On 19 February 2013, legislator Dennis Kwok wrote to the Security Bureau for clarifications on the administration’s position after the Court of Final Appeal judgment “Ubamaka“.
He wrote, “(This judgment) held that the right guaranteed under Article 3 of the Hong Kong Bill of Rights, i.e. the right to freedom from torture or cruel, inhuman or degrading treatment or punishment, is non-derogable and absolute even for those persons having no right to enter and remain in Hong Kong. As a result, torture claimants facing refoulment can now rely not only on the Convention Against Torture, but also on the Hong Kong Bill of Rights Ordinance as long as he can establish “two main requirements: (i) that the ill-treatment which he would face if expelled attains what has been called ‘a minimum level of severity’ and (ii) that he faces a genuine and substantial risk of being subjected to such mistreatment.” Then Dennis asked:
a) Whether the Administration will take immediate steps to cease, at least temporarily, repatriating persons who have previously made, or who have expressed an intention to make, a torture claim;
b) Whether the Administration will consider further amending the Immigration Ordinance to ensure that the current statutory process for making and determining claims is in full compliance with the judgment in Ubamaka;
c) If not by amending the Immigration Ordinance, whether the Administration will issue new guidelines for determining torture claims;
d) How can the Administration ensure that the current statutory process for making and determining claims is in full compliance with the judgment in Ubamaka?
The Secretary for Security replied, “the Administration must very carefully and thoroughly consider the judgment and its implications in detail and seek legal advice from the Department of Justice before deciding on the most appropriate way forward. Rest assured that the Administration is actively exploring various possible options to ensure that the Immigration Department will continue to discharge its duties effectively, efficiently and in accordance with the law”.
In other words, the government is still unsure how to process CIDTP claims. For the time being, let’s hope that front-line Immigration officers in Skyline Tower have been properly instructed on receiving and filing CIDTP claims - without infringing upon claimants’ rights - as Vision First has witnessed and taken action against lately. It shouldn’t be necessary to threaten High Court action for such simple procedures three months after the Ubamaka judgment. Any abuses should be reported immediately for corrective action.
You may read Dennis Kwok’s letter here
You may read the reply he received on 26 March 2013 from the Security Bureau here
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Simpson Cheung writes for South China Morning Post on 26 March 2013
Top court decides government can no longer rely solely on UN agency to vet asylum seekers and that its decisions can be challenged in court
Although the judgment did not mention how the government should be vetting the cases, Ho and other advocates expected the role of the UN agency to fade. “Understanding UNHCR’s constraints in its finance and manpower, it is quite unlikely that it would duplicate the job if the government was doing it already,” Ho said. Non-permanent judge Mr Justice Anthony Mason said in the court ruling that it was not right for the immigration director to simply rely on the UNHCR. “There are very strong reasons for concluding that the director has either failed to apply his mind independently to the correctness of the determinations made by the UNHCR, or he has done so in a way that falls short of the anxious scrutiny and high standards of fairness,” he said. Cosmo Beatson, executive director of Vision First, which advocates refugees’ rights, said agency decisions were immune from legal challenges and the success rate for claims was low. He hoped the estimated 1,000 asylum seekers it had rejected but who were still fighting to stay in Hong Kong would submit their cases again. “This brings justice and hope to those seeking asylum in Hong Kong who, until today, have had to rely exclusively on the arbitrary decisions of UNHCR,” he said.
This brings justice and hope to those seeking asylum in Hong Kong who, until today, have had to rely exclusively on the arbitrary decisions of UNHCR Cosmo Beatson, executive director of Vision First. He called on the government to combine vetting procedures for torture and refugee claimants. He said this would speed up the process and prevent economic migrants from buying time in the city by first applying for one status and, when that failed, then applying for the other. Mr Justice Kemal Bokhary said in the judgment a combined system would be “one of the choices open to the executive”. Annie Lin, of equal-rights campaign group the Society for Community Organisation, also welcomed the ruling. She added that she hoped the UNHCR would continue to help resettle recognised refugees. Last night, Bawah, an African whose refugee claim had been rejected, said he would definitely now apply to the government. “I need justice. I want my case to be assessed with humanity.” Spokesmen for both the Security Bureau and the Immigration Department said the government would be studying the judgment and seeking legal advice on the way forward. A UNHCR spokesman welcomed the court ruling, but would not say if it would keep taking cases or pass its current caseload – about 900 claims – to the government. About 100 refugees are awaiting resettlement.
