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CUSTOMARY NON-REFOULEMENT OF REFUGEES AND AUTOMATIC INCORPORATION INTO THE COMMON LAW: A HONG KONG PERSPECTIVE

Published online by Cambridge University Press:  24 April 2009

Oliver Jones
Oliver Jones
Affiliation:
LLB (Hons) BA (Int'l Studies) (UTS); BCL (Oxon). University Medal in Law 2001, British Chevening Scholarship 2004–2005. Assistant Professor, Faculty of Law, University of Hong Kong. Formerly Associate, Public International Law and International Commercial Arbitration, Herbert Smith LLP, London.
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International & Comparative Law Quarterly , Volume 58 , Issue 2 , April 2009 , pp. 443 - 468
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Copyright © 2009 British Institute of International and Comparative Law

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References

1 Hong Kong Population Census 2006, http://www.bycensus2006.gov.hk (visited 7 September 2008).

2 (1951) 189 UNTS 150; (1967) 606 UNTS 267.

3 [2008] 2 HKC 167.

4 [1977] 1 QB 529.

5 Refugees Convention, Art 40 and Protocol, Art 7(3). See Vienna Convention on Law of Treaties (1969) 1155 UNTS 331, Art 29; A Aust, Modern Treaty Law and Practice (CUP, Cambridge, 2007) 203. Jackson, Compare N, ‘Legal Regime of Hong Kong After 1997: an Examination of the Joint Declaration’ (1987) 5 International Tax and Business Lawyer 377, 406Google Scholar.

6 Lord Trefgarne, Parliamentary Under-Secretary of State for Armed Forces, House of Lords Debates, 27 February 1985, cited in R Mushkat, One Country, Two International Legal Personalities: the Case of Hong Kong (HKUP, Hong Kong, 1997) 87 n 9. This was judicially endorsed as being for ‘obvious practical reasons’: Nguyen Tuan Cuong v Director of Immigration [1997] 1 WLR 68, 77 (Lords Goff of Chieveley and Hoffmann (dissenting)) (‘Nguyen’). See also Ngo Thi Minh Huong (An Infant) v Director of Immigration (2001) 9 HKPLR 186, 192 (Yeung J).

7 Joint Declaration on Question of Hong Kong (1984) 1399 UNTS 61, Annex I, sec XI. This is a treaty: Tang Ping-Hoi v Attorney-General [1987] HKLR 324; Aust (n 5), pp 28–29. See also Basic Law, Art 153. For other relevant law, see Chan, J, ‘State succession to human rights treaties: Hong Kong and the ICCPR’ (1996) 45(4) ICLQ 928CrossRefGoogle Scholar; Yu, P, ‘Succession By Estoppel: Hong Kong's succession to the ICCPR’ (2000) 27 Pepp LR 53Google Scholar. Compare Aust (n 5), 374, 386, 387–390.

8 See, by negative implication ‘Position of PRC and UK on Multilateral Treaties Applying to Hong Kong’ (1997) 36 ILM 1675 1676 para IV.

9 Refugees Convention, Art 41; Refugees Protocol, Art 6.

10 Burmester, H, ‘Federal Clauses: an Australian Perspective’ (1985) 34 ICLQ 522, 527CrossRefGoogle Scholar; J Trone, Federal Constitutions and International Relations (St Lucia: UQP, 2001), 12–13, 17–18; Aust (n 5) 212. The rule of attribution, under which the conduct of sub-national authorities is imputed to the central government as a matter of state responsibility, does not alter this position: J Crawford, International Law Commission's Articles on State Responsibility (Cambridge: Cambridge University Press, 2002) 14–16, 94, 97–98, 307.

11 Chan (n 7) 940 n 56. A mainland law purporting to implement the Convention and Protocol within Hong Kong would, on the current terms of the Basic Law, almost certainly be invalid: Basic Law, Art 18. However, this could be avoided if the mainland law were combined with a mainland reinterpretation of the Basic Law, which may supplement that instrument: Art 158; Director of Immigration v Chong Fung Yuen [2001] 2 HKLRD 533. The scope for such an extraordinary step, which is tantamount to a constitutional amendment, surely cannot preclude the operation of the federal clauses in the Convention and Protocol, which must refer to regular or at least unamended federal constitutional competence.

12 Winfat Enterprise (Hong Kong) Co Ltd v Attorney-General (HK) [1985] AC 733; Re: Chong Bing Keung (No 2) [2000] 2 HKLRD 571; Basic Law, Art.s 8, 19, 39. Compare the status of treaties in PRC law: H Xue and J Qian, ‘International Treaties in the Chinese Domestic Legal System’ in D Sloss and D Jinks (eds), Role of Domestic Courts in Treaty Enforcement: a Comparative Study (Cambridge, CUP, forthcoming), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1157501 (visited 10 November 2008); L Feng, ‘Foreign Relations’, Halsbury's Laws of Hong Kong, [190.005]-[190.009].

