Latest Development in Hong Kong Non-Refoulement Policies

Guest post by Brian Chan, research assistant in the University of Hong Kong and a Juris Doctor Candidate. Please see recent blog posts by Francesco Vecchio and Cosmo Beatson on Vision First and Protests in Hong Kong and Brian Chan on Edward Snowden and Hong Kong's asylum policy  for additional reading on this topic. 

The United Nations Committee Against Torture recommended that the Hong Kong government should consider adopting a legal regime with a view to establishing a comprehensive and effective procedure to examine thoroughly the merits of each torture claim when determining the applicability of its obligations under Article 3 of CAT (the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment) (para 9 of the Background brief prepared by the Legislative Council Secretariat in a meeting of the Panel on Security).

The current position in Hong Kong is that in order to raise non-refoulement, claimants can make one or a combination of the following:

1. CAT claims (in which the government shall not 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 torture),
2. Hong Kong Bill of Rights claims (which gives effect to Article 7 of the International Covenant on Civil and Political Rights, protecting individuals from being subjected to torture or cruel, inhuman or degrading treatment or punishment), and
3. Persecution claims with reference to Article 33 of the Refugee Convention (in which the Director of Immigration gives weight to the assessment of the United Nations High Commissioner for Refugees (UNHCR) in considering removal or deportation on humanitarian grounds).

Given the stringent local welfare and employment policy, claimants are not allowed to work during their stay (MA v Director of Immigration), and they live on tight financial assistance. According to Ramsden and Marsh (2013 forthcoming), the Bills Committee on Immigration (Amendment) Bill 2011 realised that unsuccessful claimants under one of the procedure are able to have “two bites at the cherry” (e.g. both under the Torture and Refugee Convention).  Hartmann J in C v Director of Immigration even notices that “around 44% of asylum seekers have made parallel claims”.  Some claimants even take advantage of the long processing time under various procedures to work illegally in Hong Kong.

The above paragraphs explain why a Unified Screening Mechanism (USM) has long been urged and in fact discussed in early July in a Panel on Security meeting in the Legislature. Under the USM, it is proposed that claimants will complete a unified claim form to provide all grounds of the non-refoulement claim or all available documentary evidence.  It is also expected that decision makers under the USM are to be trained by qualified and experienced authorities such as UNHCR and the United Kingdom Border Agency.

It is wrong to assume such a proposal has no immediate impacts to current claimants. On 17 July, the High Court of Hong Kong postponed 11 cases in which unsuccessful claimants apply for judicial review over government’s rejection of their non-refoulement application.  Au J took into account that the new mechanism may be enforced early next year.  These 11 cases against the Director of Immigration is therefore adjourned to late March 2014 (case number: HCAL8,10,20,22,23,43,47,57,62,72,77,88,90,91,95,101/2013).

The actual effects of USM are yet to be known, although they are anticipated to reduce overlapping and inefficiency brought by parallel claims.  What is certain at the present transitional phase is that an adjournment would result in a further delay, increasing the likelihood of potential human rights infringement by the Hong Kong government.  As put forward by the claimant in MA v Director of Immigration, the prolonged period of time in waiting without permission to work may itself amount to a cruel, inhumane, and degrading treatment, especially to claimants with little prospect of resettlement or departure in foreseeable future.  The International Covenant on Economic, Social and Cultural Rights (e.g. right to employment) of the claimants may also be violated.

Acknowledgements: Brian Chan benefited from the International Human Rights Law Programme during his stay at New College, Oxford in 2011.

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