Time to do the right thing by torture claimants

PUBLISHED : Sunday, 07 December, 2008, 12:00am
UPDATED : Sunday, 07 December, 2008, 12:00am

When it comes to refugee claims, it seems clear the priority of the government is to make it as difficult for them to succeed as possible. But since a Court of Final Appeal judgment in 2004, officials can no longer leave all applicants to be processed by the cash-strapped United Nations High Commissioner for Refugees in Hong Kong. Those who claim they face torture if returned to their home countries must be screened by immigration officials.

However, it should surprise no one that the screening system put in place has been inadequate and opaque and has worked to ensure failure for practically every torture claimant. These aspects of the system have been observed by Court of First Instance judge John Saunders, who has struck the arrangements down, finding them to be unlawful and in violation of the international Convention Against Torture, to which Hong Kong is a signatory. The judge noted that not a single claim out of 200 so far assessed has succeeded. There are about 2,600 outstanding claims. Given the number of cases, the government should accept the judgment and revamp the system so that it meets international standards for fairness and transparency.

It may well be that the majority of torture claims are spurious. But the irreversible damage that can result from inadvertently sending a genuine claimant into the arms of torturers is too great a moral responsibility to bear. The Immigration Department says it is reviewing the judgment, but if history is any guide, the government will appeal - all the way to the top court if necessary.

The government's aversion to opening the floodgates to people claiming to be refugees is understandable. Hong Kong has had a long and unfortunate history of dealing with Vietnamese refugees over three decades. The experience has been costly and traumatic. Officials are, therefore, naturally anxious not to make Hong Kong appear a soft touch and turn our city into a magnet for applicants.

But, against the tradition of practically all advanced jurisdictions, Hong Kong does not have a general screening system in place. Now the High Court has rejected the system used specifically to screen torture claimants. The policy, now ruled illegal, appeared to be designed to ensure failure for applicants. Mr Justice Saunders noted that such claimants were not allowed legal representation, were denied legal aid and had no right to appeal against decisions made at a crucial oral hearing. He also said officials who make decisions in such cases had not been properly trained in assessing torture claims. The judge highlighted the arbitrary nature of the system, which does not give reasons for its findings. Furthermore, unless a claimant explicitly invokes the torture treaty by uttering certain 'magic words', such as 'convention' and 'torture', officials will not consider a claim. All in all, the judge portrayed an unfair system deliberately stacked against claimants.

Instead of fighting the court, it is time for officials to do the right thing. Not only should the government revamp its system for screening torture refugees, it should follow overseas examples by setting up a fair and transparent process to screen all refugee claimants.

It may be that such tasks cannot be safely entrusted to bureaucrats alone. A United Nations committee has proposed using legislation to set up a screening system. This should not be necessary if the government shows good faith in devising a fair and humane screening process. But so far, it has not done so.