13 Mushkat, R, ‘Refuge in Hong Kong’ (1989) 1(4) International Journal of Refugee Law 449, 450–451.CrossRefGoogle Scholar

14 Bronée, S, ‘History of the Comprehensive Plan of Action’ (1993) 5(4) International Journal of Refugee Law 534, 535–537CrossRefGoogle Scholar, 541 (‘Bronée’).

15 Smith, A, ‘Rough Road for Vietnamese Visa Applicants in Hong Kong: Legal Assistance for Vietnamese Asylum Seekers v Department of State’ (1995–1996) 21 NCJ Int'l L & Com Reg 649, 650.Google Scholar

16 See further Nguyen (n 6) 77 80–81 (Lords Goff of Chieveley and Hoffman [dissenting]).

17 Mushkat, R, ‘Implementation of the CPA in Hong Kong: Compatibility with International Standards’ (1993) 5 Int'l Jnl of Refugee Law 559, 560.Google Scholar

18 Re: Chung Tu Quan [1995] 1 HKC 566 (‘Chung Tu Quan’), 572 (Keith J), reversed on other grounds: Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97 (‘Tan Te Lam’). Nguyen (n 6), 77, 80–81 (Lords Goff of Chieveley and Hoffmann (dissenting)).

19 Immigration Ordinance, ss 13A, 13D. The rationale is explained in Nguyen (n 6), 78 (Lords Goff of Chieveley and Hoffman (dissenting)) and Mushkat, R, ‘Refugees in Hong Kong: Legal Provisions and Policies’ (1980) 10 HKLJ 169, 170–172Google Scholar; Mushkat (n 13) 459–46. For judicial review and legislative reinforcement, see Re: Pham Van Ngo [1991] 1 HKLR 499; Tan Te Lam (n 18; Nguyen (n 6); Whitney, K, ‘There is No Future for Refugees in Chinese Hong Kong’ (1998) 18 Boston College Third World Law Journal 1, 14–15Google Scholar. Compare, more recently, A v Director of Immigration [2008] 4 HKLRD 752.

20 Press release by Secretary for Security, Ms Regina Ip, ‘Plan to Integrate Vietnamese Refugees and Migrants Announced’, 22 February 2000, http://www.info.gov.hk/gia/general/200002/22/0222141.htm (visited 24 August 2008).

21 Mushkat, R, ‘Refuge in Hong Kong’ (1989) 1(4) International Journal of Refugee Law 449CrossRefGoogle Scholar, 468 n 70 470–471, 475 n 106, 476 n 111.

22 Moc A Pao v Director of Immigration (unreported, Supreme Court of Hong Kong, 19 May 1997).

23 ‘International Conference on Indo-Chinese Refugees: Declaration and Comprehensive Plan of Action’ (1989) 1(4) International Journal of Refugee Law 574, esp 577–578, 579–580.

24 A Smith, ‘Rough Road for Vietnamese Visa Applicants in Hong Kong: Legal Assistance for Vietnamese Asylum Seekers v Department of State’ (1995–1996) 21 NCJ Int'l L & Com Reg 649, 651; Bronée, S, ‘History of the Comprehensive Plan of Action’ (1993) 5(4) International Journal of Refugee Law 534, 542CrossRefGoogle Scholar; McCalmon, B, ‘Winding it up in Hong Kong: the Increasing Impatience With Vietnamese Asylum Seekers’ (1994) 8 Georgetown Immigration Law Journal 333, 339Google Scholar; Chung Tu Quan (n 18) 576–579 (Keith J).

25 See, eg, Hathaway, J, ‘Labeling the Boat People: the Failure of the Human Rights Mandate of the Comprehensive Plan of Action for Indochinese RefugeesSeekers’ (1993) 15 HRQ 686CrossRefGoogle Scholar.

26 See, eg, Director of Immigration; Ex parte Refugee Status Review Board [1992] 1 HKLR 287, 291, 293 (Mortimer J); Le Tu Phuong v Director of Immigration [1994] 2 HKLR 212 (‘Le’), 215–216 (the Court); Luu The Truoung v Chairman of the Refugee Status Review Board [2003] 2 HKLRD 351 (‘Luu’), 356 (Hartmann J). Most of those screened were found not to have refugee status: Chung Tu Quan (n 18) 572 (Keith J). Criticisms of the process are recounted by Mushkat (n 13), 474–476; B McCalmon (n 24), 338–339. See also Mushkat (n 17), esp 560–563.

27 Le (n 26) 220 (the Court); Luu (n 26), 364 (Hartmann J). Hong Kong courts, despite an ouster clause in s 13F(8), performed judicial review of the Board's decisions: Luu (n 26) 363 (Hartmann J).