“”Hey, remember to switch the lights off when you leave”
We are very pleased with today’s Court of Final Appeal judgment that requires the Immigration Department screen refugees directly, and stop delegating this fundamental task to UNHCR. Justice Tang states, “The Director (of Immigration) must consider the circumstances of the individual concerned. Since, whether a person is a refugee is a relevant consideration, it follows that if a person claims refugee status … the Director must determine whether the claim is well-founded. Otherwise the power would have been exercised in ignorance of a relevant consideration. That plainly is not permissible … It is essential that the determination must be made by the Director and his duly authorized officers and that the determination must satisfy the high standards of fairness required.” In other words, Immigration is no longer permitted to sheepishly rely on UNHCR’s decisions, trusting that these are flawless and made in the best interest of justice.
This brings hope to asylum seekers in Hong Kong who, until today, have had to rely exclusively on the arbitrary decisions of UNHCR, praying they would be included in the agency’s minuscule 1% recognition rate. Justice Tang continued, “It is not a sufficient answer to say that the Director has deferred to or relied on UNHCR’s RSD (Refugee Status Determination). Since a decision of such moment attracts the high standards of fairness identified in Prabakar, the Director’s decision must meet such high standards of fairness.” This makes it clear that the courts no longer accept Immigration’s practice of depending on the refugee agency to identify refugees.
Today the refugee community celebrates a trifecta: first there was the Ubamaka judgment … then a torture claim victory last week (the second in 20 years!) … today this incontestable triumph! We believed the tide would eventually turn, but after the darkness of the past years, we didn’t expect such a stunning reversal so soon. And we haven’t taken our protest to the streets yet, as scheduled for 27 April – to be marked the “real refugee day”! Rejoice! Today justice has prevailed and the tenacious advocacy of those concerned with the refugee cause is starting to bear fruits. This is not only a victory for refugees, but it is a triumph for Justice brought finally into the darkest corners of the Immigration Department, courtesy of Court of Final Appeal.
This stunning judgment demonstrates that the rule of law remains powerful and both the Immigration Department and UNHCR will have to adjust to the consequences and effects of this unquestionable reality. There are UNHCR claimants languishing in detention. There are refused asylum seekers whom the Immigration Department said it was legally open to return to their country. But hold on a moment … Judge Bokhary said, “No it is not!” In the near future we expect that torture claim screening will come to a screeching halt and that failed claimants will be released from detention pending fresh assessment under a renewed comprehensive system. Torture screenings in process might continue, but new ones will not start, as negative decisions would be easily challenged in court. The circumstances recall the expression, “haste makes waste”.
The Court of Final Appeal is of the view that not only must Immigration determine refugee claims, but it must satisfy the high standards of fairness required by the gravity of situations, where the life of asylum seekers is at stake. The warning is clear: if the courts were to decide that such high standards were not met, the determination would be considered made unlawfully. Justice Mason warns that, “There are very strong reasons for concluding that the Director has either failed to apply his mind independently to the correctness of the determinations made by the UNHCR or, if he has done so, he has done so in a way that falls short of the anxious scrutiny and high standards of fairness required by Prabakar.”
With regards to Immigration’s policy of removing failed asylum seekers, he added, “The requirement of fairness … calls for the Director to make an independent assessment of the UNHCR determination, especially in those cases where the UNHCR determination is adverse to the claimant.” He couldn’t be more emphatic. These words put nails in the coffin of UNHCR’s refugee status determination, upon which Immigration can no longer depend. In short, RSD becomes RIP! Further, this judgment calls unequivocally on the government to screen torture and persecution fears together where both are claimed. Although the court did not spell out how Immigration should arrange torture and refugee screening, this is evidently a monumental task that will require months of research, analysis and debate. We believe the government knows where to get good advice and, we have learnt, many Immigration officers already trained extensively at UNHCR, according to a Memorandum of Understanding made between the government and UNHCR dated 20 January 2009. How enlightening it would be to read this document!
