Student No.

: 2006403113
Course Code & Course LLAW 6073
Name:
Research Title (if applicable):
Word Count (if applicable): 5203 words (exclude
footnotes)
Question 1
Part A

Thailand has not signed the Refugee Convention and has no domestic legal framework
on refugee screening yet.1 However, by a diplomatic note the Thai government asserts
that it applies humanitarian conditions to asylum seekers, and observes the Convention
in practice.2 In 2016, Thailand has pledged to implement a new screening mechanism. 3
Given the above circumstances and the presence of UNHCR in Thailand, the analysis
below is based on provisions of the Convention and with qualifications where appropriate.

Therefore, subject to applicable exceptions, a person has to fulfill five elements of the
definition of a refugee in Article 1A(2) of the Refugee Convention before (s)he could be
qualified as such; each element will be considered in X's case.

Well-founded fear: objective standard

According to Wouters, the words "well-founded fear" means that there should be a present
or prospective risk of persecution that can be established objectively. 4 Is there a well-
founded fear of persecution in X's case? With the available information in the question, it
is difficult to assess-there is nothing to show that others who have protested against the
copper mine faced persecution or mistreatment. However there is online report stating
that "[a]s many as 10 villagers have been injured by police who fired rubber bullets at
them...for blocking a roadway to a controversial Chinese-run mine in the town of

1
UNHCR, "Thailand: Progress under the Global Strategy beyond detention 2014-2019, Mid 2016",
available at http://www.unhcr.org/57b583e57.pdf (accessed on 15 July 2017).
2
Diplomatic Note from Permanent Mission of Thailand to the United Nations Office, Geneva, Response
to LCHR Questionnaire on Detention of Asylum Seekers (Feb. 22, 2002), quoted in
https://www.humanrightsfirst.org/wp-content/uploads/pdf/Thailand.pdf (accessed on 5 July 2017)
3
"UNHCR welcomes Thailand's pledges towards a new refugee screening mechanism", available at
https://www.unhcr.or.th/en/news/UNHCR_welcomes_Thaipledges, accessed on 15 July 2017.
4
C.W. Wouters, International Legal Standards for the Protection from Refoulement (Intersentia, 2009), at
page 83.
Letpadaung".5 Assuming that X is protesting against the same copper mine, then there
are concrete facts that could support a "well-founded fear". However, there is a lack of
cases to establish what is "well-founded fear" at the international and domestic level, and
the outcome of the assessment largely depends on the credibility of X and her statements
relating to her personal circumstances,6 although the general circumstances relating to
protesters of the copper mine could be investigated. X will bear the burden of proof in
substantiating her story. 7

If the fear is indeed well-founded, given that it is the state authority who persecute
protestors, it is not practical for X to seek protection within Myanmar (i.e. seeking the
internal protection alterative). 8

Persecution reason: political opinion

Then is X holding a particular political opinion? Wouters said that "political" should be
interpreted broadly and refer to any type of opinion on the State, society or public cause,
and include non-conformist behaviour. 9

The problem question does not indicate whether the Letpadaung copper mine project is
sanctioned by the government in any manner. More information is needed to determine
whether the mine is purely a commercial venture with little social impact, though X
herself is an environmental activist. According to a report, 19% of the profits goes to

5
"As Many As 10 Myanmar Villagers Injured in Shooting at Letpadaung Copper Mine", Radio Free Asia,
available at

http://www.rfa.org/english/news/myanmar/as-many-as-10-myanmar-villagers-injured-in-shooting-at-
letpadaung-copper-mine-03242017164150.html
(accessed on 9 July 2017)
6
C.W. Wouters, International Legal Standards for the Protection from Refoulement (Intersentia, 2009), at
page 91.
7
Ibid at p. 95.
8
Ibid at p. 105.
9
Ibid at p. 75.
UMEHL which is owned by the military, and 51% goes to the Myanmar government. 10
The project is backed by Chinese funds. 11 Villagers are displaced from their homes
because of the project. 12 Hence, X is holding a political opinion in opposing the copper
mine project. This conclusion is strengthened by the fact that X is an environmental
activist. Alternatively, if X is member of a racial minority, a particular religion or social
group, she might be able to show that she is being persecuted on any of those grounds.

Alienage

The next element is alienage. This is fulfilled as X is now outside of her home country of
Myanmar and in Thailand. Note that her entry into Thailand is legal because she has a
tourist visa.

Lack of protection from Myanmar

This element is linked to whether there is a well-founded fear in the first place. If the
general circumstances surrounding the copper mine and her personal conditions
objectively lead to a well-founded fear, it is unreasonable to expect X to seek protection
from her home country Myanmar.