28 Indeed, such latitude would be consistent with the Court of Final Appeal's view that the Director of Immigration is not bound to consider humanitarian grounds when removing illegal immigrants: Lau Kong Yung v Director of Immigration [1999] 3 HKLRD 778 (‘Lau’), 808 (Li CJ).

29 Cap 115, s 13AA; C (n 3) 199.

30 D Cheung and A Gilbert, ‘Vietnamese Face 1996 Deadline to Relocate in Overseas Country; Refugees May Be Sent Back’, SCMP, 22 Feb 1994, cited in McCalmon (n 24), 339–340.

31 C (n 3) 171 would suggest it was not.

32 See n 20.

33 C (n 3) 170, 173–174.

34 ibid, 171. See also Secretary for Security v Prabakar [2005] 1 HKLRD 289 (‘Prabakar’), 294 (Li CJ).

35 Prabakar (n 34) 295.

36 ibid.

37 http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&id=129&chapter=4&lang=en#5 (visited 8 November 2008) (login information required).

38 Crimes (Torture) Ordinance (Cap 427).

39 Fugitive Offenders Ordinance (Cap 503), ss 3(1), 13(1) (‘the Ordinance’); Fugitive Offenders (Torture) Order (Cap 503I) (‘the Order’), s 2, Sch. Compare Third Periodic Report of China to Committee Against Torture (5 January 2000, UN Doc CAT/C/39/Add 2) (‘the Report’), para.s 95, 114; FB v Director of Immigration (unreported, Hong Kong Court of First Instance, Saunders J, 5 December 2008), para 112. As Saunders J notes, the Order has the effect that ‘an application by a government of a place outside Hong Kong to the surrender of the fugitive offender is made subject to the [Torture] Convention’. This means, in light of s 2 of the Order, that the Ordinance applies in relation to states parties to the Torture Convention ‘subject to limitations, restrictions, exceptions and qualifications’ in that instrument. Thus, no surrender under the Ordinance to such a state party may contravene Art 3(1). It is puzzling then why, much like the Report, Saunders J went on to state that ‘[c]onsequently, as a matter of discretion Hong Kong may refuse to surrender a person where that surrender may be in breach of the [Torture] Convention’.

40 Prabakar (n 34) 293, 294–295 (Li CJ); the Report (n 39), paras 128–130, para 122. There may be a corresponding, and automatically incorporated, peremptory norm of customary international law. However, the full implications of this are yet to be explored: RV v Director of Immigration [2008] 4 HKLRD 529, 547 (Hartmann J).

41 C (n 3) 177 (Hartmann J).

42 Prabakar (n 34) 293.

43 Prabakar v Secretary for Security (unreported, Hong Kong Court of Appeal, CACV 211/2002, 27 November 2002).

44 Prabakar (n 34) 293.

45 ibid 303.

46 ibid 303.

47 ibid 303. This broadly reflected English authority: R v Secretary of State for Home Department; Ex parte Yemoh [1988] Imm A R 595.

48 Prabakar (n 34), 305.

49 ibid 306.

50 ibid 305.

51 Aspects of the Government's approach have recently been successfully challenged in the courts: FB (n 39).

52 C (n 3) 177.

53 ibid 172–173. As to the applicants' other unsuccessful arguments, see 173–174, 206–207.

54 ibid 173. See also Prabakar (n 34) 302 (Li CJ). As to the basis of the immunity, see: International Organisations and Diplomatic Privileges Ordinance (Cap 190); United Nations (Cap 190H), para 12, when read with UNGA Res 428(V), 14 December 1950, Annex. See also Basic Law Art 19, Annex III, para 6; Promulgation of National Laws 1997 (Cap 2402), Sch 5, Art 24, when read with United Nations Charter, Art 105.

55 C (n 3) 182.

56 ibid 183.

57 ibid 183.

58 ibid 183–184.

59 ibid 188–193. As Hartmann J indicated, the possibility of customary non-refoulement of refugees had already been noted by in R (European Roma Rights Centre) v Prague Immigration Officer [2005] 2 AC 1, 38 (Lord Bingham) (Lord Hope; Baroness Hale and Lord Carswell agreeing). There is no wider customary entitlement to asylum: T v Immigration Officer [1996] AC 742, 758 (Lord Mustill). For further authority as to the customary status of non-refoulement of refugees, see Declaration of States Parties to the 1951 Convention and/or its 1967 Protocol, UN Doc HCR/MMSP/2001/09 16 Jan 2002.

60 C (n 3), 169, 174, 187, 203–204.

61 ibid 202–204.

62 ibid 196.

63 ibid 207.

64 [1990] 2 HKLR 466.

