I have previously written on this blog about how a landmark judgement on international refugee law was handed down by the Hong Kong Court of Final Appeal in March which will see the foundation of a unified, government led protection screening mechanism implemented in Hong Kong. As an organisation UNHCR has always stated that refugee status determination is a responsibility that should primarily be undertaken by governments. In certain countries where a government determination process does not exist, UNHCR carries out refugee status determination pursuant to its mandate to provide international protection. This has been the case in Hong Kong, where UNHCR has been conducting refugee status determination for a number of years as Hong Kong has not had the Refugee Convention extended to it by China.
On 25 March 2013, the Hong Kong Court of Final Appeal delivered a judgement in C & others v Director of Immigration and the Secretary for Security (C) which found that the Director of Immigration has a duty to conduct his own independent inquiry of refugee claims in order to legally exercise his discretionary powers of removal from Hong Kong. The practical implication of this decision was to require the Government to independently screen refugee claims in order to prevent refoulement, although not signatories to the Convention.
The Convention Against Torture (CAT) has been extended to Hong Kong since 1992. Article 3(1) of that Convention provides that “no State Party shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to tortur”. Since Hong Kong has had CAT extended to it, the Government has been subject to a plethora of legal challenges to its implementation due to systematic deficiencies in the application process to claimants. The deficiencies are most easily illustrated by the fact that since the Convention was extended in 1992 there have been 12555 Torture claims and as uo to 30 June 2013 only 9 recognised claimants, 8 of whom have been recognised in the past year. In June 2004, the Court of Final Appeal ruled in Sakthevel Prabakar v. Secretary for Security that given the momentous importance of a determination on CAT claims to claimants that high standards of fairness must be demanded in the making of such a determination. An administrative screening mechanism for CAT claims was implemented thereafter but in December 2009, the administrative screening mechanism was further enhanced in light of another judicial review case FB & Ors v. Director of Immigration and Secretary for Security (HCAL 51, 105-107 & 125-126/2007). Legislative provisions underpinning the enhanced administrative mechanism have commenced operation since December 2012 and have resulted in an increased number of successful applicants as illustrated above.
On 2 July 2013, before the Panel of Security of the Legislative Council, the Hong Kong Government announced its plan to introduce a Unified Screening Mechanism, or USM, to assess claims for non-refoulement protection. Such claims are those lodged by persons not having the right to enter and remain in Hong Kong, on the basis that removing them to another country would expose them to a risk of:
(a) Torture as defined under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)
(b) Torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights; and/or
(c) Persecution with reference to the principle of non-refoulement under Article 33 of the 1951 Convention Relating to the Status of Refugees.
The Role of UNHCR in the New System
UNHCR has stated that it will cease conducting refugee status determination in Hong Kong after the USM has launched. It is assumed by the author that those who have a pending asylum claim registered with UNHCR will then have their cases handled by the Hong Kong Immigration Department. The same argument could be made for those whose asylum claims have been previously rejected by UNHCR. Last Friday on 16 August 2013 UNHCR proceeded to hand out a briefing document to those who were scheduled on that date for their ‘slip exchange.’ Those who have an active case with UNHCR in Hong Kong obtain a piece of paper on each visit which states the next time and date they are to attend the office and this is called the slip exchange. The briefing document stated the following:
As required by the Hong Kong Court of Final Appeal, the Hong Kong Government will soon begin screening refugee claims in Hong Kong. The Government has indicated that this will begin before the end of 2013, but has not yet announced the exact date. Once the Government begins screening refugee claims, UNHCR will cease conducting refugee status determination in Hong Kong, and you will be required to approach the Hong Kong Immigration Department to apply for protection.
