On 23 July 2015, Vision First was contacted by a member who alleges that Immigration deported him to Nepal with questionable tactics, prior to the commencement or completion of USM screening.
The conversation below, edited for clarity, raises a host of troubling questions:
- Why was the refugee jailed for illegal entry after 2 years on bail?
- Why does the refugee complain that Immigration officers “forced me” to sign documents?
- Why was the refugee threatened with imprisonment if he didn’t sign?
- Why didn’t Immigration translate and provide copies of such documents?
- Why wasn’t the USM screening completed, if commenced at all?
- If a USM Notice of Decision was issued, why wasn’t a copy given to the refugee?
- Why didn’t an interpreter translate the Notice to the refugee?
- Why was the refugee denied the right to appeal?
- How did the assigned duty lawyer defend the refugee?
- Did the duty lawyer ensure a high standard of fairness?
Freedom and justice were almost denied Mr. Q, a South Asian refugee who sought the protection of Hong Kong Government on 23 December 2014, only to be detained and subjected to robust rejection and removal action until his release from Castle Peak Bay Immigration Centre (CIC) on 3 June 2015.
What suffering does a persecuted refugee endure in 162 days and nights of Immigration detention? For good reasons unlawful detention is compensated by Hong Kong law with HK$1,000 per day, as the rule of law takes the depravation of anyone’s liberty most seriously. Facts lead us to believe that this might not always be the case behind the secretive walls of Immigration detention.
The legal team of Barrister Robert Tibbo and solicitor Chris Lucas finally secured Mr. Q’s release after filing a leave application for Judicial Review at the High Court. Upon the application being filed, the Director of Immigration, K.K. Chan made the decision not to deport the refugee and a few days later exercised his discretion to release him from CIC. The process however was less than smooth.
The Director of Immigration had previously attempted to deport Mr. Q from Hong Kong, the last attempt being made on 1 June 2015. On that day, the legal team acted with great determination and urgency to file the leave application for Judicial Review in the High Court before the 4pm deadline, thus stopping the Director from deporting their client.
It should be noted that on 1 June 2015, the Director of Immigration, K.K. Chan was fully aware that the legal team had already applied for Legal Aid, was about to file a Judicial Review and had applied for and successfully obtained an Anonymity Order from a High Court judge. Despite all of the above, the Director took every possible step to attempt to deport the refugee prior to the 4pm deadline.
Mr. Q’s account of his treatment by Immigration officers inside CIC and at the airport is disturbing.
The refugee reports, “Immigration officers pressured me to leave. Some day after I met [Barrister Robert Tibbo and solicitor Chris Lucas] they took me to the airport. An officer threatened, ‘If you refuse to go back we will tie you to a chair, put a helmet on your head and drag you to the airplane.’ They pushed me around. They shouted, ‘Don’t give us trouble! Don’t make any noise, or something will happen to you. If you make trouble we can do anything to you!’”
Mr. Q was shaken by one experience in particular, “One day around 3:45pm, Immigration officers brought me down from 7th floor to the ground floor at CIC. They took me inside a female changing room. They threatened and scared me. They yelled, ‘Don’t make any trouble! Just go back to your country quietly. Just do what we tell you to do! Don’t ask any questions! Don’t argue with us!’”
He recalls, “There were four officers and they all shouted very loudly at me. They shouted, ‘If necessary we will use all our power to send you back!’ Even when my pants were slipping down from my waist, they didn’t care. They didn’t even let me pull them up. They kept pushing me from behind, telling me to walk faster. They brought me to the female changing room because there are no video cameras there.”
Vision First has no reason to believe that Mr. Q is lying, although readers may judge for themselves. Lastly, alert readers might wonder how such harrowing treatment by Immigration officers meets the high standard of fairness demanded by Hong Kong law in the processing and determination of asylum claims.
Vision First fearlessly reports on incidents that place under the spotlight practices adopted by various Government bodies which include the Director of Immigration, Security Bureau, Social Welfare Department and Hospital Authority.
Examples are asylum policies resulting in an effective zero percent acceptance rate, welfare failures, institutional discrimination and abuses of power by those in authority. It is unfortunate that enormous and entrenched distrust continues to widen between refugees and Government authorities, with officials often failing in their duties prescribed by law.
Government propaganda and uninformed media reports often depict refugees as abusers of the asylum process accusing them of exploiting the system for personal gain. Such generalisation is simply untrue for asylum seekers who fled torture, ill-treatment, death threats and persecution to seek protection from Hong Kong’s Government.