Next, X should be holding a Myanmar passport when crossing the border to Thailand,
because she is admitted as a tourist. However, the fact that she is holding such a passport
should not mean that Myanmar is still providing protection to her.

Unable to return to home country

Again, to show that X is unable to return to her home country, she needs to prove there is
a well-founded fear of persecution in the first place.

Any applicable exclusions?

According to article 1F of the Refugee Convention, the Convention does not apply to a

10
The Report: Myanmar 2016 (Oxford Business Group), at page 133.

11
Ibid.
12
Ibid.
person who "has committed a serious non-political crime outside the country of refuge
prior to his admission to that country as a refugee". Given that X blocked the entry
during protest, Myanmar government may argue that they could prosecute X for
trespassing, obstruction or similar offences under domestic law. However, it is hardly a
"serious non-political crime" to deny granting refugee status to X.

Protections under the Refugee Convention and the CAT Convention

Once X could prove that she is a refugee, given the Thai government's position on the
Refugee Convention, then Thailand has the obligation to afford her the protections under
the Convention if it is to be observed in practice. For example, under article 7, the
granting of rights to X should not be subject to the granting of similar treatment by
Myanmar. Thailand should, among other things, provide administrative assistance to X
(article 25), provide identity papers to her (article 27) and provide the possibility of
assimilation and naturalization to X (article 34). In respect of certain rights, such as the
freedom of religion (article 4), X shall be treated at least like Thais. On the other hand,
in respect of some other rights, such as the right to engage in wage-earning employment
(article 17), Thailand only need to treat X like other non-nationals.

In addition, the principle of non-refoulement is part of customary international law, and

is also enshrined in article 3 of the 1984 Convention against Torture and other Cruel,
Inhuman or Degrading Treatment or Punishment ("CAT Convention"). According to the
website of the Committee Against Torture, Thailand is a party to the CAT Convention. 13
Thailand should not deport X back to Myanmar if satisfied that there are substantial
grounds to believe that X is in danger of being subjected to torture under the CAT
Convention. It depends on the credibility of statements made by X herself.

Unfortunately, despite the elaborate analysis above, in practice, Thailand generally treats
all refugees as illegal immigrants if they are outside refugee camps, 14 and does not offer

13
Ratification of the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment, available at
http://www.ohchr.org/EN/HRBodies/CAT/Pages/CATIndex.aspx (accessed on 11 July 2017).
14
"Thailand: Refugee Policies Ad Hoc and Inadequate", available at
https://www.hrw.org/news/2012/09/13/thailand-refugee-policies-ad-hoc-and-inadequate (accessed on 15
July 2017).
much protection under the Convention to refugees.

Part B

Article 1F(b) exceptions of the Refugee Convention unlikely to apply

As mentioned in part A, Thailand has NOT ratified the Refugee Convention and therefore
not bound by it, though it has pledged to observe it in practice.

Under article 1F(b), if X has committed a serious non-political crime outside Thailand
prior to his admission to that country as a refugee, then it is not necessary to afford her
the protections of the Refugee Convention.

X blocked the way to the copper mine during protests. If trespassing, obstruction or
unauthorized protest (or a similar offence) is also a crime in Thailand. However, it is
doubtful whether such a crime is sufficiently serious to exclude the practical observance
of the Refugee Convention. Also, the offence was clearly politically motivated. Hence,
the article 1F(b) exclusion should not apply.

However, even if X is deported or extradited upon request of Myanmar, Thailand should

be satisfied that X will not be subject to cruel, inhuman or degrading treatment.
Otherwise, the Thai government could be in breach of its obligations under article 7 of
the ICCPR.

Option 1: Deport X because Myanmar could handle protesters reasonably?

Thailand’s sovereignty over its own territory means that she could control her borders. It
would mean that Thailand could deport X simply because X's visa has expired. If X will
face a risk of persecution (not just prosecution for an offence) in her home country, then
Thailand should not deport her back because of article 7 of ICCPR and the principle of
non-refoulement in customary international law. Nevertheless, the Letpadaung Taung
Investigation Commission Report15 shows that Myanmar government is able to empower

15
Charltons, "Myanmar - The Letpadaung Taung Investigation Commission issues final report into the
Letpadaung Taung copper mining project", available at
https://charltonsnaturalresources.com/en/news/157-myanmar-the-letpadaung-taung-investigation-
an independent commission to tackle this issue reasonably under parliamentary scrutiny,
and hence the Thai government may reasonably put forward a case that there is no
significant risk of persecution.

Option 2: Put X in border camps

As there are already a number of refugee camps along the Thai-Myanmar border already,
putting X in one of those camps is also a practical remedy and allows the possibility for
X to resettle to another country in future. However, this may cause more Burmese
especially from Letpadaung to flood into such camps and cause problems for Thailand.