65 C (n 3) 187. Note that counsel for the applicants invited Hartmann J not to follow Lee (n 64) on the ground that it was per incuriam. His Lordship rejected this submission on the merits: C (n 3), 188. However, the per incuriam rule ‘does not apply to a decision of a court superior to that in which the rule is sought to be invoked’: Inglis v Loh Lai Kuen Eda [2005] 3 HKC 115, 127 (Ma CJHC) (Stock and Yeung JJA agreeing); Baker v R [1975] AC 774, 788 (Lord Diplock), 795 (Lord Salmon). This lack of availability is doubtless the same since the per incuriam rule was replaced with a ‘plainly wrong’ test for decisions of the Court of Appeal: Solicitor (24/07) v Law Society of Hong Kong [2008] 2 HKLRD 576, 597–598 (Li CJ).

66 C (n 3) 197–198.

67 ibid 197–198.

68 ibid 199–200.

69 ibid 198.

70 ibid 198.

71 ibid 201–202.

72 ibid 184–185.

73 [1939] AC 160.

74 ibid 168 (Lord Atkin). This judgment, on appeal from Hong Kong, remains binding on all Hong Kong courts with the exception of the CFA: Solicitor (24/07) (n 65), 586, 590 (Li CJ).

75 [1976] QB 606.

76 ibid 626.

77 C (n 3) 185–186.

78 ibid 187–188, 196, 202.

79 [1991] 1 AC 696.

80 ibid 748 (Lord Bridge), 751 (Lord Templeman), 757, 761 (Lord Ackner) and 766 (Lord Lowry). See also, eg, R v Ministry of Defence; Ex parte Smith [1996] QB 517 (‘Smith’) 554 (Sir Thomas Bingham MR). See also Premalal v Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 117, 138, 139 (Einfeld J).

81 Bahadur v Secretary for Security [2000] 2 HKLRD 113, 125 (Mayo VP, Keith and Ribeiro JJA).

82 C (n 3) 204.

83 Saad v Secretary of State for the Home Department [2002] Imm AR 471, 476–477 (Lord Phillips MR, Schieman and Clarke LJJ).

84 See, by analogy, R (Peupushi) v CPS [2004] EHWC 798, [37]–[38] (Thomas LJ).

85 C (n 3) 202.

86 Brind (n 79), 748 (Lord Bridge). This has been criticized in F A R Bennion, Bennion on Statutory Interpretation (5th ed, 2008) 821.

87 R v Chief Immigration Officer; Ex parte Salamat Bibi [1976] 1 WLR 979 (‘Bibi’), 984–985 (Lord Denning MR); Fernandes v Secretary of State for Home Department [1981] Imm A R 1, 5–6 (Waller LJ), 6–7 (Ackner LJ); R v Secretary of State for Home Department; Ex parte Kirkwood [1984] 1 WLR 913 (‘Kirkwood’), 918–919 (Mann J). See also Smith (n 80) 558 (Sir Thomas Bingham MR). Note this position was recently affirmed by a majority of the House of Lords: R (Hurst) v Coroner for Northern District London [2007] 2 AC 189. Compare the signs of retreat in R v Khan [1997] AC 558, 582 (Lord Nolan) (Lord Keith, Lord Browne-Wilkinson, Lord Slynn and Lord Nicholls agreeing); Chan Mei Yee v Director of Immigration (unreported, Court of First Instance, Cheung J, 13 July 2000), cf Chan To Foon v Director of Immigration [2001] 3 HKLRD 109; Baker v Canada [1999] 2 SCR 817. See the ambivalence in Tavita v Minister of Immigration [1994] 2 NZLR 257 and C Inc v Australian Crime Commission [2008] FCA 1806 [54], [58] (Reeves J).

88 Bibi (n 87) and Kirkwood (n 87) cited in Lee (n 64) 470 (the Court).

89 R v Secretary of State; Ex parte Ali [2000] Imm AR 134, 143 (Collins J); Re: Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 32 (McHugh and Gummow JJ).

90 [1997] 1 WLR 839.

91 ibid 867 (Lord Hope). See also R v DPP; Ex parte Kebilene [2000] 2 AC 326, 367–368 (Lord Steyn); Ali (n 89), 143. This is consistent with wider rules: Chiu v Minister for Immigration [1994] 2 NZLR 541. However, subsequent authority requires: (a) pronounced incorrectness as to the treaty; (b) clear authority on or uncontroversial resolution of its meaning or application; and (c) evidence that the correct approach as to the treaty would have led to a different decision: Akhtar v Secretary of State [2001] SLT 1239; R (Corner House Research) v Director of Serious Fraud Office [2008] 3 WLR 568.

92 While Art 13 contains a broader authorization for the Hong Kong government to ‘conduct relevant external affairs on its own’, it must do so ‘in accordance with [the Basic Law]’, referring back to Art 151.

