Chris Ip writes in SCMP on Jul 22, 2011

Version Française: Appel rejeté de demandeurs d’asile

An appeal for the government to process asylum seekers, which took the Court of Appeal more than 17 months to rule on, ended in a dismissal yesterday. Asylum seekers currently either seek refugee status from the United Nations High Commissioner for Refugees (UNHCR), or they apply to the Immigration Department for classification as genuine torture claimants. This system of two separate processes to determine who should or should not be given protection, has been criticised for years

Yesterday’s judgment left the status quo unchanged. The judgment said Hong Kong’s domestic laws explicitly overrode recognised international norms of not returning asylum seekers to their countries. This meant that the government can continue to reject taking responsibility for screening asylum seekers. The case concerns six asylum seekers from Africa and South Asia, whose claims were rejected by the UNHCR. The government says there are 6,700 torture claimants here, while the UNHCR says there are 535 asylum seekers. Many claimants apply for protection through both processes.

The Law Society, Bar Association and the UNHCR are critical of the current dual-track system, and are advocating a single system that is run by the government. The current system allows fraudulent claimants to stall for time by applying through one of the processes after they are rejected by the other. Meanwhile, the genuinely vulnerable claimants have to wait for years for their application to be processed. UN agencies are non-governmental bodies, so they are not obliged to be transparent in their application process. Unlike the government’s application process, UNHCR applicants do not receive legal assistance, they lack legal recourse to appeal the UNHCR’s ruling on their application, and they do not even know who decides their applications.

“It just goes into a black box and you don’t know who’s making the decision,” said Mark Daly, a human rights solicitor who represents asylum seekers. Madam Justice Maria Yuen Ka-ning said in her judgment that even if the international norms – known as customary international law – applied, it did not follow that the government itself had to screen asylum seekers. It could leave that to the UNHCR, Justice Yuen said. Mr Justice Andrew Cheung Kui-nung and Mr Justice Johnson Lam Man-hon agreed with her argument. The judgment comes a week after the first reading of the long-awaited revised Immigration Bill. Daly said it was “highly likely” that he would initiate an appeal for the six asylum seekers to the Court of Final Appeal. He said the verdict was the longest wait for a judgment that he could remember in his legal career.