Option 3: end practical observance of the Refugee Convention

If the first two options are not possible, a last resort is to renounce the practical observance
of the Refugee Convention. As Thailand has not actually ratified the Convention,
Thailand would not be in breach of its international law obligations. However it will
project a very bad image of Thailand in the international community, and goes against the
pledge of implementing better screening mechanisms.

Obligations under the Convention Against Torture

Thailand is also a party to the CAT convention. Hence, if deporting will subject her to
risk of cruel inhuman or degrading treatment, Thailand is under an obligation not to deport
her back to Myanmar under article 3 of the CAT Convention. Whether there is indeed
such a risk depends on the Thai government’s view on whether Myanmar could handle
the Letpadaung protesters under appropriate parliamentary scrutiny, as explained above.

Part C

Option 1: Seek asylum and wait in camps

The first option is to apply and wait for the Thai government to process a non-refoulement
claim, based on the analysis in part A of the question. Some asylum seekers do receive
a chance to resettle to another country. 16 However, the processing could take a long time.

commission-issues-final-report-into-the-letpadaung-taung-copper-mining-project (accessed on 16 July

2017)
16
“Thai border camp population constant despite third country resettlement”, available at
http://www.irinnews.org/report/92281/myanmar-thailand-thai-border-camp-population-constant-despite-
third-country-resettlement (accessed on 16 July 2017)
It would mean staying in one of the camps along the Thailand-Myanmar border for years.
While X is free from risk of persecution, she will be unable to seek any gainful
employment.

Option 2: flee further before visa expiry

If X has sufficient funds (which seems unlikely), she could choose to flee further to a
more refugee-friendly place, such as Canada, and lodge a refugee or non-refoulement
claim tin that jurisdiction instead of in Thailand.

Option 3: Return home

The one other choice is of course, head back to Myanmar and face prosecution, if the
consequences of facing prosecution is better than facing the uncertain future of having to
wait for a non-refoulement or refugee claim without gainful employment for years, and
X could expect to face humane treatment in prison.

Option 4: Illegal worker in Thailand

The last option for X is to register as a migrant worker, though the registration process is
said to be corrupt and X will have to return to Myanmar after four years. 17 In the absence
of such registration, if she works outside of the border camps, she is subject to arrest by
Thai authorities.

The above answer assumes she has no other nationalities and no family members that
could help her get another nationality, and therefore article 1C does not apply.

Question 2
While Asian 18 states demonstrate less commitment to the Refugee Convention than
counterparts in other parts of the world, it is an overstatement to say that there is a “total

17
"Thailand: Refugee Policies Ad Hoc and Inadequate", available at
https://www.hrw.org/news/2012/09/13/thailand-refugee-policies-ad-hoc-and-inadequate (accessed on 15
July 2017).
18
See footnote 1 of Sara E. Davies, "The Asian Rejection? International Refugee Law in Asia", Australian
Journal of Politics and History: Volume 52, Number 4, 2006. Asian states include thirty states: Afghanistan,
Azerbaijan, Kyrgyzstan, Laos, Malaysia, Mongolia, Myanmar, Nepal, North Korea, Pakistan, Philippines,
Singapore, South Korea, Sri Lanka, Tajikistan, Thailand, Turkmenistan, Uzbekistan and Vietnam.
lack of commitment” towards refugee law in general.

As Davies explained in her work19 there are three main common explanations why Asian
states did not accede to the Refugee Convention and its 1967 Protocol. First it is the
potential complications that could cause in a country’s foreign affairs and relations with
neighbours. Second, taking care of refugees require high economic costs. Third, it causes
great social disruption in the host countries. Davies also argued that the Refugee
Convention was too Eurocentric and did not involve Asian states in the drafting, and
hence they are not willing to sign and ratify the Refugee Convention. Moreover, a lot of
Asian states were not willing to take sides in the Cold War, during which "welcoming
refugees fleeing Communist persecution had political capital" 20 in Western states.

It is true that a lot of Asian States, especially those who are potential refugee producing
countries, have not acceded to the Refugee Convention. Compared to the legal protections
in Europe, Africa and the Americas, there seems to be a legal lacuna in the area of refugee
protection. However, it does not mean that there are no alternative legal and practical
protections for refugee.

The Refugee Convention is at least partially observed in practice

As mentioned in question 1, for example in Thailand, although the country has not ratified
the Refugee Convention, it has sent a diplomatic note to signify that it observes the
Refugee Convention in practice and apply humanitarian conditions to asylum seekers.
Apart from Thailand, a number of Asian regions also observe parts of the Refugee
Convention in practice, such as Hong Kong which screen claims under article 33 of the
Refugee Convention.

