Detention no breach of asylum pact, court told

PUBLISHED : Wednesday, 04 April, 2007, 12:00am
UPDATED : Wednesday, 04 April, 2007, 12:00am

Detaining asylum seekers who claim to be torture victims while these claims are being checked does not breach the UN Convention Against Torture, a judicial review hearing was told yesterday.

A breach of the convention would occur if the detainees were sent back to the countries where they claimed they had legitimate reasons to fear being tortured or abused, Anderson Chow Ka-ming SC, acting for the Director of Immigration, told the Court of First Instance yesterday.

The case was brought by four men, all granted anonymity by the court: two Sri Lankans, identified as AS and F, who had been detained for 23 months, a Togolese detainee, YA, who had been in custody since arriving at Chek Lap Kok in October, and an Algerian, known as A, who has been released on court bail.

Three are seeking a judicial review of the legality of their detention, while the fourth, YA, has petitioned for a writ of habeas corpus seeking his release.

Their barrister, Philip Dykes SC, likened the Immigration Ordinance to a cheap clothing shop where 'one size fits all'. The law has not been amended to take into account a 2004 Court of Final Appeal decision that under the UN Convention Against Torture the government must assess claims of torture before removing individuals to their countries of origin.

Mr Dykes told the court that 'temporary admission' to Hong Kong would be the simplest solution for the government to deal with such claimants.

Mr Chow said if the applicants had sought legal advice, they would have been informed there was an implicit understanding that they could not be removed to countries where they feared torture.

Mr Justice Michael Hartmann questioned how a lay person would know this was the case, since it could not be adduced from reading documents given to the applicants or a report issued to the Legislative Council that a written policy existed.