In the meantime, UNHCR screening of refugee claims will slow down significantly, and it is unlikely that we will reach a decision on your case. Although UNHCR’s role in Hong Kong will be changing, our office in Hong Kong is not closing, and we will continue to seek durable solutions for refugees. We understand the hardship that asylum seekers face in Hong Kong, and we ask for your patience and understanding in this time of transition. For more information about the transition, please call 2780 9271 to make an appointment for an information session, or visit our website at:
A number of initial points must be made about this briefing document. First, it appears to have been mostly given to asylum seekers in English which is not a language the vast majority those seeking asylum speak. Second, on slip exchange day asylum seekers do not attend UNHCR with their lawyers and as such even if many had some understanding of English, the content of the document is difficult to comprehend for a person not legally trained. Third, this document was given on a Friday and the phone number asylum seekers were asked to call was not operative during the weekend nor would many have had access to their own lawyers over the weekend period to explain the document. Fourth, the web site that the briefing document refers to is still not active and contains no data of relevance. At the time of writing it simply stated “The information of Unified Screening Mechanism will be uploaded soon.” Fifth, the briefing document is vague and gives no idea as to who could potentially still have their cases assessed by UNHCR and when asylum seekers will be provided with this knowledge. Finally those who ask for an individual meeting in regards this cases appear to be told that they can only use the telephone number and website at present for information. This has created an atmosphere of fear and apprehension among those within the system, many of whom have been in the initial UNHCR process for a number of years and especially among those who do not have legal representation.
Given the manner in which CAT claimants have already been asked to waive confidentiality of their UNHCR documentation for their CAT claims, the author believes that for cases currently or previously assessed in the Hong Kong UNHCR system, the Immigration Department will seek to obtain from UNHCR relevant case information for its own assessment under the USM. This is an interesting development, as of particular note in the C case was that the Appellants complained that the screening process conducted by the UNHCR was inadequate. These inadequacies range from problematic interviews, sub-standard interpretation, insufficient access to evidence or reasoning for decisions in some jurisdictions, the lack of an independent appeal, and the lack of the ability of lawyers or caseworkers in some jurisdictions, to attend interviews, and in others, to intervene, except on very limited grounds. In its judgment the Court of Final Appeal, opted for a similar legal interpretation which had paved the way initially for a government-led torture screening mechanism. Li CJ stated that:
“43. The question in this appeal concerns the standards of fairness that must be observed by the Secretary in determining in accordance with the policy the potential deportee’s claim that he would be subjected to torture if returned to the country concerned. One is concerned with procedural fairness and there is of course no universal set of standards which are applicable to all situations. What are the appropriate standards of fairness depends on an examination of all aspects relating to the decision in question, including its context and its nature and subject matter: R v Home Secretary, ex p Doody  1 AC 531 at p.560D-G.
44. Here, the context is the exercise of the power to deport. The determination of the potential deportee’s torture claim by the Secretary in accordance with the policy is plainly one of momentous importance to the individual concerned. To him, life and limb are in jeopardy and his fundamental human right not to be subjected to torture is involved. Accordingly, high standards of fairness must be demanded in the making of such a determination.”
In addition to that, it was held that it was for the Secretary to assess the materials and to come to an independent judgment:
“ … having regard to the gravity of what is at stake, the courts will on judicial review subject the Secretary’s determination to rigorous examination and anxious scrutiny to ensure that the required high standards of fairness have been met. R v Home Secretary, ex p Bugdaycay ] 1 AC 514 at p.531 E-G.”
Given that the C decision essentially held that Director of Immigration has a duty to conduct his own independent inquiry of refugee claims it is difficult to see how an independent inquiry could be conducted by the Director of Immigration using documentation collected under UNHCR’s inadequate RSD process. In addition, given that UNHCR determinations are immune from judicial scrutiny, the documentation collected under that process surely does not meet “the standard of fairness” required and we will continue to see a range of Judicial reviews challenging the new system should any documentation be handed over from UNHCR to the Immigration Department.
