Congolese torture claimant takes his fight to High Court

PUBLISHED : Saturday, 23 February, 2008, 12:00am
UPDATED : Saturday, 23 February, 2008, 12:00am

A refugee from Congo yesterday asked the High Court to quash a government's decision to prosecute him for illegal entry before his torture claim application was concluded.

Denis Chang SC, representing the applicant in the judicial review before Mr Justice Michael Hartmann, argued that the government had acted irrationally and had breached the 'non-prosecution' principle enshrined in Article 31 of the Refugee Convention.

The article prohibits signatory states from penalising refugees coming from a territory where their life or freedom was threatened for illegal entry or presence, provided they show good cause for doing so and present themselves without delay to the authorities.

Although it does not extend to Hong Kong, the barrister said that the principle 'assumed a particular importance in the absence of a complete legal framework' to protect asylum seekers and torture claimants in the city.

The Congolese applicant claimed he was jailed in his country in 2002, but escaped and arrived in Hong Kong in January 2005 using a false passport. He immediately applied to the Office of the UN High Commissioner for Refugees for asylum-seeker status, but was turned down in April 2005. He was charged with false representation and using a false travel document in September the same year. A month later, he filed for torture-claimant status to the UNHCR.

The magistrate's court set January 3 this year as his trial date after repeatedly adjourning the case, pending the result of his torture claim. On January 2 he initiated a judicial review on the authority's decision to prosecute him.

His torture claim was dismissed on January 18, but his lawyers argued that his application had not yet concluded since he had appealed against the UNHCR's decision.

Mark Daly of solicitors' firm Barnes & Daly, for the applicant, said the city's prosecution policy showed it lacked a coherent policy for asylum seekers and torture claimants.

Gerard McCoy SC, for the Secretary for Justice, questioned why the applicant launched the legal challenge only on the eve of his trial. He also asked why he had not applied for torture-claimant status until after he was charged. He pointed out that the Congolese's claims for protection from the UNHCR had been consistently turned down.

The hearing continues.