This editorial was published in South China Morning Post on 6 April 2013
The government has been reluctant to even screen refugee applicants for genuine cases since the ordeal of handling tens of thousands of Vietnamese asylum seekers in the 1980s. They fear that to do so might reopen the floodgates. The job is left to the office of the UN High Commissioner for Refugees, from whose decisions there is no appeal, and which has limited resources. As a result, resettlements do not keep up with the annual influx of about 2,000 claimants. Thousands now live in limbo, forbidden to work legally and are dependent on charity.
Refugee rights activists are understandably excited about a ruling by the top court that the government cannot rely on a UN agency to decide whether someone is a bona-fide refugee, and not simply someone seeking a better life, and must assess the cases fairly and independently. Allowing a challenge by three African men, the court also said decisions on whether to deport refugee claimants must be subject to judicial review. The screening system is now expected to be revised, although officials say the ruling will not affect the policy of not giving asylum to anyone. Instead, people granted refugee status in Hong Kong are resettled elsewhere. Nonetheless, as refugee advocates say, the ruling brings justice and hope to those seeking asylum here.
That should prompt the administration to reflect on its stand. The post-Vietnam-war experience may dictate caution. Indeed, while Hong Kong is a signatory of the international convention against torture, it is not a signatory on the status of refugees. But that is no reason to turn away genuine cases. We are an affluent society with the capacity and resources to do more for them. As a community we have a well-earned reputation for generosity such as disaster relief in times of dire human need. We rightly take pride also in being a humane society with safeguards for human rights. It is time to be a little more flexible and less mean-spirited to others who turn to us for help.
[Vision First note]To clear any lingering doubts about why the Immigration Department is now obliged to take over refugee screening from UNHCR, you may read the relevant quotes from FACV No 18, 19 & 20 of 2011. Please click “Read more” to bring into sharp focus this new reality.
Joyce Man writes for South China Morning Post on 7 March 2013
The idea of HK exempting itself from international law that opposes sending people to face possible abuse must be refuted, refugee body says
The principle of not sending a person to a place where he may be persecuted is “beyond doubt” customary international law, the UN refugee agency says. The United Nations High Commissioner for Refugees weighed in yesterday at the hearing of three African men who were making their last attempt to challenge the way the city vetted refugee claims. The trio argues that the government must assess the applications itself rather than passing the responsibility to the UNHCR. “[The principle] is, at minimum, customary international law,” Gerard McCoy SC, for the UNHCR, told the Court of Final Appeal. “The matter, we say, is simply beyond doubt.” The UN agency said it seemed that the Hong Kong government wanted to contend Asian countries were somehow exempted, McCoy said. “This has to be refuted. The idea of a Hong Kong or regional opt-out from this fundamental cornerstone is inconceivable.”
The barrister said the UNHCR would reserve the right to argue that the principle was peremptory, that is, one so fundamental that no state may depart from it. Benjamin Yu SC, for the government, said it could let someone stay by exercising its discretion on humanitarian grounds, but it was not obliged to do so. Hong Kong is not a signatory to the UN Convention Relating to the Status of Refugees, and is therefore not subject to obligations under it. The government does not take applications for refugee status but instead refers them to the UNHCR. The three men – in their 20s and 30s from the Democratic Republic of Congo and Republic of Congo – point to problems in the UNHCR’s assessment process, including that its decisions are immune from judicial scrutiny. They also say the principle to which McCoy has referred, known as non-refoulement, has become a norm from which no state can depart.
The UNHCR was not a party to the proceedings until recently. Late last year, against the government’s objections, a judge allowed its application to join, McCoy said outside court. He told the court that the agency operated only under a mandate of protection from the UN. Any immigration decisions, such as whether to deport a person, were for states to make and no country could pass its legal responsibilities to the UNHCR, he said. McCoy also said the agency’s decisions were not susceptible to judicial scrutiny. All three men, who have not been identified by name, earlier had their applications for refugee status rejected by the UNHCR, as well as their appeals. The Security Bureau said it would not comment as the legal proceedings were ongoing. The hearing continues before Mr Justices Patrick Chan Siu-oi, Roberto Ribeiro, Robert Tang Ching, Kemal Bokhary and Anthony Mason.
Simpson Cheung writes for South China Morning Post on 26 March 2013
Top court decides government can no longer rely solely on UN agency to vet asylum seekers and that its decisions can be challenged in court
Although the judgment did not mention how the government should be vetting the cases, Ho and other advocates expected the role of the UN agency to fade. “Understanding UNHCR’s constraints in its finance and manpower, it is quite unlikely that it would duplicate the job if the government was doing it already,” Ho said. Non-permanent judge Mr Justice Anthony Mason said in the court ruling that it was not right for the immigration director to simply rely on the UNHCR. “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 he has done so in a way that falls short of the anxious scrutiny and high standards of fairness,” he said. Cosmo Beatson, executive director of Vision First, which advocates refugees’ rights, said agency decisions were immune from legal challenges and the success rate for claims was low. He hoped the estimated 1,000 asylum seekers it had rejected but who were still fighting to stay in Hong Kong would submit their cases again. “This brings justice and hope to those seeking asylum in Hong Kong who, until today, have had to rely exclusively on the arbitrary decisions of UNHCR,” he said.