93 I Brownlie, Principles of Public International Law (OUP, Oxford, 6th ed, 2006), 58.

94 Mushkat (n 6); J Crawford, The Creation of States in International Law (OUP, Oxford, 2nd ed, 2005), pp 248–250.

95 Brownlie (n 93) 11, cited in C (n 3), 183. Hartmann J did not question whether persistent objection was available in relation to humanitarian law or human rights. It is, at least for now: H Lau, ‘Rethinking Persistent Objector Doctrine in International Human Rights Law’ (2005) 6 Chic JIL 495.

96 ICJ Reports 1950, 266, 277.

97 ICJ Reports 1986, 14 para 175.

98 Joint Declaration (n 7) Annex I, sec XIII, implemented by Art 39 of the Basic Law and notified to the UN Secretary General: see n 8, 1676 para II.

99 See, generally, Chan (n 7) esp 944 and Yu (n 7). See also Aust (n 5) 388–389.

100 R Swede, ‘One Territory, Three Systems: Hong Kong Bill of Rights’ (1995) 44 ICLQ 358, 373; Yu (n 7) 55, 63–64; Aust (n 5) 388–389.

101 Sun, S, ‘Understanding and Interpretation of ICCPR in Context of China's Possible Ratification’ (2007) 6(1) Chinese Journal of International Law 17–42.CrossRefGoogle Scholar

102 Human Rights Committee, ICCPR General Comment No 15, ‘Position of aliens under Covenant’, para 10.

103 There is also little mileage in a broader reservation made by the United Kingdom regarding the non-effect of rights under the ICCPR in the application of immigration legislation: see, generally, Tam Nga Yin v Director of Immigration (2001) 4 HKCFAR 251, 260 (Li CJ, Chan, Ribeiro PJJ, Sir Anthony Mason NPJ). While violation of those rights could overlap with refugee status, the reservation just described concerns the former and thus is not sufficiently targeted to ground persistent objection to the latter.

104 That insulation is a little more complex than Hartmann J suggested. Art 22 was originally the subject of a specific declaration regarding the detention, screening and entry into/departure from Hong Kong of children seeking refugee status. This declaration was withdrawn on 10 April 2003. However a broader reservation, resembling that mentioned in n 101 for the ICCPR, remains in place: http://www2.ohchr.org/english/bodies/ratification/11.htm#N4 (visited 8 January 2009). Its main concern is necessarily Art 22, being the key provision on the application of CROC in immigration cases: S Detrick, Commentary on United Nations Convention on Rights of Child (Martinus Nijhoff, Hague, 1999) 366. To the extent that the broader reservation impacts beyond Art 22, it is irrelevant to persistent objection for the reasons given in n 103. In any event, there appears to be some talk of its withdrawal: Second Periodic Report to Committee on Rights of Child (24 Sep 2004, CRC/C/83/Add.9), para 537; Concluding Observations of Committee on Rights of Child (30 September 2005, CRC/C/15/Add.271), para 8.

105 Detrick (n 104) 361–375, esp 366–369.

106 Mushkat, R, ‘Mandatory Repatriation of Asylum Seekers: is the Legal Norm of Non-Refoulement Dead?’ (1995) 25 HKLJ 42, 48–49Google Scholar. See also Second Periodic Report of United Kingdom to Committee Against Torture (26 June 1995, CAT/C/25/Add.6) para 343, ‘[a]ny [Vietnamese] person whom the Hong Kong Government or UNHCR believes to be a genuine refugee will not be repatriated’.

107 C (n 3) 199 (emphasis added).

108 (n 97) para 186.

109 Mushkat (n 106) 50–51.

110 Leung Kwok Hung v President of Legislative Council [2007] 1 HKLRD 387, 401 (Hartmann J).

111 Basic Law, Art 43, 48, 54, 59–60, 62.

112 ibid Art 66, 73.

113 ibid Art 80.

114 ibid Art s 48–50, 52.

115 ibid Art 48(2), 64.

116 P Wesley-Smith, ‘Executive Orders and the Basic Law’, Law Lectures for Practitioners (HKLJ, Hong Kong, 1998) 192–193.

117 ibid 193; HKSAR v Hung Chan Wa [2006] 3 HKLRD 841, para 31 (Li CJ).

118 [2007] 1 AC 136.

119 T Dunworth, ‘Hidden Anxieties: Customary International Law in New Zealand’ (2004) 2 NZJPIL 67, 79–80. See also H Waldock, ‘General Course on Public International Law’ (1962) 106 Recueil des Cours 5, 137, describing a ‘certain nervousness on the part of English judges as to the constitutional implications of the doctrine of incorporation’ and P Sales and J Clement, ‘International Law in Domestic Courts: the Developing Framework’ (2008) 124 LQR 388, 415, 418. Compare, eg, L Feng (n 12) [190.006]. The status of custom under PRC law is distinct:ibid.

