An extraordinary effort by the Vision First pro bono legal team secured a significant success against the immigration machinery that processes, rejects and finally removes 99.9% of refugees who have the misfortune of seeking the protection of the Hong Kong Government.
The operation to secure the liberty of Mr. A (who cannot be named for legal reasons), a South Asian refugee who arrived in Hong Kong in 2014, commenced on 6 May 2015 when Barrister Mark Sutherland and solicitor Tam Kam Tong met him at a legal visit at the Castle Peak Bay Immigration Centre (CIC). On the same day, a request was made to the Immigration Removal Assessment Section (RAS) for his immediate release on the grounds that his detention was arbitrary and unlawful.
It transpired that Mr. A had been detained throughout the entirety of the process of assessment of his first tier non-refoulement claim a process which took more than four months. Vision First has previously commented on the Director of Immigration’s apparent disregard for the judgment in Ghulam Rbani v Secretary for Justice for and on behalf of the Director of Immigration  17 HKCFAR 138, which requires the Director to act expeditiously in releasing a refugee once a claim has been filed. Vision First is not persuaded that four months in Mr. A’s case can be said to be an expeditious move towards release on any reading. See our blog: Legal visit exposes apparent abuse in immigration detention centre.
The later refusal of Mr. A’s claim was inevitable in view of the Government’s rejection of virtually all first tier claims.
To pour salt on the wounds, the Appeal mechanism worked against Mr. A before it even got off the ground. His first tier lawyer provided by The Duty Lawyer Service told him “I will not help you on your appeal.” Mr. A was therefore left stranded to fight his own appeal. Vision First poses the rhetorical question: “How can this meet the high standards of fairness prescribed by the Court of Final Appeal circa ten years ago in Secretary for Security v Sakthevel Prabakar  1 HLKRD 289?”
Although the facts that compelled Mr. A to claim asylum are not yet known in detail, and might or might not be meritorious, that a lawyer was not assigned to his appeal prejudiced the high standards of fairness required for the determination of his claims. Barrister Sutherland observed, “It is an issue of real justice. The first instance lawyer refused to assist and a second opinion on merits was not apparently provided. It was not a level playing field. The refugee was ambushed by the appeal process without any chance of success. This case might expose a troubling lacuna in the Unified Screening Mechanism.”
The complex process that led to Mr. A’s release tried the skills and determination of his lawyers. The Director of Immigration, Mr. K.K. Chan did not consider the grounds put forward for his release and instead scheduled his removal on a flight out of Hong Kong on 11 June 2015. The morning before, Mr. A. called Arif of the Refugee Union pleading for an urgent intervention. Time was of the essence, because he was scheduled to be taken to the airport the following day.
In the morning of 11 June 2015, the legal team comprising Barrister Sutherland and solicitor Tam, acting on a pro bono basis, made an urgent application for a writ of habeas corpus ad subjiciendum, coupled with an application for stay of execution of the removal order.
An ex parte hearing on notice was set for that afternoon at which Mr. Sutherland submitted to the Hon. Judge Chow that Mr. A could not be removed because he had not exhausted his legal remedies. These included an application for leave for a judicial review of his asylum claim rejection, as well as a damages claim for unlawful detention, not to mention an appeal against the refusal of legal aid.
The application was won by the Director of Immigration, who was represented at the hearing, despite the first-tier Notice of Decision and the Appeal Decision not having been made available in Court. This was against the backdrop of requests made to the Director of Immigration and The Duty Lawyer Service to produce all the documents pertaining to this case, all of which remain unanswered.
A message from a Refugee Union member later circulated on social media, “This calls for the Union to have heart. I saw our lawyer and barrister sweating on behalf of the refugee and I felt like collapsing due to the Immigration lawyer was insisting on removal. I saw people who don’t have empathy at all. Anyway we need to push forward.” Her disappointment was certainly shared by her colleagues.
After the hearing, the Immigration officers and Department of Justice Counsel Mr. Lawrance Chan were clearly pleased with the result, as evidenced by their smiling faces.
After the Court hearing, Solicitor Tam and Arif rushed to the airport to seek urgent instructions, but Mr. A was nowhere to be found. Both Immigration and the Police could not shed any light on his whereabouts.
Early the following day Barrister Sutherland recalls, “I personally telephoned CIC to ascertain Mr. A’s whereabouts and to notify Immigration Officer Mr. S.K. Wong that an urgent legal visit had been requested for later that day. To this, Mr. Wong, whilst confirming that Mr. A was at CIC, sounded surprised and replied, ‘You had better be quick because we are taking him to the airport tonight’”.
In the afternoon of 12 June 2015, the legal team met a visibly shaken Mr. A in CIC. He was afraid of being deported. It is likely that CIC officers had informed him about the High Court failure, at which he was not present despite the requirement for authorities to “produce the body” in habeas corpus proceedings, which is Latin for “you [shall] have the body”. It became apparent that the next few hours would be crucial as the Director of Immigration, Mr. K.K. Chan decides to either remove or release the refugee.
Mr. A’s “Right to Life” claim under Article 2 of the Bill of Rights had since been filed and the Director of Immigration warned not to remove him due to this further legal impediment.
At 6pm a triumphant Barrister Sutherland reported, “There is a new term in the asylum vocabulary. The Director of Immigration decided to STEP DOWN the removal procedures. Mr. A’s “Right to Life” application was accepted and tonight he will be moved to Ma Tau Kok (Immigration office). I expect he will be released very soon. The removal was successfully stopped at the eleventh hour.”
Later that evening Arif of the Refugee Union received an unexpected phone call from Ma Tau Kok. Arif reported, “Mr. A just called me from Ma Tau Kok. He could not contain his happiness. What a difference a day can make! This morning he was desperate because he was sure he would be deported. Tonight he couldn’t be happier because he is still in Hong Kong. He is so thankful for those who fight so hard for him.”
Vision First is pleased to report that Mr. A was released from detention on Saturday, 13 June 2015. It is now our tum to smile.