Non-refoulement principle is part of international law

At the U.N. level, Asian countries have not objected to General Assembly resolutions that

19
Sara E. Davies, "The Asian Rejection? International Refugee Law in Asia", Australian Journal of Politics
and History: Volume 52, Number 4, 2006.
20
Chatham House, "The Refugees Convention: why not scrap it?", available at
https://www.chathamhouse.org/sites/files/chathamhouse/public/Research/International%20Law/ilp201005
.pdf (accessed on 15 July 2017)
affirm the principle non-refoulement, i.e. not deporting them back to their originating
countries to face harm.21 Those Asian countries are accepting non-refoulement as part
of customary international law, though not expressly recognizing their status as refugees.

Accession to the Refugee Convention by Japan, China and Korea, and the varying
level of adherence to the rule of law amongst ASEAN countries

Moreover, taking “Asia” as a single unit is a Eurocentric view. There are some Asian
countries that signed or acceded to the Convention and the 1967 protocol, which renders
the Convention applicable to places outside Europe and after 1951. Japan, China and
Korea are the heavyweights who are parties to the Refugee Convention. 22

Moreover, the level of commitment to refugee law is quite different even in the most
advanced Asian economies. According to Flowers, South Korea quickly revised its
refugee policies in the 1990s, after the democratic reforms. 23 On the other hand, while
NGOs and the UNHCR have made progress in influencing Japanese refugee policy,
successes have been more limited because there is a desire amongst conservatives to
maintain social unity by keeping a homogeneous nation of Japanese, and there are
concerns about increased costs of social programs. 24

Amongst ASEAN countries, as explained by Jones, on one end of the spectrum such as
Malaysia, it is a "democratic, post-colonial, largely common-law jurisdiction with a
relatively strong tradition of the rule of law and a well-developed legal profession."25 At

21
For example see A/RES/51/75 at paragraph 3.

22
Petrice R. Flowers, "Failure to Protect Refugees?: Domestic Institutions, International Organizations,
and Civil Society in Japan", The Journal of Japanese Studies, Volume 34, Number 2, Summer 2008, pp.
333-361 at p 334.
23
Ibid.
24
Ibid at p. 343.
25
M Jones, "Moving beyond protection space: Developing a law of asylum in South East Asia" in S
Kneebone, D Stevens and L Baldassar (eds), Refugee Protection and the Role of Law: Conflicting Identities
the other end, Vietnam is "an autocratic, communist jurisdiction with no recent tradition
of the rule of law and a very weak legal profession". 26 In Malaysia, at least the courts
and the legal professions have the "capacity to argue and adjudicate claims concerning
obligations owed to refugees". 27 Putting all these countries under the label of "Asia"
does not paint a meaningful picture of their level of commitment to refugee law.

Comprehensive plan of action of 1989

Although many Asian states and territories are not signatories to the Refugee Convention,
it does not mean that they do not cooperate in times of crisis. In the wake of the
Vietnamese boat people problem, neighbouring countries came up with the
Comprehensive Plan of Action 1989 to resolve the crisis and resettle them. 28 Countries
endorsed the general principles of asylum and non-refoulement, though countries of first
asylum expected no refugees would stay in their countries for more than a specified period,
until they resettle in a third country.29 In Hong Kong, before 1988, Vietnamese people
who arrive in Hong Kong automatically acquire refugee status 30 and waited for
resettlement. Ultimately, Hong Kong also integrated some Vietnamese refugees that could
not be resettled to other countries.

This is an example which shows that Asian States favour case-by-case solutions in times
of crisis rather than a comprehensive refugee law. After all, states are most likely to hide
away from their responsibilities under refugee law when they are most needed in times
of crisis. A case-by-case approach could be more sensible in handling large scale crisis.
While Jones opines that negotiating "protection space" case by case undermines the

(Routledge London 2014), at footnote 17.

26
Ibid.
27
Ibid at Part 2.
28
W. Courtland Robinson, "The Comprehensive Plan of Action for Indochinese Refugees, 1989-1997:
Sharing the Burden and Passing the Buck", Journal of Refugee Studies vol. 17 (Oxford University Press
2004).
29
Ibid at p. 320.
30
Mark Daly, Refugee law in Hong Kong: building the legal infrastructure, Hong Kong Lawyer (September
2009), at p.15.
normative strength of obligations towards refugees of both states and UNHCR,31 when
compared to the lack of serious monitoring or enforcement mechanisms under the
Refugee Convention, it is difficult to say which approach is really better.

