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A fourth Tamil is recognized as torture victim

Apr 23rd, 2013 | Advocacy | Comment

At a strategy meeting for the upcoming street protest, it was said “Wait and see, Immigration will accept another torture claimant before 27 April to look good when the press challenges them over the zero-percent!” Instead of admitting with a red face, “There was one substantiated claim in May 2008″, they powers-that-be devised a more palatable strategy and yesterday recognized a fourth Tamil torture victim. One cannot fault the logic of this strategy, though its timing appears to be closely connected with our demonstration. When Mr. International Journalist calls Immigration Tower – and we have it on good authority this is happening – how much nicer for the besieged spokesperson to reply with a smile, “What zero-per-cent? In actuality, the administration accepted five claimants last month [NB. 1 claim for a family of 5, two kids born here], one in early April and another one this week.” This is exactly what we predicted. Yesterday another Tamil gentleman joined the ranks of those the government promises, much belatedly, not to repatriate into harm’s way, or more likely, certain death.

The credit goes entirely to the fighting spirits at Barnes & Daly (recently restructured as Daly & Associates) who represented all four winning cases. This raises a first self-evident issue: if other duty lawyers practiced their profession as diligently, then presumably more victories would be celebrated elsewhere. We understand there are about 300 duty lawyers defending torture claimants. One has to wonder about the skills and commitment of the others, who seem reluctant to defend their clients tooth and nail. As for today’s success, here are the details: for obvious reasons, his name cannot be divulged, so let’s call him Mr. Four. Mr. Four is the fourth Tamil to be protected and his legal battle took a lengthy eight years. He is single, lives in Shamshuipo – the heart of the Kowloon refugee community - and arrived in 2005 after spending several years in a refugee camp in India and seeking asylum in Malaysia. Finding life unbearable in those two countries, he fled to Hong Kong hoping to gain international protection. Mr. Four’s case was rejected by UNHCR and Immigration also rejected him both at first instant and appeal. Rumour has it that, after he was detained at Castle Peak Bay Immigration Centre (CIC), Mr Daly had him released the next day. Yesterday’s details are still sketchy, but we are told there was a High Court hearing and finally Mr. Four’s claim was accepted.

So what about the “zero percent” Vision First is taking to the street? There was a confrontation in the office of ISS this week. One of our supporters was distributing flyers there, encouraging claimants to support the march. A senior officer approached and challenged him, “It’s not true that it’s zero percent!” Apparently this officer, buying the official line, thought this claim was a calumny devised to discredit the government. But hold on a moment and launch the calculator app on your smart phone. There have been 12,409 torture claims raised in Hong Kong under the Torture Convention since 1992. With 4 successful claims to-date, let’s divide 4 by 12,409 … the result is 0.0003 … which converted to a percentage is 0.03% … this effectively rounds up to zero percent. Vision First will campaign against the “zero percent acceptance rate” until 124 victims of torture have been recognized. Only then may we speak mathematically of one percent. Until that distant day, any calculator will easily prove the point. While we gladly celebrate with Mr. One, Mr. Two, Mr. Three and Mr. Four, how can we forget the suffering of the thousands who had their cases rejected? How can we turn our backs on those who are grilled by Immigration on low heat year after year? Who will remember the skinny young man who was taken seven times from CIC to the airport, lost a tooth fighting off officers, and was finally drugged with a laced meal to be buckled into an aeroplane seat? Who will remember the hair-raising screams of the lady who called her boyfriend on the phone as she was dragged off, helpless, to the airport? How many times was justice trampled in twenty years of, so-called, torture protection?

For a comparison with refugee protection rates in Australia, please click here.

Disseminating reliable information is the first step in fighting social injustice

Sri Lankan first to win asylum under new appeal process

Apr 13th, 2013 | Advocacy | Comment

Patsy Moy writes for South China Morning Post on 13 April 2013

A torture claimant seeking asylum in Hong Kong is believed to be the first person to win an appeal case since a new process was put in place in 2009. Mark Daly – lawyer for the Sri Lankan involved, a Tamil – said the case “lends some credibility to the process”. The Torture Claims Appeal Board had received 1,335 appeals by the end of last year. Daly said: “He was taken completely by surprise by the decision. It has been so long. He has been here in limbo for 10 years. He was really emotional and was not able to say much.” Last month, another Sri Lankan man became only the second torture claimant to have his application approved out of more than 12,000 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. Human Rights Monitor director Law Yuk-kai welcomed the latest verdict, but feared the Immigration Department would launch a legal challenge against the decision by the board.

