The Convention Against Torture has been extended to Hong Kong since 1992. Article 3(1) of that 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”.
Bound by this convention by choice – it should be noted - Hong Kong offers non-refoulement protection to claimants who subsequently enjoy an absolute right not to be removed pending the outcome of their claims. This protection is unequivocally coupled with social welfare rights, as claimants are not allowed to take up employment as they await decisions.
Under the enhanced torture screening system launched in December 2009, the Immigration Department has recognized 10 victims of torture – including four children, two born in Hong Kong (who would have been citizens in other jurisdictions). One successful claim in the previous system takes the total to 11 screened-in claimants out of 13000 in 21 years.
Hong Kong’s acceptance rate is .1% over two decades
compared to 20-40% yearly in developed countries.
The results are exceedingly eloquent. This risible percentage attests to a covert and unconstitutional Culture of Rejection that complies with the letter of the Immigration Ordinance (establishing an asylum process), while flouting the spirit of the Torture Convention (granting actual protection). The dislocation between administration and jurisprudence is complete and plain for all to see. How long will this duplicity last?
Until demonstrable changes are introduced and protection rates rise to, say, 5%, nobody will be under the illusion that goals other than protection motivated the ratification of this treaty. In the wake of such blatant, persistent hypocrisy, wouldn’t it be more honorable to rescind the Torture Convention? Why not withdraw gracefully, grant citizenship to existing claimants and slam the door shut? What is dysfunctional should be challenged and changed.
Regression is rarely desirable, but if the alternative is inflicting pointless suffering on thousands of refugees, then here is a bridge worth burning. Since UNHCR assessments were already legally halted, why not close down Immigration’s Torture Claim Assessment Branch? From a human rights prospective it would be praiseworthy.
In such an epochal shift, a few hundred Immigration officers would be reassigned to meaningful tasks; three-hundred-plus DLS lawyers would lose their bread-and-butter business; some NGOs would have to restrategize; and, crucially, Hong Kong’s acceptance rate would finally hit the dream target of zero-percent!
By contrast, asylum seekers would appreciate the frankness; thousands would get on with their lives; hundreds would seek refuge where the process is taken seriously. Meaninglessly interrupted lives would recommence; distraught families would plan reunions and their children would have a chance in life. At last, the shame asylum policies cast on our city would mercifully end.