AALCO Bangkok principles of 1966 revised in 2001

Asian states also adhere to principles of refugee protection outside the Refugee
Convention. The 1966 Bangkok Principles on the Status and Treatment of Refugees
("Bangkok Principles") are a product of the Asian-African Legal Consultative
Organization (AALCO), which has been cooperating with UNHCR for years. 32 The
AALCO33 originated shortly after the 1955 Bandung Conference in Indonesia, one of the
formative meetings of the Non-Aligned Movement of states that sought to be neutral
between US and USSR during the Cold War. AALCO has 47 Member States in Africa,
Asia and the Middle East, including 23 countries that are not party to the Refugee
Convention.34

According to Peterson, the US sought to denigrate communist countries during the Cold
War, but unwilling to muster resources to assist the refugees. 35 In fact, many states did
not ratify the Refugee Convention because they view it is a Cold War instrument
privileging political refugees over others in need of protection, giving UN agencies
excessive power to interfere in their internal matters, shift burdens to developing countries,
and not consistently binding rich countries, 36 due to a lack of monitoring and enforcement

31
M Jones, "Moving beyond protection space: Developing a law of asylum in South East Asia" in S
Kneebone, D Stevens and L Baldassar (eds), Refugee Protection and the Role of Law: Conflicting Identities
(Routledge London 2014).
32
Secretary General Report: Seoul 2003, available at http://www.aalco.int/briefs2003/SG-REPORT-
SEOUL-2003.pdf (accessed on 16 July 2017), at para. 36.
33
Then known as the Asian-African Legal Consultative Committee (AALCC), see Ibid at para. 134.
34
Merrill Smith, "The Bangkok Principles on the Status and Treatment of Refugees", Rights in Exile (3
December 2011), available at http://rightsinexile.tumblr.com/post/13676403836/the-bangkok-principles-
on-the-status-and-treatment (accessed on 16 July 2017)
35
Glen Peterson, "To Be or Not to Be a Refugee: The International Politics of the Hong Kong Refugee
Crisis, 1949–55", The Journal of Imperial and Commonwealth History, Vol. 36, No. 2, June 2008, pp. 171–
195, at p. 177.
36
Chowdhury R. Abrar, ‘Legal protection of refugees in South Asia’, Forced Migration Review,No.10
mechanisms. Moreover, as Peterson has demonstrated, the lingering mentality of
colonialism in the early days of the UNHCR meant that the organization is very much
focused on European refugees in the 1950s, and therefore the development of an
international refugee regime was slower in Asia.37

AALCO only adopted the final text of the Bangkok Principles at its 40th Session in New
Delhi, 24 June 2001. 38 But the Bangkok Principles were applied even as early as 1981
when Pakistan cited their expanded refugee definition in according Afghan refugees
prima facie group protection, according to Oberoi. 39 Moreover, the definition of
"refugee" in the Bangkok principles is more comprehensive because in article I.2,
"refugee" also includes "every person, who, owing to external aggression, occupation,
foreign domination or events seriously disturbing public order...is compelled to leave his
place of habitual residence".

Regional protection framework e.g. Bali process

The Bali Process is an official international forum, established in 2002, to facilitate

discussion about issues relating to people smuggling, human trafficking and related
transnational crime and providing appropriate responses, in particular among ASEAN
countries. Two of the goals of the Bali Process are: first, assisting countries to adopt best
practices in asylum management, in accordance with the principles of the Refugees
Convention; second, the implementation of a regional cooperation framework under
which interested parties can reduce irregular movement through the region. 40 This
shows that Asian countries would like to increase their capacity in handling refugees.

The CAT Convention

(April 2001), pp.21–23.

37
Glen Peterson, "The Uneven Development of the International Refugee Regime in Postwar Asia:
Evidence from China, Hong Kong and Indonesia", Journal of Refugee Studies Vol. 25, No. 3 (2012).
38
AALCO, "Final Text of the AALCO's 1966 Bangkok Principles on Status and Treatment of Refugees"
as adopted on 24 June 2011 at the AALCO's 40th Session, New Delhi.
39
Pia Oberoi, "Developments: Regional Initiatives on Refugee Protection in South Asia", International
Journal of Refugee Law (1999) 11 (1), pp.193-201.
40
Susan Kneebone(ed.), Comparative Regional Protection Frameworks for Refugees (Routledge 2017),
at pp. 33-34.
Similar to Hong Kong, a large number of Asian countries have signed and ratified the
Convention Against Torture. While a refugee having a “well-founded fear” of persecution
is different from a person entitled to non-refoulement protection because of torture under
article 3 of the CAT Convention, the scope of protection provided by article 33 the
Refugee Convention and article 3 of the CAT Convention substantially overlap. Since
the CAT Convention was unlike the Refugee Convention, which was tainted by Cold War
politics, more developing countries in the Middle East and South East Asia have ratified
the CAT Convention.