120 The same result could be achieved by concluding a treaty that overrides a custom: Sales (n 119) 416.

121 Dunworth (n 119) 79, citing Baker (n 87) para 80 (Iacobucci J) (dissenting).

122 Tin Council Case [1990] AC 418, 513 (Lord Oliver). Compare Trendtex 556–557 (Lord Denning MR), cited with approval in FG Hemisphere Associates LLC v Democratic Republic of Congo (unreported, Hong Kong Court of First Instance, Reyes J, 12 December 2008), paras 79–80.

123 R Churchill and V Lowe, The Law of the Sea (MUP, Manchester, 3rd ed, 1999) 185.

124 See also Chow Hung Ching v R (1949) 77 CLR 449, 462 (Dixon J); Banco Nacional de Cuba v Sabbatinoi 376 US 398 (1964), 428 (Harlan J); R v Secretary of State for Foreign and Commonwealth Affairs; Nulyarimma v Thompson (1999) 165 ALR 621, 629 (Wilcox J).

125 S Fatima, ‘Using International Law in Domestic Courts—Part III: Customary International Law’ (2003) 8 JR 235, 239–240; Hutchinson v Newbury Magistrates' Court [2000] EWHC QB 61, [29]–[32], [36].

126 Dunworth (n 119) 69.

127 See, eg, Saad (n 83) 472–473, 474–475, 476, 490 (Lord Phillips MR, Schiemann and Clarke LJJ). As to the precise status of the rules, see Odelola v Secretary of State for Home Department [2008] EWCA Civ 308. The current document, Immigration Rules (HC 395), paras 327–352, dates back to 20 February 1980: Abdulaziz v United Kingdom (1985) 7 EHRR 471, 477. As in Hong Kong, refugee status may also preclude deportation for criminal offences: Immigration Rules (HC 395), para 380.

128 Asylum and Immigration Appeals Act 1993 (c23) s2j Roma (n 59) 44–45 (Lord Steyn).

129 [1974] QB 684.

130 ibid 708 (Orr LJ). See also 701, 703, 707 (Lord Denning MR) and 710 (Lawton LJ).

131 This refers to Australia's resistance the landing of MV Tampa in a remote island territory, following that vessel's rescue of a large number of asylum seekers at sea. Legal commentary on these events may be found in, for example, (2002) 13(2) Public Law Review 87–142. See also E Wilheim, ‘MV Tampa: the Australian response’ (2003) 15 Int'l Journal of Refugee Law 161.

132 (2001) 110 FCR 491.

133 ibid 514 (Beaumont J) and 545 (French J). Compare 508 (Black CJ), describing the relevant legislation as a ‘very comprehensive regime’.

134 Roma (n 59) 27 (Lord Bingham) (Lord Hope; Baroness Hale and Lord Carswell agreeing).

135 See, under s 109 of the Australian Constitution, regarding inconsistency between federal and state law, Western Australia v Commonwealth (1995) 183 CLR 373, [109] (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ). Such jurisprudence is relevant to Chung inconsistency: Waldock (n 119), 122. Compare other forms of inconsistency: Burrardview Neighbourhood Association v Vancouver [2007] 2 SCR 86; Kutner v Phillips [1891] 2 QB 267, 271–272 (AL Smith J); USA v Jennings [1983] AC 624, 643–644; Shergold v Tanner (2002) 209 CLR 126, 136–137; B McPherson, Reception of English Law Abroad (Brisbane, Supreme Court of Queensland Library, 2007) 162–163, 168–169, 360–363.

136 Telstra Corp v Worthing (1999) 197 CLR 61, 76 (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).

137 ibid 78.

138 Medical Council of Hong Kong v Chow Siu Shek [2000] 2 HKLRD 674, 683 (Bokhary PJ) (Li CJ, Litton and Ching PJJ and Sir Anthony Mason NPJ agreeing).

139 Bennion (n 86) 12–13, 511–539, 544–548, Appendices A and B. See also the various papers collected at http://www.francisbennion.com/2008/014.htm (visited 6 September 2008).

140 Bennion (n 86) 523, 525.

141 Section 11 relevantly reads ‘An immigration officer may … give [a] person permission to land [or] refuse him such permission’. Likewise, s 13 states ‘The Director may at any time authorize a person who landed unlawfully in Hong Kong to remain in Hong Kong … ’. There are supplementary powers of removal in ss 18 and 19.

142 Bennion (n 86) 443–444. Compare pp 498–499. As Bennion notes 443, a broad discretion is not, of itself, ambiguous.

143 ibid 443–444, 455–456, 864–869.

144 ibid 533.

145 ibid 866.

146 ibid 534.

147 ibid 682–683, 817–824.