Daly said his client, who arrived in 2003 and is now in his 30s, received a letter from the board on Thursday giving the good news. The Security Bureau said yesterday the board’s decision was final under the Immigration Ordinance, but it can be challenged through judicial review in court. While it means he will no longer face repatriation, Daly said his client’s rights in Hong Kong remained “minimal” and his future was still unclear. “The independent appeal board was set up to hear a fair independent appeal. If the director of immigration rejected their claims, claimants have the right to appeal to this board. It is an important procedural safeguard. “However, there had not been any successful appeal [before this case] and a lot of people were getting concerned about the fairness of the system. So the message about this successful appeal is important.”

Daly said the appeal board accepted that his client had established a genuine case as a torture claimant after considering all available information, which indicated that Tamils were at risk of torture at the hands of Sri Lankan state security forces. The appeal board – a panel of former judges and magistrates – is part of enhanced torture-screening mechanisms introduced by the government following a 2008 case in which the Court of First Instance ruled the then screening process failed to meet high standards of fairness. The Immigration Department received 1,809 torture claims in 2010, 1,432 in 2011 and 1,174 last year. In the same period, the board received 109, 460 and 766 appeals, respectively. Of the torture claims the department received, 606 (33.5 per cent), 437 (30.5 per cent) and 244 (20.8 per cent) were lodged by former foreign domestic helpers, according to written replies to the Legislative Council by the Security Bureau on Tuesday.

Too soon to cry victory

Apr 12th, 2013 | Advocacy | Comment

Vision First is glad to report that Thursday a Srilankan Tamil was accepted by the Torture Claim Appeal Board that overturned Immigration rejection at first instance. He is a single male who sought protection in Hong Kong nine years ago. He was represented by Barnes & Daly and was very surprised by the good news after all but giving up. This torture survivor is the third to be recognized since the Torture Convention was extended to the territory in 1992. The first claimant to be accepted was a Tamil in May 2008 and the second was another Tamil in March 2013 - five years after the previous one. Yesterday an Appeal Board adjudicator surprised the refugee community by overturning a Torture Claim Assessment Section rejection. This significant decision marks the first time the Appeal Board as not confirmed a prior Immigration rejection. Our advocacy efforts shifted the spotlight on claimants’ deep dissatisfaction with an appeal system that has – until today - systematically rubber-stamped every Immigration dismissal. Could this mean the administration is responding to public criticism of an effective zero-percent acceptance rate? Is change in the air and will more victims be recognized? There is no shortage of strong, substantial cases among the city’s 4300 claimants. While we acknowledge the second success in three weeks, it is far too soon to cry victory! Vision First has advocated robustly against the government’s culture of rejection, a culture that permeates many departments and punishes claimants with unnecessary hardship. Why not ask yesterday’s winner about waiting nine years for recognition? Why not ask how he likes Hong Kong and how he survives without the right to work? He might concede that his circumstances are better than others, as single men can endure suffering that families cannot, but his has been a harrowing journey of depression and despair. And today has his life really changed? After the surprise of this validation wears off, the realization will surely follow that successful claimants remain beggars without rights to residence or work. So effectively nothing changes in their daily life of emergency rations and limited rental assistance. The other question is: why Tamil + Tamil + Tamil? Here’s some background information from Wikipedia. “The Sri Lankan Civil War was a conflict fought on the island of Sri Lanka. Beginning on 23 July 1983, there was an intermittent insurgency against the government by the Liberation Tigers of Tamil Eelam (the LTTE, also known as the Tamil Tigers), a separatist militant organisation which fought to create an independent Tamil state called Tamil Eelam in the north and the east of the island. After a 26-year military campaign, the Sri Lankan military defeated the Tamil Tigers in May 2009, bringing the civil war to an end.” With over 100,000 deaths, it was one of the longest wars in modern history. Today the vanquished Tamil are not assured that the Srilankan government will honor peace and reconciliation agreements. Hong Kong government realizes that high-profile LTTE supporters will probably face torture, or worse, if repatriated. Ultimately three wins are a drop in the ocean. It does nothing to alleviate the thirst for justice that outrages the remaining 4,300 torture claimants. On 8 April 2013, Immigration sent Vision First the latest statistics for torture claims. The letter states that in 21 years 12,409 torture claims were received. The letter was issued 8 April and does not include yesterday’s result. Attention should be given to the misleading statement that, “a total of 5 torture claims were decided as substantiated”. In actuality, it refers to last month’s acceptance of one Tamil family: a father, a mother and three children (two born in Hong Kong) who lodged one, not five separate torture claims. The letter further states that from December 2009 Immigration rejected 3,110 claims and 3,330 cases were withdrawn by those who gave up. It is our opinion that among the latter, the majority had lost hope of ever receiving a fair screening or independent appeal. Massive rejection rates are an apparent strategy to snuff out hope in the heart of refugees. For a comparison with these results, let’s analyze the Australian “Asylum Statistics 2012” – in 2012 Australia granted protection visas to 44% of refugees who arrived legally (p.10) – in 2012 Australia granted protection visas to 71% of refugees who arrived illegally by sea (p.13) Australian protection visa rates (regular arrivals) in 2012