Conclusion

To conclude, it is too dogmatic to say that Asian states have a total lack of commitment
to refugee law, despite the fact that a lot of them have not signed or ratified the Refugee
Convention. All states have their political concerns and resource constraints in
providing refugee protection, even for developed nations in Europe and in North America.
The experience in Asia shows that there are alternative international protections and
limited material assistance rendered during crisis.

Question 3

It was once said that "cats and dogs have more protection under Hong Kong law than
refugees do".41 The situation has been improving, albeit slowly, since the introduction
of the USM scheme and reducing reliance on UNHCR for refugee screening.

CAT and Hong Kong's other obligations

Since 1992, the CAT Convention has been applied to Hong Kong. Article 3 of the CAT
Convention provides that no State Party shall expel, return or extradite a person to another
State where there are substantial grounds for believing that he would be in danger of being
subjected to torture. 42 Moreover, under article 3 of the Hong Kong Bill of Rights, no one

41
Mark Daly, "Refugee law in Hong Kong: building the legal infrastructure", Hong Kong Lawyer
(September 2009), at p.15, quoting "Pets better served than refugees, say lawyers", South China Morning
Post, 5 December 2004.
42
Panel on Security Background brief prepared by the Legislative Council Secretariat for the meeting on
shall be subject to cruel, inhuman or degrading treatment. As this right is non-derogable,
the s.11 immigration exception in the Bill of Rights Ordinance does not apply to article
3, according to Umbamaka.43

Regarding the Refugee Convention, Cox commented that China, which suffered from
colonialism, is "hypocritical and ironic" in excluding HKSAR from the territorial
application of the Refugee Convention because the territorial application clause is
"[a]...device utilized by colonial powers to limit...their obligations regarding human
rights". 44 However, I find that there is an air of unreality in his criticism: not many
people in Hong Kong have the appetite to assist refugees because of the memories of the
Vietnamese boat crisis. And as an example, in the context of the Convention for the
protection of National Minorities, the Danish government made its position clear that the
Convention could not be applied in the Faeroer Islands and Greenland nor to Faeroese or
Greenlanders in mainland Denmark. 45 Excluding the application of a treaty in an
autonomous region is not as unusual as Cox suggest.

As a matter of demarcation between the Central People's Government ("CPG") and

HKSAR, under article 153 of the Basic Law, CPG shall decide whether to apply
international agreements to which the PRC is a party to the HKSAR, in accordance with
the circumstances and needs of the region, and after seeking the views of the HKSAR
government. Given that there is a serious housing shortage and an unwelcoming climate
to asylum seekers,46 CPG will not apply the Refugee Convention to Hong Kong in the

2 February 2016 Unified screening mechanism for non-refoulement claims, LC Paper No. CB(2)648/15-
16(06), at para. 2.
43
Umbamaka Edward Wilson v Secretary for Security and Director of Immigration (FACV 15 of 2011).
44
Lawrence Cox, "The Failure of the People's Republic of China to Extend the Refugee Convention to
Hong Kong: the contemporary use of the "Colonial clause" by a non-colonial power to circumvent human
rights obligations", 4 J. Migration & Refugee Issues 80 2008, at the abstract.

45
Ineta Ziemele (ed.), Reservations to Human Rights Treaties and the Vienna Convention Regime

(Martinus Nijhoff 2004), at page 143.

46
Chief Executive CY Leung even talked about withdrawing from the CAT; see "Hong Kong could quit
torture convention, says CY", South China Morning Post (14 January 2016), available at
http://www.scmp.com/news/hong-kong/politics/article/1901085/hong-kong-could-quit-torture-
convention-says-cy (accessed on 16 July 2017).
near future.

Implementing the USM

Pursuant to the Court of Final Appeal judgment in C, which requires the Director of
Immigration to screen claims independently, the government introduced a unified
screening mechanism ("USM") which commenced operating on 3 March 2014 to screen
claims made by illegal immigrants refusing to be removed to another country on all
applicable grounds (i.e. non-refoulement claims). Apart from the risk of torture as defined
under CAT, these applicable grounds include the risk of cruel, inhuman or degrading
treatment or punishment under HKBOR 3, and/or persecution drawing reference to
Article 33 of the Refugee Convention. The screening procedures of USM follow those
of the statutory screening mechanism for torture claims, which has been in place since
the enactment of the Immigration (Amendment) Ordinance 2012.