148 Aust (n 5) Ch 3, esp 56–57.

149 Bibi (n 87) 986 (Roskill LJ).

150 See, eg, R v Secretary of State for Home Department; Ex parte Simms [2000] 2 AC 115 (‘Simms’), 131 (Lord Hoffmann).

151 See, eg, R v Secretary of State for Home Department; Ex parte Pierson [1998] AC 539, 575 (Lord Browne-Wilkinson).

152 Simms (n 149) 131.

153 R v Secretary of State for Home Department; Ex parte Stafford [1999] 2 AC 38, 49 (Lord Steyn) (Lord Goff, Lord Browne-Wilkinson, Lord Slynn and Lord Clyde agreeing).

154 S Fatima, Using International Law in Domestic Courts (Oxford, Hart Publishing, 2005) 316.

155 Sellers v Maritime Safety Inspector [1999] 2 NZLR 44 (‘Sellers’), 61, 62 (Keith J, for the Court); Attorney-General v Zaoui [2005] NZSC 38, [90] (Keith J, for the Court). Compare Ashby v Minister of Immigration [1981] 1 NZLR 223.

156 Sellers (n 155) 62.

157 ibid 61.

158 R v Hape [2007] 2 SCR 292 (‘Hape’), [53] (McLachlin CJ, LeBel, Deschamps, Fish and Charron JJ).

159 Jones (n 118) 155, 159 (Lord Bingham); Sales (n 119) 413–420.

160 Bennion (n 86) has criticized Brind on other grounds: see 821.

161 Nor, for the same reason, were any separate presumptions, such as preservation of the common law: Bennion (n 86) 814–815. The position is obviously different in the UK, following the incorporation of non-refoulement of refugees into domestic law: see n 128; R v Secretary of State for Home Department; Ex parte Adan [2001] 2 AC 477, 526, 527, 531. It should be added that it seems wrong to sidestep the above reasoning simply by pointing to the potential overlap between fundamental rights attracting the principle of legality (or the broadly related principle against doubtful penalization) and non-refoulement of refugees, eg on matters such as human life or health: see, generally, Bennion (n 86) 822–823, 825–836, 844–845. First, it is not obvious that the principle of legality applies in relation to extra-territorial violations relevantly divorced from the home government: A v Secretary of State for Home Department (No 2) [2006] 2 AC 221; Roma (n 59) 40–41. Further, by one means or another, Hong Kong courts have refused to limit the general discretions according to such matters: Lau (n 28), 808; Bahadur (n 81), 125; Tran Van Tien v Director of Immigration [1997] HKLRD 183, 189–191, 194. Of course, the principle of legality resembles remedial interpretation under s 3 of the HRA. However, the equivalent of the latter in Hong Kong is, in relation to rights recognised by the ICCPR, unavailable in the immigration context: Bill of Rights Ordinance (Cap 383) s 8 Arts 3 and 5, s 11; Tam Nga Yin (n 103), 260; Koon Wing Yee v Insider Dealing Tribunal [2008] 3 HKLRD 372. It is likewise, in relation to other constitutionally protected rights, arguably unavailable in respect of matters outside of Hong Kong, again where relevantly divorced from the home government: see Basic Law, Art 41; HKSAR v Lam Kwong Wai [2006] 3 HKLRD 372 and, generally, Chu Woan Chyi v Director of Immigration [2007] 3 HKC 168, 190–192. Compare, eg, Sheekh v Netherlands (2007) 45 EHRR 50, [135].

162 See, eg, Saad (n 83) 475, 489–490; Sales (n 119) 402.

163 Pepper v Hart [1993] AC 593; Bennion (n 86), pp 616–640; PCCW-HKT Telephone Ltd v Telecommunications Authority [2005] 3 HKLRD 235, 248 (Bokhary PJ) (Li CJ, Chan PJ, Ribeiro PJ and Sir Anthony Mason NPJ agreeing). Compare Commissioner of Rating and Valuation v Agrila Ltd [2001] 2 HKLRD 36, 55 (Sir Anthony Mason NPJ) (Li CJ, Bokhary PJ, Chan PJ and Litton NPJ agreeing); HKSAR v Yav Mee Kwan [2004] 1 HKLRD A6; Solicitor (24/7) v Law Society of Hong Kong [2008] 2 HKLRD 576.

164 See, eg, Lai Tak Shing v Director of Home Affairs (unreported, Hong Kong Court of Appeal, CACV 201/2005, 9 October 2006) [23]–[25] (Cheung JA) (Yam and Sakhrani JJA agreeing), reversed on other grounds: (unreported, Hong Kong Court of Final Appeal, FACV 5/2007, 5 November 2007). While Hong Kong law generously recognises legitimate expectations, a procedural legitimate expectation is simply a more arduous route to the relevant consideration point made below. The relevant substantive legitimate expectation, presumably based on Hong Kong's practice of not repatriating refugees, is not inconceivable. If found, it would limit the general discretions. However, it would impact on an order by the Hong Kong government for the repatriation of refugees, which is highly unlikely: Ng Siu Tung v Director of Immigration [2002] 1 HKLRD 561.