The watchdog of refugee rights

Apr 10th, 2013 | Advocacy | Comment

Outreach work is full of surprises and always rewarding. By hitting the road and visiting distant villages, we learn how refugees struggle against a culture of rejection that wishes they had never arrived. Leaving behind bustling Kowloon and a heavy downpour, we met sunshine and welcoming villagers in the Pat Heung hills, outside Kam Tin. On a carpeted floor in a specious second-floor apartment, it felt unexpectedly as if we were in the Pakistani tribal lands. First one, then two dozen, then over thirty torture claimants came to hear the news Vision First brought. It was the first time anyone present had met refugee workers other than ISS case-officers. These folk don’t go to Kowloon. They don’t visit other NGOs. And they sure don’t seek church support. It was only men, but we were told there are mothers and children too, who had stayed home because of the rain. The news of the March of Protection had reached their community and we were invited to speak to these representatives of a couple hundred torture claimants. We sat on the carpet and introduced Vision First, warming up to these total strangers. It isn’t hard to explain to a Pakistani audience why we demonstrate against a zero-percent acceptance rate of torture claimants.

Since 1992, out of 13,000 claimants, of which they probably are a majority, not a single Pakistani has been recognized as victim of torture. How can that be possible? Compare this 0% protection of Pakistanis with Australia’s 74% in 2012 (Asylum Statistics 2012, p. 10) In other words, forty-percent of Pakistani who claimed asylum in Australia last year were considered deserving of international protection. They didn’t have to appeal, nor seek judicial reviews that would still end up in rejection in Hong Kong. Are they different refugees, more honest, more credible, more deserving than those who reach our city? Their nationals are regrettably labelled as economic migrants and fortune seekers. They are hastily dismissed with a comment like, “These people are not real refugees!” After hearing this often enough, even they might start believing it. On the contrary, there are at least seven legal grounds for them to raise a claim that engages Hong Kong’s protection obligations. You can start counting: 1. Basic Law, 2. Bill of Rights, 3. Statute Law, 4. Common Law, 5. Customary International Law, 6. Torture Convention and 7. ICCPR – each of these legal instruments guarantees the right not to be subject to torture or cruel, inhuman treatment. Make your pick!

We have to reserve our judgement. It is not up to us to determine whom the government should protect and whom they should remove. We cannot say who has substantial reasons to fear torture and who is simply paranoid. We cannot homogenize their identity and reasons to seek asylum without studying their cases. We must resist the facile temptation to label in wilful ignorance. The truth is that we have been conditions so deeply by government propaganda, cultural bias and sheer misinformation, that resisting judgement takes more than a slight effort. Vision First is of the view that every torture claimant must be considered a victim – entitled to non-refoulement protection – until excluded by an informed, fair, effective and efficient screening mechanism. Think of it this way. If a system fails to identify bona-fide refugees – despite having enhanced the process over a decade – then would you like to be subject to its investigation? History teaches many interesting lesson to those who care to learn. For example, how is this torture screening different from the Spanish Inquisition? That witch hunt probably had a zero-percent protection rate, once inquisitors were set on purging society from those unwelcome for reasons other than those for which the investigation was established. Hong Kong government’s propensity to reject isn’t very different. It doesn’t matter the evidence, thirteen-thousand torture claimants have been condemned to the stake. Organizing resistance to this institutional injustice is the reason why Vision First is being called, “the watchdog of refugee rights”.

Thirty Pakistani torture claimants learn about refugee rights

Immigration will take over refugee screening from UNHCR

Apr 6th, 2013 | Advocacy, Media | Comment

This editorial was published in South China Morning Post on 6 April 2013

The government has been reluctant to even screen refugee applicants for genuine cases since the ordeal of handling tens of thousands of Vietnamese asylum seekers in the 1980s. They fear that to do so might reopen the floodgates. The job is left to the office of the UN High Commissioner for Refugees, from whose decisions there is no appeal, and which has limited resources. As a result, resettlements do not keep up with the annual influx of about 2,000 claimants. Thousands now live in limbo, forbidden to work legally and are dependent on charity.

Refugee rights activists are understandably excited about a ruling by the top court that the government cannot rely on a UN agency to decide whether someone is a bona-fide refugee, and not simply someone seeking a better life, and must assess the cases fairly and independently. Allowing a challenge by three African men, the court also said decisions on whether to deport refugee claimants must be subject to judicial review. The screening system is now expected to be revised, although officials say the ruling will not affect the policy of not giving asylum to anyone. Instead, people granted refugee status in Hong Kong are resettled elsewhere. Nonetheless, as refugee advocates say, the ruling brings justice and hope to those seeking asylum here.