The Government has indicated that the USM should be functional before the end of 2013. In the interim, UNHCR appear to be continuing to register applicants; however as noted in their briefing document the adjudication of cases will be suspended for the majority of applicants. It is unknown at present what exact role UNHCR will play in any future government led RSD process. Given that the judgement only deals with the issue of non-refoulment and not resettlement (or the rights associated with) it is assumed that UNHCR will have to remain in the jurisdiction in some capacity. The judgment of C noted UNHCR’s stated role to continue to assist in seeking durable solutions for refugees, specifically through resettlement. As such, it is likely that UNHCR will continue to seek durable solutions for persons of concern to UNHCR.
Where to now: A Unified Protection System
It is understood that negotiations are currently on-going between interested parties as to what shape the system will take. There are many potential benefits to such a process both to asylum seekers and the government in terms of costs effectiveness and expediency. Under the current system in addition to applying under the UNHCR RSD system many asylum seekers also seek relief under CAT system. This dual system adds to the length of time it takes for a client to be processed. For asylum seekers, many of whom have undergone terrible trauma before they arrived in Hong Kong, it means years of living in uncertainty. For the government, it means potential for abuse by those who are not genuinely seeking asylum as they can linger in the system for a number of years. It is argued that such a protection system should include:
- A statutory unified protection procedure encompassing CAT, CIDTP and Refugee non-refoulement claims
- An independent appeals process
- Clear, good-quality and transparent decision-making by qualified persons
- Access to legal representation by lawyers who are adequately trained in international human rights and refugee law
- Access to humane living conditions
- Care for unaccompanied minors
- Special consideration for the needs of vulnerable individuals and groups
According to the Security Bureau’s paper in June, the government will base the new system on the current statutory CAT mechanism but it will not necessarily be statutorily based. In terms of support from the legal community, the Hong Kong Law Society and Bar Association have long called on the HKSAR Administration to put in place a comprehensive legislative framework to ensure high standards of fairness for screening claimants under the Convention Against Torture and for determination of the refugee status of asylum seekers since they published a joint position paper on the ‘Framework for Convention Against Torture Claimants and Asylum Seekers’ in 2009. This position was cemented in statements by the Bar Association and the Law Society in the aftermath of Ubamaka Edward Wilson v. The Secretary for Security published in February 2013 and by a paper submitted by the Law Society before the Panel of Security in July 2013. In addition the Hong Kong Refugee Advice Centre and other NGOs working on behalf of refugees in Hong Kong have long advocated for the creation of a single, government led unified mechanism to process both refugee status determination and CAT claims and have made submissions as regards the USM in that regards.
If a unified system is put in place it must be noted that questions have been raised about the adequacy of the existing government led screening system. While the government has rejected that they run an ‘effective zero-per-cent recognition rate’ it must again be noted that out of 12555 torture claims received by the government since the Convention Against Torture was applied in Hong Kong in 1992, only nine have ever been accepted. Former UN Special rapporteur on Torture Manfred Nowak recently remarked on the startlingly low recognition rate in a country which receives a high percentage of torture claims from countries like Sri Lanka. All nine claimants have been since the implementation of an enhanced mechanism implemented in December 2009. In its discussion paper before the Panel on Security of the LegCo in respect of screening of non-refoulement claims, it was stated that
“To ensure that decision-makers under the USM have proper understanding of the expanded scope of the screening mechanism, relevant and updated international and local jurisprudence, training to be conducted by qualified and experienced authorities (e.g. the UNHCR, the United Kingdom Border Agency, medical experts, etc.) will be arranged for them before the USM commences operation.”
This can only be a positive move forward by the Immigration Department given the standards currently in place, but it is difficult to see how this will all be implemented before the end of 2013. In order to reform the system, the Government should first review the adequacy of the current system for determining CAT claims. Hong Kong now has an opportunity to achieve a reform of the protection system which is human rights centred and which upholds the rule of law. It is argued that a protection system that embodies the principles of efficiency, justice and transparency as well as representing value for money would ensure that Hong Kong met its human rights obligations while protecting some of the most vulnerable in society.