165 Bennion (n 86) 598–604, 708–710, 1155–1157, 1168–1169.

166 ibid 944–959, 962–963. This accords with the views of the CFA: Lau (n 28), 808 (Li CJ).

167 A similar argument could be made based on the limitation on the discretion to refuse surrender in s 5 of the Fugitive Offenders Ordinance.

168 Fatima (n 154) 240.

169 See, eg, Littrell v United States of America (No 2) [1995] 1 WLR 82; F G Hemisphere (n 122).

170 See, eg, Re: Piracy Jure Gentium [1934] AC 586, as interpreted in Jones (n 118), 158 (Lord Bingham).

171 See, eg, Sandline International v Papua New Guinea (1998) 117 ILR 552.

172 [2003] EWHC 2222, leave to appeal refused: [2004] EWCA Civ 997.

173 [2003] EWHC 2222, [117] (Ouseley J).

174 Crown Proceedings Act 1947 (UK). See also Crown Proceedings Ordinance (Cap 300). As to the status of the latter, see generally G Johnston, Conflict of Laws in Hong Kong (Hong Kong, Sweet & Maxwell, 2005), [4.053]–[4.055].

175 ibid [274]; [2004] EWCA Civ 997 [20] (Sedley and Neuberger LJJ). See also P Hogg and P Monahan, Liability of the Crown (Carswell, Toronto, 3rd ed, 2000) Ch 6.

176 [2003] EWHC 2222, [383].

177 [2004] EWCA Civ 997, [22]–[25] (Sedley and Neuberger LJJ). The point has since been left open: R (Binyan Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2008] EWHC 2048, [184] (Thomas LJ and Lloyd Jones J).

178 [2003] EWHC 2222, [375]–[382].

179 Hogg (n 175) 143.

180 There may be an analogy with the tort of false imprisonment following a purported exercise of a power to detain: D v Home Office [2006] 1 WLR 1003. Note, though, that in Chagos Islanders, Ouseley J saw ‘no parallel in false imprisonment’: [2003] EWHC 2222, [379].

181 ibid.

182 See, generally, Hogg (n 175) 128–136.

183 [1939] AC 160, 168 (Lord Atkin, for the Board).

184 Hogg (n 175) 142–149. It is not to the point that public international law imposes the obligation on the state, with the conduct of officials merely being subject to a rule of attribution. The discretion of the courts under Trendtex reflects a latitude that states undoubtedly have under public international law regarding the approach they take to bringing public international norms to the municipal plane.

185 Crown Proceedings Act 1947 (UK), s 2(1); Crown Proceedings Ordinance (Cap 300), s 4(1). As Hogg (n 175) notes, 142, ‘ … the Crown is liable in tort only under recognized heads of private tortious liability. There is no special “public” law of torts’.

186 Hogg (n 175) 110–111.

187 Note that the position could be different if the tort of exile were excluded by statute or if issues of non-justiciability arose: see, eg, West Rand Central Gold Mining Company v King [1905] 2 KB 391; compare R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] 3 WLR 955. The same would not necessarily flow from the tort of breach of statutory duty. It requires (a) a breach of a public obligation in favour of particular people; and (b) a legislative intent to impose civil liability sounding in damages for that breach: see, eg, X (Minors) v Bedfordshire County Council [1995] 2 AC 633. If the second requirement were not fulfilled, it might well mean that a customary tort had also been excluded. However, the non-satisfaction of the first requirement, eg due to the presence of a statutory discretion rather than an obligation or generality rather than specific beneficiaries, ought to have no such effect. Rather, if administrative conduct related to a provision of that character contravened a customary norm, then another, distinct form of civil liability, such as the tort of exile, could simply step in. In this way, customary torts could co-exist with the tort of breach of statutory duty, much as it already co-exists with others.

188 C (n 3), 184–185. See also R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet (No 3) [2000] 1 AC 147, 276 (Lord Millett).

189 See, in light of n 135, Australian Constitution, s 109.

190 Indeed, this is the view of the Canadian courts, albeit in a context where unincorporated conventional obligations may also be relevant considerations: Baker (n 87); Hape (n 158); Munar v Canada [2005] FC 1180; Okoloubu v Canada [2007] FC 1069.

191 It could also be argued that the Director or Immigration official, when taking into account the relevant consideration, could not have imputed to him or her the knowledge of the UNHCR. See, by analogy, R (National Association of Health Stores) v Department of Health [2005] EWCA Civ 154. Compare International Trader Ltd v Town Planning Appeal Board (unreported, Hong Kong Court of First Instance, A Cheung J, 15 November 2007) and authority cited there. Lastly the process may be vulnerable on the ground that the UNHCR, rather than the Director or immigration official, conducts interviewing on the Convention and Protocol: FB v Director of Immigration [2009] 1 HKC 133.