(Published in the South China Morning Post, Apr 19, 2011 – by Chris Ip)
The Court of Appeal yesterday upheld an Immigration Department requirement that people fleeing torture in their home countries stay in Hong Kong long enough to be illegal “overstayers” before they can lodge an appeal to stay in the city. Mr Justice Michael Hartmann said the United Nations convention was silent on the exact way an application had to be processed, as long as the claimants were not sent back to a state where they could be tortured. Critics have argued that the policy makes it harder for claimants to prove they have been tortured in their home countries, because physical evidence of past torture can fade as the process is delayed. Hartmann agreed with Mr Justice Andrew Cheung Kui-nung’s Court of First Instance judgment that without a special regime to deal with torture claimants, the Director of Immigration has the legal power to run the procedure as he wishes. Legco was due to legislate on a processing mechanism last year but a bill has yet to be passed. “Our courts have long recognized that because of Hong Kong’s unique geographical, social, historical and economic circumstances, the director has acted lawfully in determining that he is not in a position to devise immigration policies that are perhaps not as generous as policies formulated in other jurisdictions,” Hartmann said in the judgment. The case was also heard by Mr Justice Joseph Fok and Mr Justice Anthony To. The judicial review concerns two separate torture claimants from Cameroon and the Democratic Republic of Congo who were both permitted to stay in Hong Kong for 14 days on arrival. Each man, during that period, approached the Immigration Department to lodge a claim under the 1984 UN Convention Against Torture. As part of the convention since 1992, Hong Kong is obligated to practice non-refoulement – to not send people back to a state where they could be tortured.
However, both applicants were told they could not make a claim while they were lawfully in the city. They had to remain longer than the legal 14 days and become “overstayers” before they could attempt to gain protection. Technically that made them illegal immigrants, giving authorities the right to arrest, detain and prosecute them. Philip Dykes SC, for the appellants, argued that a delay in processing could weaken a claimant’s case, because the best proof that they could be tortured if sent home was evidence they had been tortured. Dykes referred to the Istanbul Protocol, a UN manual on how to investigate torture, which describes “promptness” as a “fundamental principle of any viable investigation”. “If it is alleged to have happened within the past six weeks, such an examination should be arranged urgently before acute signs fade,” the 2004 document says. Hartmann accepted the argument. “If it is known that a claimant alleges recent torture, immediate steps should be taken to arrange for a medical examination,” he said. But he said the Director of Immigration’s vast purview on policy meant it was legally possible for him to make exceptions for cases that needed to be processed quickly. Anderson Chow Ka-ming SC, for the director, said in the hearing that there was no evidence that the director would never grant an exception. But Mark Daly, solicitor for the applicants at law firm Barnes & Daly, said he knew of no occasion where an exception had been made in more than a decade working on hundreds of torture claimant cases. He said they were considering an appeal.