This brings justice and hope to those seeking asylum in Hong Kong who, until today, have had to rely exclusively on the arbitrary decisions of UNHCR Cosmo Beatson, executive director of Vision First. He called on the government to combine vetting procedures for torture and refugee claimants. He said this would speed up the process and prevent economic migrants from buying time in the city by first applying for one status and, when that failed, then applying for the other. Mr Justice Kemal Bokhary said in the judgment a combined system would be “one of the choices open to the executive”. Annie Lin, of equal-rights campaign group the Society for Community Organisation, also welcomed the ruling. She added that she hoped the UNHCR would continue to help resettle recognised refugees. Last night, Bawah, an African whose refugee claim had been rejected, said he would definitely now apply to the government. “I need justice. I want my case to be assessed with humanity.” Spokesmen for both the Security Bureau and the Immigration Department said the government would be studying the judgment and seeking legal advice on the way forward. A UNHCR spokesman welcomed the court ruling, but would not say if it would keep taking cases or pass its current caseload – about 900 claims – to the government. About 100 refugees are awaiting resettlement.
“”Hey, remember to switch the lights off when you leave”
Joyce Man writes for South China Morning Post on 23 March 2013
Sri Lankan no longer faces deportation;
rights advocates say ruling offers others hope
The city has accepted its first torture claim since enhancing its screening system four years ago, a move that advocates of asylum seekers view as good news, yet far from sufficient. The Sri Lankan man’s claim is only the second to have been approved in Hong Kong out of more than 12,000 applications 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. The first claim was approved in 2008. The man, whose name cannot be disclosed for confidentiality reasons, received his approval from the Immigration Department on Thursday, his lawyer Peter Barnes told the South China Morning Post yesterday. This means the government will keep the man from being returned to Sri Lanka, where he faces risk of torture. “[The man is] very happy and relieved. He’s been waiting for this for a long time, and it requires a great degree of persistence and faith,” said Barnes. “Obviously, it’s good news for him, but it’s also good news for the system, which has finally recognised that there’s a person who’s in need of protection,” said the lawyer, a specialist in human rights law at Barnes & Daly. “I hope that now they’ve recognised one, they’ll be prepared to recognise others who are equally deserving of protection.” The Sri Lankan is also the first torture claimant in Hong Kong to win approval at the first try. The 2008 case was approved only after an appeal ruling in court.
The man’s approval covers his entire family, said Cosmo Beatson – executive director of Vision First, an organisation that supports asylum seekers in Hong Kong – who had spoken to the Sri Lankan. Despite being “thrilled” that the Immigration Department had accepted the claimant, Beatson said one was not enough. Hong Kong’s current acceptance rate was just 0.03 per cent, far away from those of developed countries, he said. “[The screening system is] still a work in progress,” said Barnes. “[Lawyers here who deal with these issues believe that] there are many more people who are deserving of protection but who are being denied.” “I think [the Sri Lankan's approval] will give a little bit of hope that it’s a viable system,” said Tony Read, chairman of the Refugee Concern Network, who explained that there had been a growing concern about the system’s effectiveness. “But there’s still a long way to go, because when you look at the statistics, it’s not very encouraging at all.” Hong Kong introduced a mechanism in 2004 to screen torture claims. The system was enhanced in 2009. The Immigration Department could not be reached for comment yesterday as an enquiry was placed after working hours.
The CAT winner at the March for Protection in October 2013
Joyce Man writes for The Atlantic - a liberal American magazine founded in 1857 in Boston, USA
Stuck in the territory in legal limbo, a number of political refugees have begun to speak out.
For eight years, Bawah ran. A minority in his West African country, he ran from the Bimoba tribe. He ran at night and in the rain, and when they fractured his left hand. Finally in 2005, fearing for his life, he ran much, much farther — to Hong Kong.
But now Bawah faces the opposite problem: His life has ground to a halt. First, he failed to get refugee status at the UN Refugee Agency and lost his appeal. Then, he applied to the Hong Kong government, asking them not to send him home for fear of torture, and lost. As he prepared to appeal, the system for screening claims like his was ruled unfair and went into hiatus. When it started again, he lost. In all, he has spent the same amount of time in limbo as he did running.
“I fled after moving within my country failed,” said the former teacher, 40, who asked to be identified by his nickname for fear of recrimination from the authorities. “In a fire, people flee through a door without knowing what will be on the other side. What I did not know was that I would fall into another fire.”
Here’s how Hong Kong’s system for vetting asylum seekers works or, some would say, doesn’t. The Refugee Convention does not apply to Hong Kong. Unlike many countries, it does not vet refugee claims, but refers them to the UN Refugee Agency. Since the UN enjoys diplomatic immunity, its decisions are not open to judicial scrutiny. The UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, however, does apply, so asylum seekers can make claims to the government under it. But this, critics say, has its own flaws.