It is increasingly clear that the secretive walls of the Director of Immigration’s Castle Peak Bay Immigration Centre (CIC) conceal apparent unlawful conduct. On 6 May 2015, Vision First arranged a visit to CIC to provide free legal advice to refugees in relation to asylum claims, the legality of such procedures, conditions and legality of detention and to secure their release from arbitrary deprivation of their liberty
The pro bono legal team comprising Barristers Mark Sutherland and Robert Tibbo, together with their instructing solicitors and interpreters, paid a visit to CIC. This is what transpired. One refugee from Africa had reportedly been detained in CIC for over three and a half months whilst the assessment of his “first tier” non-refoulement claims was underway with all the interviews so far being conducted within CIC. His next interview was due to take place the following day, 7 May 2015.
Another refugee from Africa had been reportedly detained for over a month and only that morning had been handed a set of blank Supplementary Claim Forms by The Duty Lawyer Service (DLS). This was presumably prompted by the prior lodgement of a non-refoulement claim. The assessment of this refugee’s claim had not even started and a lawyer not yet assigned to him by DLS.
A further refugee from South Asia reported that he had attempted to argue his own Appeal without a lawyer and had experienced a detention period of seven months.
Troubled by his findings of lengthy periods of detention, Barrister Mark Sutherland asked to see the supervising Immigration officer. During the course of an hour, three Immigration officers of differing levels of seniority appeared but could not shed any light on the seemingly unlawful detention of the refugees.
Finally, the Superintendent of CIC, a Mr. W.S. Kwong, the highest ranking Immigration officer responsible for CIC attended and agreed to a meeting with the pro bono legal team during which serious concerns were expressed as to the legality of the detention of the refugees. Sutherland asked Mr. Kwong: “Are you aware of the Ghulam Rbani case?” Mr. Kwong replied words to the following effect: “I have never heard of it. It’s not my department.”
Superintendent Kwong was unaware of this landmark and legally binding decision of the Court of Final Appeal case “Ghulam Rbani vs. Secretary for Justice” (FACV 15/2013), wherein it states:-
“Once it became clear that the CAT claim had to run its course, it would have been obvious that no decision to make a removal order could have been arrived at within the maximum period of detention permitted under section 32. Applying the 3rd Hardial Singh principle, steps should then have been taken without delay to effect the appellant’s release.”
Put simply, if an asylum seeker has filed a claim for non-refoulement protection, he cannot lawfully be detained and must be released forthwith.
Vision First is of the view that the Director of Immigration, Mr. K.K. Chan, should call for an immediate review of the detention status of each and every inmate currently held at CIC. Sutherland invited Superintendent Kwong to see that such a review was undertaken as a matter of priority. The result is awaited.
Based on this legal visit, Vision First is satisfied that there is sufficient evidence to merit an independent investigation of the apparent disregard by the Hong Kong Government of the principles enunciated by the Court of Final Appeal in Ghulam Rbani. We shall leave it to our readers to draw their own conclusions.
May 6th of 2015 is likely to be a day many refugees detained by the Director of Immigration at the Castle Peak Bay Immigration Centre (CIC) will not easily forget. The Refugee Union had taken instructions from over 30 detainees to arrange a legal visit by a pro bono legal team to advise them on their asylum claims, the legality of the asylum claim procedures, conditions and legality of detention and to secure their release. Since a group visit by a pro bono legal team had not occurred for some time, the refugees were hopeful whilst not knowing what to expect.
The legal team comprised Barristers Mr. Mark Sutherland and Mr. Robert Tibbo, both non-executive directors of Vision First, who scheduled valuable time to provide free legal advice to the detainees, some of whom have indeed been unlawfully detained. Counsel were instructed by solicitors Mr. Tam Kam Tong and Mr. Chris Lucas respectively, who were supported by interpreters – everyone acting on a pro bono basis.
The Director of Immigration had been notified of the legal visit to a number of refugees for the purposes of assessing “current detention at CIC and to advise on possible claims under Article 2 of the Bill of Rights Ordinance.” The legal visit was also to focus on the procedure for judicial review. Led by Superintendent W.S. Kwong, Immigration officers and staff were helpful throughout the particularly busy day.
Sutherland remarked, “There are several refugees who have been locked up since they arrived despite having lodged claims for asylum. In some cases, their interviews haven’t even started. This is clearly a prima facie case of unlawful detention and immediate release has been requested.” Tibbo added, “One youth from South Asian was so traumatized by his treatment by the Director of Immigration at CIC that he gave up and withdraw his non-refoulement protection claim. They are being warehoused in a similar way to Australian off-shore detention camps.”
A sense of encouragement grew among refugees from morning till afternoon. The initial uncertainty about the magnitude of events lifted as the first clients returned to the common rooms to share their experiences. Tibbo observed, “It was like a fire was spreading inside CIC. The refugees knew their lawyers were there and they might be released soon. Clients were coming in to the meeting rooms and everyone was fired up and happy – there was a resurgence of hope that could been seen in their eyes and faces.”