According to the government's position, USM process claims for non-refoulement

protection against expulsion, return or extradition from Hong Kong to another country on
applicable grounds including risks of (i) torture under Part VIIC of the Immigration
Ordinance; (ii) torture or cruel, inhuman or degrading treatment or punishment under
Article 3 of the Hong Kong Bill of Rights; and (iii) persecution with reference to the non-
refoulement principle under Article 33 of the Refugee Convention (although Hong Kong
has not acceded to it).47

Resettlement rather than integration

The past is sometimes a good predictor of the future. Policymakers in Hong Kong, have
always preferred settling refugees in a third country rather than letting them integrating
into Hong Kong. According to Peterson, when facing the UNHCR Hong Kong Survey
Mission in 1954 to study ways to resolve the mainland refugee crisis , the British “were
determined the survey should focus exclusively on the potential for resettlement abroad
and not on local integration”. 48 The then Hong Kong Governor Alexander Grantham

47
"Commencement of unified screening mechanism for claims for non-refoulement protection", available
at http://www.info.gov.hk/gia/general/201402/07/P201402070307.htm (accessed on 16 July 2017).
48
Glen Peterson, "To Be or Not to Be a Refugee: The International Politics of the Hong Kong Refugee
personally requested the terms of reference not to include inquiring into whether any part
of the solution might lie in improving refugees' economic condition in Hong Kong, 49
although eventually, most of them settled in Hong Kong. Similarly in the Vietnamese
refugee crisis, the Hong Kong government’s goal was to facilitate resettlement in another
country. Only those who could not resettle were allowed to integrate.

A similar line of thinking is in the USM procedure. Those who succeed are not granted
“refugee” status; in the eyes of the Immigration Department, they are still illegal
immigrants but deportation is suspended for the time being. 50 They are not allowed to
work (as shown in the Court of Final Appeal case of GA51), and has to wait for a long
time before being resettled. This focus on resettlement rather than allowing integration
will remain in future regardless of other changes in the USM.

Long waiting time reduced because of streamlined procedures?

There is a large backlog of cases and waiting time is long. Potential refugees are
sometimes put to a high standard of proof, and the percentage of successful cases is low.
In its latest briefing to the Panel on Security in LegCo, the government has pledged to
streamline the screening process and provide statutory backing under the Immigration
Ordinance for USM.52 This is actually mutually beneficial to the real refugees and the
Hong Kong community, as unmeritorious claims could be screened out early 53 and
alleviate perceived social problems.

Perceived crime problem

Crisis, 1949–55", The Journal of Imperial and Commonwealth History, Vol. 36, No. 2, June 2008, pp. 171–
195, at p. 176.
49
Ibid.
50
"Reply to LCQ 12: Non-refoulement claims", available at
http://www.info.gov.hk/gia/general/201606/15/P201606150411.htm (accessed on 16 July 2017).
51
GA & Ors v Director of Immigration, FACV 7-9/2013.
52
Legislative Council Panel on Security: Comprehensive review of the strategy of handling non-
refoulement claims, LC Paper No. CB(2)648/15-16(05), at para. 12.
53
Ibid.
On the political side, locals and the media view non-refoulement claimants to be a source
of worsening crimes; the Police has recorded 1, 113 cases of illegal immigrants arrested
for theft, wounding and serious assault, serious drugs offences, as well as other criminal
offences in 2015. 54 There is sentiment to send them to closed camps like treating the
Vietnamese boat people in the past. 55

Other regions should set up fast and efficient mechanisms so that they could legitimately
deport aliens back to their home country and identify who are at real risk of persecution,
so that fewer asylum seekers could be in Hong Kong who are mostly single and jobless
to create a crime problem. Naturally, this will be a delicate balance because governments
do not certainly do not want to attract more potential refugees to game the screening
system.

Reducing number of USM applicants at source

Pre-arrival control by requiring people from the refugee originating countries to complete
registration before coming to Hong Kong will reduce the number of potential asylum
seekers who come to Hong Kong, and is now applicable to Indian nationals. 56 Given that
most asylum seekers that come to Hong Kong are from South or Southeast Asian
countries, such pre-arrival control to vistors from those control could curb the influx of
asylum seekers. It is a measure easy to implement by other Asian countries who face a
similar problem.

In handling the Vietnamese boat problem, after 1988 the Hong Kong government

54
Panel on Security, "Comprehensive review of the strategy of handling non-refoulement claimants",
CB(2)648/15-16(05), 2 February 2016, at paras. 3(e).
55
Letter dated 29 March 2016 from Dr Hon Priscilla LEUNG suggesting the Panel to discuss issues relating
to the establishment of detention centres for non-refoulement claimants and the cessation of application of
the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to Hong
Kong (Chinese version only), 12 April 2016, LC Paper No. CB(2) 1215/15-16(01).
56
"Pre-arrival Registration for Indian Nationals", available at
http://www.immd.gov.hk/eng/services/visas/pre-arrival_registration_for_indian_nationals.html (accessed
on 16 July 2017)
regularly made announcements through radio broadcast saying that there is a screening
process for refugees, and non-refugees will be turned away. 57 If potential asylum seekers
are aware that how they may be deported, and the message is loud and clear, then it would
reduce asylum seekers at source.

