On 15 August 2014, Vision First secured the release of a female Nepali national (“Nepali lady”) who sought refuge in Hong Kong in February 2014 and was detained at Castle Peak Bay Immigration Centre (“CIC”). Despite holding a tourist visa to enter the city legally, she was refused entry, and instead was arrested and immediately transferred to CIC detention where she was arbitrarily detained for almost six months.
The Nepali lady had never previously visited Hong Kong and therefore the bases of her non-refoulement claims were unknown to Immigration when she was placed under administrative detention. It appears that Immigration ignored the Court of Final Appeal Judgment of Ghulam Rbani v Secretary for Justice (FACV 15 of 2013). This judgment holds Immigration duty bound to decide with reasonable diligence and expedition whether a decision on a non-refoulement claim can be reached within a reasonable time and, if not, to release claimants on recognizance.
The Notices on Detention handed to CIC detainees state: “Detention must be justified with sufficient reasons and for a period which is reasonable in all circumstances. Reasonable alternatives will be considered before detention is authorized. No one shall be subject to arbitrary detention. The power to detain must only be used for specific purposes for which it is authorized and its exercise must be justified on proper grounds.”
The Nepali lady’s monthly “Notices of Detention” stated the grounds for her detention:
- Your torture claim may be decided within a reasonable time in the foreseeable future;
- You may abscond;
- There are no justifying circumstances in favour of your release.
The notices inform that the decision was reached on the basis of the following factors:
- On preliminary vetting of available information, it appears that your claim may be one which can be decided within a reasonable time in the foreseeable future;
- You do not have fixed abode or close connections (e.g. family or friends) in Hong Kong to make it likely that you will be easily located if released.
Did Immigration have reasonable grounds to detain this refugee for almost half a year?
After one single screening interview, on 6 June 2014 the Immigration Department issued a Notice of Decision stating that the Maoist war was over; the violence her family suffered at the hands of members of the Maoists was “purely a criminal act”; her view that “the Nepali police will not take action against the Maoists is assessed to be not reliable”, and “it is not unreasonable for you to relocate to areas in your country to lower or negate the perceived risk upon your return to Nepal”. The Nepali lady justifiably did not accept this decision and on 20 June filed an appeal with the Torture Claims Appeal Board.
Did Immigration attempt to fast-track this claim inside detention and away from the public eye?
On 7 August 2014 documents relating to this case reached Vision First and one week later the Nepali lady was released from detention. Vision First is gravely concerned that for almost six months Immigration denied this helpless and highly vulnerable protection claimant her liberty and refused her requests to be released. Further, it is regrettable that the Duty Lawyer Service lawyer (name withheld), who advised the Nepali lady on her non-refoulement claim, did not apply by way of a writ of habeas corpus to secure her freedom.
The Immigration Department aims to meet the high standards of fairness required by the Unified Screening Mechanism, but ultimately its credibility stands or falls on implementation, not promise. When a highly vulnerable and uninformed newcomer such as the Nepali lady is summarily incarcerated and denied some of her constitutional rights, a dark shadow of distrust is cast upon the entire asylum process.
On 26 May 2014, Vision First had a meeting with the Hong Kong Bar Association to discuss concerns relating to refugees that appear to have been overlooked in the deployment of the Unified Screening Mechanism (USM). The Bar Association was informed that some failed torture claimants are detained in Castle Peak Bay Immigration Centre (CIC) without knowledge of, or opportunity to apply for USM protection in violation of the Hong Kong Bill of Rights (Art. 3) and Refugee Convention (Art. 33). Refugees are entitled to launch a USM claim even when detained pending removal or deportation after their torture claims were rejected.
An absence of information and application procedures inside CIC puts protection claimants at a considerable disadvantage when resisting pressure from Immigration officers to ‘voluntarily depart’ Hong Kong. In such a questionable legal black hole and in the absence of legal representation, it is suspected that unlawful administrative detention might adversely impact the rights and freedom of detained refugees, who should be released on recognizance pending determination of their USM claims.
Further, Vision First drew the Bar Association’s attention to other problems including, bail applications for refugees on remand, applications for judicial reviews of failed USM cases, jailing of refugees in prisons instead of CIC, unlawful administrative detention, magistracy bias against recognizance form holders, fair representation by duty lawyers, duty lawyers’ concerns to perform according to DLS expectations and the overall shortage of pro bono legal service.