board can decide.

It may seem that some plausibility is given to the applicants' case by the fact that they have come in boats from China, possibly after living there in less than comfortable circumstances. But the argument would be exactly the same if they had come from ten years of comfortable life in Melbourne and were resisting being sent back to Australia. We cannot accept that such a claim would raise any issue falling within the jurisdiction of a Refugee Status Review board. In our view, the 1991 amendment to section 13D(3) was intended to make this clear. We therefore think that as a matter of construction of the Ordinance, the applicants have no right of appeal to a refugee status tribunal. The decision to remove them to China is not a decision "under section 13A(1)" within the meaning of section 13D(3).

This leaves the question of a legitimate expectations said to have been created by the announcement in the boat. The passengers were told that they would undergo "screening" to determine whether they were entitled to remain in Hong Kong as refugees. If not, they would be sent back to Vietnam. "Screening" is not a term of art in English and we doubt whether in Vietnamese it could have conveyed more than an assurance that any claim to remain in Hong Kong as refugee would be considered. It said nothing about the grounds upon which the decision would be made. We do not think that the announcement was at all inconsistent with a policy of rejecting Chinese residents without inquiry into whether they had the status of refugees from Vietnam. On the other hand, if the applicants were sophisticated enough to know that, under Hong Kong immigration practice, "screening" involved a determination as to refugee status, they would also have known that under Hong Kong immigration practice, that status was regarded as irrelevant to whether Chinese residents should be repatriated to China.

For these reasons we would have humbly advised Her Majesty that the appeal should be dismissed.

 


 

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