Sri Lankan first to win asylum under new appeal process

Post Date: Apr 13th, 2013 | Categories: 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.