That should prompt the administration to reflect on its stand. The post-Vietnam-war experience may dictate caution. Indeed, while Hong Kong is a signatory of the international convention against torture, it is not a signatory on the status of refugees. But that is no reason to turn away genuine cases. We are an affluent society with the capacity and resources to do more for them. As a community we have a well-earned reputation for generosity such as disaster relief in times of dire human need. We rightly take pride also in being a humane society with safeguards for human rights. It is time to be a little more flexible and less mean-spirited to others who turn to us for help.

[Vision First note]To clear any lingering doubts about why the Immigration Department is now obliged to take over refugee screening from UNHCR, you may read the relevant quotes from FACV No 18, 19 & 20 of 2011. Please click “Read more” to bring into sharp focus this new reality.

Persecuted protected by customary international law, UNHCR says

Mar 28th, 2013 | Advocacy, Media | Comment

Joyce Man writes for South China Morning Post on 7 March 2013

The idea of HK exempting itself from international law that opposes sending people to face possible abuse must be refuted, refugee body says

The principle of not sending a person to a place where he may be persecuted is “beyond doubt” customary international law, the UN refugee agency says. The United Nations High Commissioner for Refugees weighed in yesterday at the hearing of three African men who were making their last attempt to challenge the way the city vetted refugee claims. The trio argues that the government must assess the applications itself rather than passing the responsibility to the UNHCR. “[The principle] is, at minimum, customary international law,” Gerard McCoy SC, for the UNHCR, told the Court of Final Appeal. “The matter, we say, is simply beyond doubt.” The UN agency said it seemed that the Hong Kong government wanted to contend Asian countries were somehow exempted, McCoy said. “This has to be refuted. The idea of a Hong Kong or regional opt-out from this fundamental cornerstone is inconceivable.”

The barrister said the UNHCR would reserve the right to argue that the principle was peremptory, that is, one so fundamental that no state may depart from it. Benjamin Yu SC, for the government, said it could let someone stay by exercising its discretion on humanitarian grounds, but it was not obliged to do so. Hong Kong is not a signatory to the UN Convention Relating to the Status of Refugees, and is therefore not subject to obligations under it. The government does not take applications for refugee status but instead refers them to the UNHCR. The three men – in their 20s and 30s from the Democratic Republic of Congo and Republic of Congo – point to problems in the UNHCR’s assessment process, including that its decisions are immune from judicial scrutiny. They also say the principle to which McCoy has referred, known as non-refoulement, has become a norm from which no state can depart.

The UNHCR was not a party to the proceedings until recently. Late last year, against the government’s objections, a judge allowed its application to join, McCoy said outside court. He told the court that the agency operated only under a mandate of protection from the UN. Any immigration decisions, such as whether to deport a person, were for states to make and no country could pass its legal responsibilities to the UNHCR, he said. McCoy also said the agency’s decisions were not susceptible to judicial scrutiny. All three men, who have not been identified by name, earlier had their applications for refugee status rejected by the UNHCR, as well as their appeals. The Security Bureau said it would not comment as the legal proceedings were ongoing. The hearing continues before Mr Justices Patrick Chan Siu-oi, Roberto Ribeiro, Robert Tang Ching, Kemal Bokhary and Anthony Mason.

Security Bureau letter on CIDTP claims

Mar 28th, 2013 | Advocacy | Comment

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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Top court says Hong Kong must assess refugee cases, not UNHCR

Mar 26th, 2013 | Advocacy, Media | Comment

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

The government cannot simply rely on a United Nations agency to decide whether someone is a refugee and must assess the cases independently and fairly, the top court ruled yesterday. The screening system is now expected to be rewritten after five judges of the Court of Final Appeal unanimously allowed a challenge by three African men. The government said the ruling would not affect the city’s policy of not granting asylum to anyone. Instead, people granted refugee status in Hong Kong are resettled elsewhere. The court ruling says the director of immigration’s decisions to deport refugee claimants must be made according to high standards of fairness, and be subject to judicial review. Patricia Ho, the lawyer representing the three challengers, said: “I am very excited.” She said that her three clients were also very happy, adding: “It’s good news, not only for myself but for the entire asylum-seekers community.” Currently, the Immigration Department screens people arriving in Hong Kong who claim to be escaping torture, while the UN High Commissioner for Refugees screens refugee claims. This two-pronged approach has been criticised as time-consuming and open to abuse.

 

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”

Court of Final Appeal forces Immigration to assess refugee claims

Mar 25th, 2013 | Advocacy | Comment

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 

One is not enough

Mar 22nd, 2013 | Advocacy | Comment

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.

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