Cap on legal assistance?

Some LegCo members opined that a cap on legal assistance should be introduced, which
would reduce the likelihood of legal aid being used to prolong stay in Hong Kong.58 The
government said that it needed to study overseas experience of such policy in 2016 before
drawing up concrete proposals.59

Creative litigation: Lessons for other actors in the region

The Refugee Convention does not apply to Hong Kong. As Tang PJ explained in C60 at
paragraph 5, HKSAR has a firm policy not to grant asylum to refugees and challenging
that policy is not feasible. However as Loper has demonstrated, The Refugee
Convention is not the only possible legal protection for refugees. 61

In Hong Kong, there is no lack of court cases on asylum seekers. In 2004, in the case of
Prabakar v Secretary for Security 62, the CFA upheld a lower court's decision in favour of
a Sri Lankan asylum seeker, who had sought judicial review of the government's failure

57
What does "Bat Lau Dung Laai" mean in Hong Kong? South China Morning Post, 23 September 2016,
available at http://www.scmp.com/magazines/hk-magazine/article/2038282/what-does-bat-lau-dung-laai-
mean-hong-kong (accessed on 14 July 2017).
58
Panel on Security, "Background brief prepared by the Legislative Council Secretariat for the meeting
on 2 February 2016:Unified screening mechanism for non-refoulement claims", LC Paper No.
CB(2)648/15-16(06), at para 23.
59
Ibid.
60
C and others v Director of Immigration and Secretary for Security, FACV No. 18, 19 and 20 of 2011.
61
Kelly Loper, "Prospects for Refugee Rights in Hong Kong: Towards the Legalization and Expansion of
Protection from Refoulelment", in Angus Francis and Rowena Maguire (eds.), Protection of Refugees and
Displaced Persons in the Asia Pacific Region (Routledge 2013).
62
FACV No. 16 of 2003.
to carefully assess his non-refoulement claim. The court relied on the government's
assertion in its report to the UN Committee against Torture that the government would
carefully assess claims and take into account all relevant considerations, including the
human rights situation in the claimant's home country. The court concluded that
regardless of whether Hong Kong had a domestic legal duty to prevent refoulement, "high
standards of fairness must be demanded"63 in the determination of the potential deportee's
torture claim. This principle has since underpinned torture claim determinations in Hong
Kong.

In Umbamaka, the CFA said that on the right to freedom from torture or cruel, inhuman
or degrading treatment in article 3 of the Hong Kong Bill of Rights Ordinance (which
implements the ICCPR in Hong Kong) is not subject to the immigration exception in
s.11.64 It prevents the deportation of a refugee back to his home states if he indeed faces
such a risk. Though the Refugee Convention does not apply to Hong Kong, it has not
prevented human rights instruments and the common law to fill the gap.

For other countries subject to other human rights instruments, the implication is that the
right to freedom from torture may be used to prevent deportation of asylum seekers to
their home country to face harm. NGOs and litigants in other Asian countries may use
such a right to argue for more protection for asylum seekers (e.g. the right to work in GA).
Moreover, since the principle of non-refoulement is entrenched in customary international
law (regardless of whether it has attained jus cogen status),65 and implied in article 7 of
ICCPR, a future Asian court could apply this rule of customary international law in a
refugee case. Governments of Asian countries that have not acceded to the Refugee
Convention should be aware of this possibility. The Hong Kong experience may
therefore have comparative experience for actors in other Asian countries who have not
acceded to the Refugee Convention, but similarly bound by an "assemblage of legal
obligations owed by states to refugees"66like Hong Kong.

63
Ibid at para 44.
64
Umbamaka Edward Wilson v Secretary for Security and Director of Immigration (FACV 15 of 2011).
65
Cathryn Costello and Michelle Foster, "Non-refoulement as Custom and Jus Cogens? Putting the
Prohibition to the Test", in M. den Heijer and H. van der Wilt (eds.), Netherlands Yearbook of International
Law 2015.
66
M Jones, "Moving beyond protection space: Developing a law of asylum in South East Asia" in S
Conclusion

The screening mechanism in Hong Kong has long been under criticism, though the
government has been slowly implementing necessary reforms to address the defects,
especially when prompted by court cases. While screening time will gradually be
reduced, there are no signs that asylum seekers will have a better chance of a successful
claim, as the government certainly would not want to encourage more asylum seekers to
come.

Moreover, despite the lack of an overt refugee law in Hong Kong, there are other legal
principles already in place that could afford protection to asylum seekers. Other activists
in Asian countries might draw the Hong Kong experience in this respect.

Kneebone, D Stevens and L Baldassar (eds), Refugee Protection and the Role of Law: Conflicting Identities
(Routledge London 2014).