There wasn’t an empty seat in the courtroom as members of the Refugee Union attended the emergency proceedings to stop the hasty removal of a hapless South Asian refugee by the Director of Immigration. Flanked by two stern-looking Immigration officers in blue uniforms, a bewildered Mr. Q stooped apprehensively in a High Court defendant box. A dark oversize jacket draped the worries of a man who would have been deported three days earlier were it not for the timely intervention of a pro bono legal team.
It is likely that Mr. Q was profiled as undesirable by Immigration officers when he arrived at Hong Kong International Airport on 23 December 2014. He was refused permission to land and taken into custody. He subsequently lodged an asylum claim and was detained at CIC under Section 37ZK of the Immigration Ordinance that prescribing, “A claimant may be detained … pending final determination of the claimant’s torture claim.” The issue is: How long can a refugee be lawfully detained?
Trouble erupted in Mr. Q’s life after he participated in district elections in his country of origin and was assaulted and threatened that, “All your family will be wiped out if you don’t change political party.” As the 45 year-old family man was unwilling to fight back, the forsaken road of asylum beckoned and he fled to Hong Kong. On 9 March 2015 Immigration rejected his asylum claim at first instance and a troubled Mr. Q sought the assistance of the Refugee Union.
“He has a strong case and is afraid of being deported”, explains Arif of the Refugee Union, “He called me from CIC. He said that if he goes back [his country], his opponents will kill him. Immigration rejected his case and on 18 May arranged a plane ticket to remove him. He was very scared. It was a big emergency. I am very thankful to the lawyers who helped us immediately.”
Alerted by the Refugee Union, solicitor Chris Lucas and Barrister Robert Tibbo swung into action to counter manoeuvres by the Director of Immigration aimed ostensibly at expediting Mr. Q’s removal. Considerable weight should be given the fact that the lawyers had met the refugee during a pro bono legal visit to CIC on 6 May 2015, but nevertheless Immigration flagrantly ignored such legal representation to fast-track the rejection of Mr. Q’s appeal and his removal in a matter of days. Such rushed arrangements are sufficient to raise suspicion on this case.
An attentive audience followed the two-hour Habeas Corpus hearing that was opened by Barrister Tibbo’s statement: “The Director of Immigration fast-tracked the removal of my client. He has ridden rough-shod over the constitutional rights of a refugee who was warehoused in CIC, as if in an Australian off-shore processing centre. My client was detained for five months instead of being released five weeks after lodging a Non-Refoulement Claim as prescribed by law.” It was submitted that pursuant to the Ghulam Rbani Court of Final Appeal Judgement, Immigration failed in due diligence and gave rise to conduct that is now subject to a damage claim.
The legal grounds briefly state that the Director of Immigration, K.K. Chan cannot lawfully detain a claimant when it becomes clear that the determination process cannot be concluded within a reasonable time. The Ghulam Rbani judgment sets this at five weeks, not the five months of Mr. Q’s ongoing detention. Mr. Tibbo put to the court that the discretion to release a refugee must be exercised after five weeks, or the subsequent detention period becomes arbitrary and therefore unlawful.
Counsel raised a host of problems, including: looking at the Questionnaire it appears that Mr. Q did not receive proper legal representation inside CIC; he did not have access to resources and country of origin information; he attended an oral hearing without a lawyer; he did not have a lawyer for the appeal; the appeal rejection contained fundamental mistakes; the decision was not interpreted in his language; CIC officers prevented Mr. Q from faxing documents to his lawyers; and, a copy of Immigration’s Notice of Decision had not been provided to the legal team, despite formal request made to the Director of Immigration.
“Given the complexity of his claim,” Tibbo submitted, “My client should have been released at the five week mark. Instead he was discriminated. Many other claimants have been released. Why not him? He was treated differently from others released on recognizance, many of whom are in this courtroom. The Director of Immigration cannot detain arbitrarily and cannot do this without good reason. My client should not be removed from Hong Kong pending the exhaustion of his legal rights, including a judicial review of the rejection of his Non-Refoulement Claim and a damage claim for unlawful detention.”
The Honourable Judge Kent Yee presided fairly and extended the stay on the removal order until 29 May, indicating that he intended to give this matter further thought before issuing a written judgement on 26 May 2015. The defence team was encouraged by the extension that granted time to apply for Legal Aid and successfully resist Immigration’s attempts to hastily remove Mr. Q arguably in violation of his right to asylum.