Court of Final Appeal forces Immigration to assess refugee claims

Post Date: Mar 25th, 2013 | Categories: 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