Today the Court of Final Appeal has forced the government to completely rethink Hong Kong’s wasteful and ineffective “two-track asylum system” (where UNHCR assesses refuges and Immigration screens torture claimants). In particular, the government will have to review the entire torture claim screening system: the Torture Claim Assessment Section (TCAS), the Appeal Board and Duty Lawyer Service’s role. The functions and powers of these three bodies need to be redefined; some will not survive the cut. Clearly this was expected as several rejected torture claimants, who applied for Judicial Reviews, were told to wait until after this seminal decision. More importantly, the role and function of UNHCR in Hong Kong has been shaken to its foundations. The refugee agency, as we have known it here for decades, will soon be unrecognizable. Today’s judgment determined categorically that Immigration must arrange RSD and, by doing so, satisfy the high standards of fairness required by law. Somebody please remind UNHCR to switch off the lights when they leave!
It is foreseeable that UNHCR will be reduced to a supervisory body, informing the government on RSD, which is the advisory role it plays in other developed countries. We expect UNHCR will stop RSD in Hong Kong within six months, as their decisions in general, and their rejections in particularly, bear little consequence on Immigration’s action. This is something UNHCR expected earlier this year, when they suspended financial aid to Hong Kong refugees, despite raising in the city over 30,000,000 HK$ in 2012. We are particularly pleased about a stop to the agency’s RSD, having lobbied tirelessly against UNHCR failures and inefficiencies in the territory.
It must be noted that Hong Kong’s two-track system delegated to UNHCR the task of identifying refugees. However, the refugee agency has diplomatic immunity and, as such its decisions are not amenable to judicial reviews. This would be fine if the United Nations were faultless but in reality all institutions, and especially the most powerful ones, require checks and balances. The fact that UNHCR is above judicial scrutiny cast doubts on its procedural fairness, as their flawed decisions cannot be legally challenged – not even when life and limb are in jeopardy. Put simply, UNHCR does not meet the high standards of fairness demanded by law, and these three judges today were unanimous in emphatically declaring that Immigration Department can no longer rely on the agency’s screening of refugees.
Vision First has strongly advocated for an informed, efficient and effective asylum policy that would integrate in one comprehensive solution the objectives of the Refugee Convention and Torture Convention. Today’s judgment explicitly instructs the government to adopt procedures which satisfy the high standards of fairness required by law in both refugee and torture claim screening. We have no doubt that, following Ubamaka and today’s judgment, the government is obliged to abolish the “two-track system” in favour of a single, unified and efficient process covering torture, CIDTP and refugee claims. Today the entire refugee community has good cause to celebrate!
In conclusion, Vision First urges the government to take immediate and concrete steps towards establishing a comprehensive, transparent, integrated mechanism to determine claims for non-refoulement protection relating to Torture, CIDTP and Refugees, with high standards of fairness and reasonable access to judicial redress.
The Court of Final Appeal judgment is available here
Please click here to read the Newsletter
Dear Members, thank you for your support to the Health In Action (HIA). This project of Community Participation Program for Refugees is a pilot project to improve the psychological well-being of HK-based refugees by involving them in community services. According to the skills and talents of refugee members, we connect them to local HK communities particularly the disadvantaged groups of people through community services. This Activity Spotlight issue keeps our supporters informed about the latest activities under this project.