Vision First, an organization that supports asylum seekers, estimates Hong Kong receives 2,000 of them per year. The UN agency says it receives about 300 applications for refugee status per month and approves, on average, 13.8 percent. Local Immigration Department figures show the territory received 1,174 torture claims last year and 88 so far this year, and allowed none.
But answers to some of Bawah’s frustrations could come soon, in a ruling from the city’s Court of Final Appeal in C, KMF and BF versus the Director of Immigration and Secretary for Security. The case, which concluded in early March and is awaiting judgment, challenges the government’s policy of referring refugee claims to the UN Refugee Agency. If successful, Vision First executive director Cosmo Beatson, says, it could be “a watershed moment”.
That’s not the only legal challenge against the system. In December, the court ruled that the government must consider whether an asylum seeker, if sent home, would be exposed to “cruel, inhuman or degrading treatment or punishment,” instead of only torture — which the local bar association called “highly significant.” A case arguing for the right to work for successful refugees and torture claimants will seek an appeal at the top court, and another one, on the right to an oral hearing in torture claims, might do the same.
“In the past few years, there’s been a real quake in system which has shaken the legal landscape and brought to the fore … the fact that refugees have rights,” Vision First executive director Cosmo Beatson said.
The outrage generated by what he calls the “zero recognition rate” is one factor prompting the legal challenges. Of 12,300 torture claims that the immigration department has received since 2004, when it introduced its first torture screening system, only one has been approved. That, Beatson says, does not jive with asylum recognition rates of 20 to 38 percent in liberal democracies.
“Is this system is so unfair that it’s not refined enough to find the genuine ones?” said human rights lawyer Mark Daly, who represented the plaintiffs in all these cases except the one ruled in December. “We’ve got young guys spending the best years of their lives in limbo. The system is failing them.”
The Security Bureau said it was “not apparent that there should be any correlation between the number of substantiated claims and the standard of fairness or effectiveness of the screening procedures.” Under the existing screening and statutory mechanism, it said, claimants are given “every reasonable opportunity” to make their case and can get publicly-funded legal assistance.
It said Hong Kong was small and had a dense population. Its unique situation, with its relative prosperity compared to the region and liberal visa regime, would make it vulnerable to abuse if the Refugee Convention were extended to it.
The bureau said it was studying the December ruling and seeking advice from the Department of Justice.
Simon Young, professor and director of the University of Hong Kong’s Centre for Comparative and Public law, said that while the territory was “a beacon,” especially in Asia, it was slow to recognize refugee rights, probably due to its experience with Vietnamese refugees. “Thus, when compared to other developed countries, Hong Kong is behind and has adopted asylum law protections in reverse order.” Other countries started with refugee protection, following by “complementary protection,” for those who are not found to be refugees but who still face a risk of other harm if sent home. Hong Kong started with the latter.
Advocates say they have yet to see results. “It’s like a hospital that sets up a flow chart on how to handle patients but everybody dies or gets discharged without getting healed,” Beatson said. “You can hire physicians and get X-Ray machines, but if nobody is healed, it’s failing.”
Joyce Man writes for South China Morning Post on 8 March 2013
The principle of not sending someone to a place where they may be persecuted has never been part of Hong Kong law, the government said yesterday. Benjamin Yu SC was speaking on behalf of the Immigration Department and the secretary for security at the Court of Final Appeal, where three African men were making a final bid to change how applications for refugee status are handled in the territory. Hong Kong is not a signatory of the United Nations Convention Relating to the Status of Refugees. The government does not take applications for refugee status, but instead refers them to the United Nations High Commissioner for Refugees.
When the UNHCR finds in favour of someone claiming refugee status, the government can allow them to stay pending resettlement. But this would be on humanitarian grounds, rather than out of any obligation. “Non-refoulement,” Yu said, referring to the principle, “has never been part of the common law in Hong Kong.” Vaughan Lowe QC, also for the government, said even if the court found non-refoulement was a rule in Hong Kong, it would be up to the government to decide how to meet the obligation. He said there was “no reason” why the UNHCR should not handle refugee claims in Hong Kong. The appellants – from the Democratic Republic of Congo and the Republic of Congo – had their applications for refugee status and subsequent appeals rejected by the UNHCR.
They filed applications for judicial review but lost those, as well as appeals against those decisions. They argue the UNHCR screening process is inadequate and that its decisions are not open to judicial scrutiny. Hong Kong, they say, must make its own decision regarding their claims in an informed, fair and accountable manner. Refugee support workers are waiting anxiously for the court’s ruling. “We are definitely watching it closely,” said Cosmo Beatson, executive director of refugee support group Vision First. “The case is vitally important.” The case was heard before Mr Justices Patrick Chan Siu-oi, Roberto Ribeiro, Robert Tang Ching, Kemal Bokhary and Anthony Mason.
Article 5. “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”