Srilankan grandmother arbitrarily detained for 18 months

Post Date: May 1st, 2014 | Categories: Advocacy | COMMENT

Madam Thilini came to Hong Kong from Sri Lanka seeking international protection with a classic refugee claim and persecution case under Art. 3 of the Hong Kong Bill of Rights. She fled her homeland alone in her sixties, leaving behind a dozen grandchildren, due to race-based persecution and ill-treatment.

In about June 2012, her torture claim petition was rejected by the Torture Claim Appeal Board, operated by the Security Bureau, and the Immigration Department decided to institute criminal proceedings against her in relation to the propriety of her entry into Hong Kong to seek refuge.

In about November 2012, Madam Thilini attended Shatin Magistracy court and the Immigration Department prosecution opposed any bail as a strategy to enforce detention, despite her never absconding, nor having a criminal record.

The gentle Grandmother would certainly be the last person that would fall under the profile of an illegal economic migrant bent on abusing the asylum system.

The charges brought against Thilini are typical for asylum seeker who are compelled to commit an immigration offense before the Director of Immigration recognizes their asylum torture claim.

Having determined her case did not amount to torture, it appears that the government was bent on prosecuting and removing the Grandmother, instead of affording her fair treatment in case she might be harmed or killed because of a rushed removal.

The Immigration prosecution never proceeded against Madam Thilini, yet every three months she was taken out of Tai Lam Women Centre (a detention or prison-type facility) and escorted to Shatin Magistracy Court where prosecution opposed bail. This process continued for 18 months.

It is noteworthy that upon instructions from Immigration, the prosecution vehemently opposed bail for a vulnerable, fragile Grandmother despite these two landmark cases compelling Hong Kong government to screen all asylum cases.

Madam Thilini requested Duty Lawyer Service to provide her with the lawyer of her choice, but her request was denied and DLS subsequently withdrew assistance to her citing her uncooperativeness for refusing to accept a lawyer unfamiliar with asylum proceedings.

The prosecutors opposed bail viewing her rejected torture claim as the end of the line for her asylum claims, despite knowing that the “Ubamaka case” would be decided by the Court of Final Appeal only a month later and “C case” about 5 months later.

After approximately 18 months in a detention cell a Magistrate granted Madam Thilini bail. It is assumed that the Magistrate looked at the time spent in prison and determined the Grandmother had been incarcerated longer than any sentence she might receive should she be found guilty.

Only in 2014 Madam Thilini was informed that she could apply for non-refoulement protection under asylum claims of the Unified Screening Mechanism (USM). Without understanding why she had been imprisoned for 18 months, in April 2014 a magistrate granted the distraught Grandmother bail.

This is a clear example of Immigration Department utilizing the judiciary to hold someone in custody pending any prosecution and the outcome of any asylum claim under the USM.

The High Court has recently criticizes the Director of Immigration for using the Courts to keep people in remand when the issue of remand falls solely under the mandate and discretion of the Director.

As the Hong Kong public is aware, the recent Court of Final Appeal “Rbani case” found the Director of Immigration liable for violating the constitutional, fundamental right to liberty of thousands of asylum seekers.

The unfair treatment of Madam Thilini raises the questions of whether she has been the victim of arbitrary, unlawful detention and whether the conduct of the Hong Kong government has been motivated by racial discrimination. Such treatment is an affront and the results of egregious conduct by Immigration.

The Immigration Department has been warned by the Courts that it cannot keep people in custody as a channel to avoid exercising its discretion and potential liability for holding asylum seekers unlawfully at Castle Peak Bay Immigration Centre (“CIC”). Hong Kong’s asylum system has been found to be unlawful numerous times and a chronology of the failed asylum policy is available here.

Madam Thilini will appeal before the Shatin Magistracy Court on Friday, 2 May 2014, as the Department of Justice and Director of Immigration continue their extensive efforts to prosecute a Grandmother who fled to Hong Kong seeking refuge.

Could the government machinery be on a witch-hunt of persons seeking asylum in the city?

Refugees endure living conditions that most Hong Kong citizens would find hard to believe especially taking into account they are funded by the Social Welfare Department