HK refusal to deal with refugee cases to be tested in court

PUBLISHED : Monday, 10 December, 2007, 12:00am
UPDATED : Monday, 10 December, 2007, 12:00am

The High Court will begin hearing several cases this morning that advocates hope will force a change in the way Hong Kong deals with refugees.

Mr Justice Michael Hartmann in the Court of First Instance will begin hearing six applications for judicial review by people who claim Hong Kong, by outsourcing the assessment of refugee claims to the United Nations High Commissioner for Refugees (UNHCR), is in violation of customary international law.

Human rights lawyer Mark Daly, who is representing the six applicants, said the city could no longer, on the basis that is not a signatory to the 1951 UN Convention on the Status of Refugees, shirk its responsibility to properly assess refugee claims in a transparent and just manner.

He said the government, despite refusing to ratify the treaty, was still bound by broader principles of international law, of which non-refoulement - not sending a person back to a place where they may be persecuted - was one.

A fair, transparent and appealable assessment of refugee claims must necessarily be part of a territory's efforts to abide by the principle of non-refoulement, he said.

The current system - which saw the UNHCR being called in to make assessments and deal with appeals, often within minutes of each other - was a breach of Hong Kong's international obligations, he said. The UN body does not normally give reasons for its decisions and claimants do not have the option of appealing against decisions in the city's courts.

The mainland has been a signatory to the refugee convention since 1982 and has extended the convention to Macau. Among the 150 other countries that are signatories are developed nations like England, Canada, Australia, and others such as Iran, Democratic Republic of the Congo, Egypt and Sierra Leone.

'Hong Kong says it is a world city,' Mr Daly said, 'so it is time it took ownership of this issue.'

He hoped the judicial reviews would be the next step in forcing a better deal for refugees after a court case in 2005 forced the government to set up a system for assessing claims for asylum by people who alleged they faced torture if returned to their country of origin.

Mr Daly believes that system could easily and cheaply be expanded to cover all claims for refugee status. He noted that there were some question marks regarding how that scheme was being administered.

It was reported in May that of the 143 torture claims assessed by the Immigration Department in the three years since the judgment, not a single one had been accepted - a fact described by the UNHCR at the time as 'surprising'.

Mr Daly said rather than opening the floodgates to swarms of bogus refugee claimants, a properly administered, transparent assessment process would reduce the delay between application and decision and therefore reduce the time any fakes would spend in Hong Kong.

'Right now, Hong Kong is engaging in reactive government, instead of putting in place comprehensive legislation to prevent abuse,' he said.