- Supporting Outreach Charity Sales Counter for the needy
- HIA awarded as “Outstanding Volunteer Team” for Charity Sales event with support of refugees
- Refugee musicians shared their traditional music culture to the Special groups of local community
- Members gathered to brainstorm what we can do more
- Clinical Psychologist and Health Education Specialist joined efforts to help psychological health assessment
- Legal Advisor helped provide professional legal advice and develop important documents for the project
- Coming in March: Refugee members will help development of the disadvantaged children through tutoring and music training
For new members: if you want to join this program, please email Eva Lam firstname.lastname@example.org
Joyce Man writes for South China Morning Post on 23 March 2013
Sri Lankan no longer faces deportation;
rights advocates say ruling offers others hope
The city has accepted its first torture claim since enhancing its screening system four years ago, a move that advocates of asylum seekers view as good news, yet far from sufficient. The Sri Lankan man’s claim is only the second to have been approved in Hong Kong out of more than 12,000 applications the government has received since 1992, when the city began applying the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The first claim was approved in 2008. The man, whose name cannot be disclosed for confidentiality reasons, received his approval from the Immigration Department on Thursday, his lawyer Peter Barnes told the South China Morning Post yesterday. This means the government will keep the man from being returned to Sri Lanka, where he faces risk of torture. “[The man is] very happy and relieved. He’s been waiting for this for a long time, and it requires a great degree of persistence and faith,” said Barnes. “Obviously, it’s good news for him, but it’s also good news for the system, which has finally recognised that there’s a person who’s in need of protection,” said the lawyer, a specialist in human rights law at Barnes & Daly. “I hope that now they’ve recognised one, they’ll be prepared to recognise others who are equally deserving of protection.” The Sri Lankan is also the first torture claimant in Hong Kong to win approval at the first try. The 2008 case was approved only after an appeal ruling in court.
The man’s approval covers his entire family, said Cosmo Beatson – executive director of Vision First, an organisation that supports asylum seekers in Hong Kong – who had spoken to the Sri Lankan. Despite being “thrilled” that the Immigration Department had accepted the claimant, Beatson said one was not enough. Hong Kong’s current acceptance rate was just 0.03 per cent, far away from those of developed countries, he said. “[The screening system is] still a work in progress,” said Barnes. “[Lawyers here who deal with these issues believe that] there are many more people who are deserving of protection but who are being denied.” “I think [the Sri Lankan's approval] will give a little bit of hope that it’s a viable system,” said Tony Read, chairman of the Refugee Concern Network, who explained that there had been a growing concern about the system’s effectiveness. “But there’s still a long way to go, because when you look at the statistics, it’s not very encouraging at all.” Hong Kong introduced a mechanism in 2004 to screen torture claims. The system was enhanced in 2009. The Immigration Department could not be reached for comment yesterday as an enquiry was placed after working hours.
The CAT winner at the March for Protection in October 2013
Today we have breaking news. We are delighted to announce that a Srilankan family’s torture claim was accepted by Immigration Department this afternoon. This event is a milestone in Hong Kong asylum history: they are the first recognized claimants at First Instance, the first family with children, the first victory since May 2008 (when the courts forced an acceptance), the first time that the right to work is talked about, the first case that wasn’t bumped to UNHCR for speedy acceptance … the first crack in the dam! Today the suffering that Karan and his family endured for seven years ends. Today Vision First and the refugee community celebrate a stunning victory! We heartily congratulate Karan’s family on this unforgettable day!
However, we shall never forget the prolonged, exhausting and desperate delay they suffered since seeking asylum in 2005. At this stage, to ensure anonymity, we cannot divulge anything about their background, case and protection process. Suffice it to say that Karan is one of the staunchest VF supporters and we have fought, side by side, many battles against the injustice that plagues the city’s disorganized two-track asylum system. Over seven years this family suffered unnecessarily the pains of exile – with insufficient support and even less compassion – dislocated by the failures of double screening: UNHCR with the Refugee Convention and Immigration with the Torture Convention. The day Hong Kong breaks the chains of this bipolar disorder can’t come soon enough.
It is great news that one family has had his torture claim accepted by Immigration department … but one is not enough. Putting this into proper prospective, one family out of over 3000 rejected cases since Jan 2010 remains wholly unacceptable and unreasonable. We are yet to see any acceptance rate that approaches even one percent. Today’s result yields a tiny fraction that, rounded off, remains effectively a zero percent recognition rate, no matter how you look at it. This statistic comes nowhere near international acceptance rates as found in other developed countries. Immigration still has a mountain to climb before the refugee community believes they are really implementing an informed, fair and efficient screening system clear of the culture of rejection we witness. For this results to be meaningful, we expect to see monthly acceptances. This small victory ensures that Vision First will double its effort to see Justice prevail in our city.
Joyce Man writes for The Atlantic - a liberal American magazine founded in 1857 in Boston, USA
Stuck in the territory in legal limbo, a number of political refugees have begun to speak out.
For eight years, Bawah ran. A minority in his West African country, he ran from the Bimoba tribe. He ran at night and in the rain, and when they fractured his left hand. Finally in 2005, fearing for his life, he ran much, much farther — to Hong Kong.
