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system for the protection of refugees and circumvent the object and purpose of international instruments for the protection of refugees, including the 1951 Convention and 1967 Protocol relating to the Status of Refugees.
Amnesty International therefore urges that Reservations Clause 11 either be deleted or amended in such a way as to ensure its compatibility with the internationally-recognized rights of asylum-seekers and the obligations of the government towards those seeking protection against human rights violations.
Article 9 places restrictions on expulsion from Hong Kong and provides that persons not having the right of abode in Hong Kong but lawfully present there shall, except where compelling reasons of national security require, have the decision to expel them reviewed. Clause 12 of the Reservations section excludes this right of review in cases where a decision is made to deport such persons.
In this connection, Amnesty International draws attention to the internationally-recognized principle that refugees may by force of circumstance have no choice but to enter a country without authorization, and therefore states should not penalize them for doing so. This is noted in Article 31.1 of the 1951 Convention as follows:
"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 or
freedom was threatened ..., 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."
Amnesty International is concerned that, as drafted, Article 9 and Reservations Clauses 11 and 12 would result in penalizing asylum-seekers for entering the country without official authorization, and that this would be contrary to international standards. Amnesty International is further concerned that Article 9 and Reservations Clause 12 provide inadequate safeguards against the expulsion or deportation of asylum- seekers, including those present in Hong Kong without official authorization. The right to appeal against a decision of expulsion or deportation is an essential safeguard for the protection of asylum-seekers, and a decision to expel or deport an asylum-seeker should be dependent on the outcome of his or her request for recognition as a refugee, including an appeal against any negative decision at the first instance. This is recognized in international standards, for example Conclusion No. 8 (XXVIII), adopted by consensus by the Executive Committee of the United Nations High Commissioner for Refugees, which states that:
(i) "The competent official (e.g. immigration officer or border
police officer) to whom the applicant addresses himself at the border or in the territory of a Contracting State should have clear instructions for dealing with cases which might come within the purview of the relevant international instruments. He should be required to act in accordance with the principle of non-refoulement and to refer such cases to a higher
authority",
and that asylum-seekers should not be expelled pending a final decision on their claim for refugee status:
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