Ruling may bring freedom for refugees
No clear policy for jailing asylum and torture claimants, court finds
Almost four hundred refugee and torture claimants jailed in Hong Kong may have to be released after a court ruled yesterday that the lack of a clear policy on holding asylum seekers makes their detention unlawful.
The Court of Appeal refused a government request to delay the effect of its ruling until a petition to the Court of Final Appeal.
That raises the possibility of a flood of asylum seekers calling for their immediate release from detention centres. The judgment also requires the government to put in place a clear and accessible policy setting out the grounds for detaining claimants, if holding them is to be lawful.
Lawyer Mark Daly said detainees must file court applications demanding their freedom in order to benefit from the ruling.
'If they can get their matters to court, there's a good chance ... they should be released immediately,' he said. 'That's a big 'if'.'
Mr Daly hailed the decision as a victory for human rights advocates fighting to change the way Hong Kong deals with thousands of torture and refugee claimants, most of whom are not detained.
'We've been saying for years that there is a lack of a coherent policy,' he said. 'This is a major success for us. It says the government's policy [for detaining claimants] is unlawful.'
The judges, in their ruling, said: 'The existence of a clear and lawful policy ensures that the director [of immigration], when making his decision whether or not to detain, would have had all the relevant circumstances under consideration, and that the decision to detain would not be arbitrary. [That] would enable an applicant to know how best to ensure he is not detained.'
Government counsel Anderson Chow told the court 387 detainees could be affected by the ruling. Of these, 139 are torture claimants. The rest are fighting removal orders on the grounds that they face persecution in their home countries.
The government had been working on a new policy that should satisfy the appeal court's concerns, Mr Chow said.
An Immigration Department spokeswoman declined to discuss the ruling. 'We're going to study the judgment carefully and contact the Department of Justice before deciding on the way forward,' she said. 'We will act in accordance with the court's directives.'
At issue is the clarity and accessibility of rules for jailing claimants fighting orders for their removal from Hong Kong. While the detentions are legal, there must be a coherent policy in place to explain why a person is being held, Mr Justice Robert Tang Ching, Mr Justice Andrew Cheung Kui-nung and Mr Justice Aarif Barma said in their written ruling.
No such policy existed and that created arbitrary decisions that did not meet standards required under the Bill of Rights, the judges said.
The court questioned whether the current policy was accessible to detainees. Mr Chow said the detention policy was contained in a paragraph of a paper supplied to the Legislative Council and which could be accessed via the Legco website.
The court said it was not prepared to assume this was a sufficient statement of policy, and noted that the paper did not exist when three of the four appellants were incarcerated.
The case that led to yesterday's decision concerns four unidentified claimants from Algeria, Sri Lanka and West Africa, who were ordered to leave Hong Kong in 2005 and 2006.