After lunch, while inside CIC, Sutherland came across quite per chance two visitors who turned out to be the Justices of the Peace (JPs) assigned to inspect CIC. JPs are the only independent professionals granted unrestricted access to the centre, where they may speak to detainees without appointment and request copies of detention files. The two gentlemen were clearly alarmed by the grave concerns expressed by Counsel which had arisen out of the legal visit. The JPs kindly held two meetings with the legal team on the same day. They requested a full report of the findings. Interestingly, Vision First was in the process of preparing to make contact with the JP’s Office to seek assistance in relation to detention concerns. Sutherland has since conveyed the matter in writing to the JPs in question.
By 5 p.m., the legal team requested the Director of Immigration to immediately release 6 (six) refugees who have been arbitrarily and unlawfully detained by the Director of Immigration. Their release is expected imminently. It is noteworthy that several refugees on the original list had already been released from detention prior to the legal visit.
It is believed that the legal team’s effort will have an impact on the way certain matters are carried out behind the secretive walls of Immigration detention. It now appears clear that refugees are being unlawfully detained in CIC whist they have outstanding non-refoulement claims.
In reality more than occasional pro bono efforts are needed to ensure high standards of fairness in Immigration detention and to hold the Director of Immigration, Mr. K.K. Chan to account. There should be a panel of lawyers assigned either by The Director of Legal Aid and/or The Duty Lawyer Service to meet this crucial need. These lawyers should be on hand at CIC to offer on the spot legal advice to detainees, regarding their detention and with the authority to launch habeas corpus proceedings, if necessary.
The present lacuna in the provision of free legal advice regarding detention plays into the hands of the Director of Immigration and militates towards longer periods of unchecked, unlawful detention.
It was hard to answer the question of a visitor to Vision First who sought to understand the caustic environment navigated by refugees with a slim chance of securing protection in an indifferent city. Ironically, Hong Kong has long had a history of welcoming refugees (1.5 million between the 1930s and 1970s), but its sympathy and support of persecuted foreigners dwindled regrettably as residents became richer.
The government mantra is well rehearsed, “Non-refoulement claims lodged under the USM are not asylum claims. The Refugee Convention and its 1967 Protocol have never applied to Hong Kong. The Government maintains a firm policy of not granting asylum to or determining the refugee status of anyone. Our policy objective is to screen … and to remove rejected claimants from Hong Kong as soon as possible. Lodging a claim does not change the fact that non-refoulement claimants are illegal immigrants or overstayers.”
The results of such a policy appear skewed towards removal. Between 2009 and 2014, Immigration screened 5581 claims and substantiated just 25. It is noteworthy that in 6 years Immigration failed to grant protection to a single asylum seeker among 2166 Pakistani, 1760 Indians and 1237 Bangladeshi. Hong Kong has never protected a claimant from these countries. By contrast, in 2013 Australian protection grants produced very different results: Pakistani 80.4%, Indians 6.3% and Bangladeshi 42.7% at first instance (p. 20). Astonishing it is that Pakistani scored 94.9% including appeals (p. 30). How does it compare to Hong Kong’s achievements?
Despite profuse assurances to the contrary, it appears that Hong Kong Government has abdicated its obligation to protect refugees and has instead prioritized rejection and removal. An elaborate performance by 480 lawyers ‘who have received specialised training’ has done little to improve the effective zero percent acceptance rate. To the contrary, the authorities are focused on cost-cutting to reduce the $644 million spent on claimants, including legal aid up 86% last year.
Stringent immigration control and deterrent welfare were ingeniously deployed to deter asylum seekers from remaining in Hong Kong, but their number doubled in 2014 to 9618, reflecting worrying global trends. Immigration is presumably feeling the pressure and this year plans to determine 2000 claims, which might fail to reduce the total ‘with new claims coming in at more than 300 per month since early 2014.’
In an obfuscated environment of rejection and expediency, is it possible that some refugees might be removed or deported to their country of origin at a risk of life and limb? It is hard to make factual assessments, as the Castle Peak Bay Immigration Centre (CIC) remains off-limits to rights advocates and detainees may only be visited by appointed lawyers. Refugees denied release on recognizance are unlikely to enjoy adequate legal advice, or second opinions on their claims.
In this potential black hole, can Immigration be trusted to adhere scrupulously to high standards of fairness, respect fundamental refugee rights and assess claims in a non-adversarial manner as required by law? Acting on a pro bono basis, barristers Robert Tibbo and Mark Sutherland, non-executive directors of Vision First, visited CIC on 6 May 2015 to take instructions from 24 detainees who sought the assistance of the Refugee Union against imminent removal orders. It was reported that 5 had already ‘left from Hong Kong International airport’ with no further details.