But now Bawah faces the opposite problem: His life has ground to a halt. First, he failed to get refugee status at the UN Refugee Agency and lost his appeal. Then, he applied to the Hong Kong government, asking them not to send him home for fear of torture, and lost. As he prepared to appeal, the system for screening claims like his was ruled unfair and went into hiatus. When it started again, he lost. In all, he has spent the same amount of time in limbo as he did running.
“I fled after moving within my country failed,” said the former teacher, 40, who asked to be identified by his nickname for fear of recrimination from the authorities. “In a fire, people flee through a door without knowing what will be on the other side. What I did not know was that I would fall into another fire.”
Here’s how Hong Kong’s system for vetting asylum seekers works or, some would say, doesn’t. The Refugee Convention does not apply to Hong Kong. Unlike many countries, it does not vet refugee claims, but refers them to the UN Refugee Agency. Since the UN enjoys diplomatic immunity, its decisions are not open to judicial scrutiny. The UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, however, does apply, so asylum seekers can make claims to the government under it. But this, critics say, has its own flaws.
Vision First, an organization that supports asylum seekers, estimates Hong Kong receives 2,000 of them per year. The UN agency says it receives about 300 applications for refugee status per month and approves, on average, 13.8 percent. Local Immigration Department figures show the territory received 1,174 torture claims last year and 88 so far this year, and allowed none.
But answers to some of Bawah’s frustrations could come soon, in a ruling from the city’s Court of Final Appeal in C, KMF and BF versus the Director of Immigration and Secretary for Security. The case, which concluded in early March and is awaiting judgment, challenges the government’s policy of referring refugee claims to the UN Refugee Agency. If successful, Vision First executive director Cosmo Beatson, says, it could be “a watershed moment”.
That’s not the only legal challenge against the system. In December, the court ruled that the government must consider whether an asylum seeker, if sent home, would be exposed to “cruel, inhuman or degrading treatment or punishment,” instead of only torture — which the local bar association called “highly significant.” A case arguing for the right to work for successful refugees and torture claimants will seek an appeal at the top court, and another one, on the right to an oral hearing in torture claims, might do the same.
“In the past few years, there’s been a real quake in system which has shaken the legal landscape and brought to the fore … the fact that refugees have rights,” Vision First executive director Cosmo Beatson said.
The outrage generated by what he calls the “zero recognition rate” is one factor prompting the legal challenges. Of 12,300 torture claims that the immigration department has received since 2004, when it introduced its first torture screening system, only one has been approved. That, Beatson says, does not jive with asylum recognition rates of 20 to 38 percent in liberal democracies.
“Is this system is so unfair that it’s not refined enough to find the genuine ones?” said human rights lawyer Mark Daly, who represented the plaintiffs in all these cases except the one ruled in December. “We’ve got young guys spending the best years of their lives in limbo. The system is failing them.”
The Security Bureau said it was “not apparent that there should be any correlation between the number of substantiated claims and the standard of fairness or effectiveness of the screening procedures.” Under the existing screening and statutory mechanism, it said, claimants are given “every reasonable opportunity” to make their case and can get publicly-funded legal assistance.
It said Hong Kong was small and had a dense population. Its unique situation, with its relative prosperity compared to the region and liberal visa regime, would make it vulnerable to abuse if the Refugee Convention were extended to it.
The bureau said it was studying the December ruling and seeking advice from the Department of Justice.
Simon Young, professor and director of the University of Hong Kong’s Centre for Comparative and Public law, said that while the territory was “a beacon,” especially in Asia, it was slow to recognize refugee rights, probably due to its experience with Vietnamese refugees. “Thus, when compared to other developed countries, Hong Kong is behind and has adopted asylum law protections in reverse order.” Other countries started with refugee protection, following by “complementary protection,” for those who are not found to be refugees but who still face a risk of other harm if sent home. Hong Kong started with the latter.
Advocates say they have yet to see results. “It’s like a hospital that sets up a flow chart on how to handle patients but everybody dies or gets discharged without getting healed,” Beatson said. “You can hire physicians and get X-Ray machines, but if nobody is healed, it’s failing.”
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