The separate mechanisms used to screen torture and refugee claimants in Hong Kong should be combined to prevent abuse of the system and speed up processing of asylum seekers, the United Nations' refugee agency says.
The two mechanisms are the key reason why asylum seekers in Hong Kong need to wait a long time - usually three to five years - to be screened.
Although the government admits that torture and refugee claims often overlap - 44 per cent of 6,657 torture claimants since 2005 have also lodged refugee claims - it refuses to handle these claims.
This is because the city is not a signatory to the UN's Convention Relating to the Status of Refugees. Instead, refugee claimants apply to the local office of the UN High Commissioner for Refugees. However, Hong Kong has been a signatory to the UN Convention Against Torture since 1992, and it cannot expel, return or extradite a person to another state where there are substantial grounds for believing that the person would be in danger of being tortured.
Choosin Ngaotheppitak, the head of UNHCR's Hong Kong office, believes there is a need for a unified screening process. 'Basically the procedures are the same for torture claimants and asylum seekers [for refugee claims],' Ngaotheppitak said. 'When we have to do two processes it takes a lot of time. Secondly, the long process leaves cases open to abuse. So I think the best way is to combine the procedures.'
Ngaotheppitak suggested that Hong Kong gets 'directly involved in the determination of refugee status' - something the government is reluctant to do. Until five years ago the Director of Immigration had full discretion on whether to deport or refer to the UNHCR people claiming refugee status because of torture. That changed in 2004 when the Court of Final Appeal ruled that torture claims should be assessed by the secretary for security, which meant the government had to investigate such claims through 'fair procedures'.
However, the government has not put forward legislation on screening and related issues, creating a loophole in the system that has seen the number of new torture claims received by the Immigration Department soar from 186 in 2005 to 2,198 last year. And the number of new refugee claims received by UNHCR Hong Kong fell from 1,624 in 2007 to 735 last year. That trend reflects how asylum seekers are using torture claims to stay in the city.
Torture claimants are given assistance including accommodation, food and medical services through NGOs.
Annie Lin On-nei, community organiser of the Society for Community Organisation, which helps torture claimants in the city, said many had been in Hong Kong for five to six years.
Some claimants must 'wait for half a year for the first interview', Lin said, adding that they faced great stress, leading to mental health problems such as depression.
Meanwhile, the government hopes to implement a new screening mechanism for torture claims next month after the High Court ruled last December that denying claimants legal assistance was unlawful.
The Bar Association and the Law Society have urged the government to consider putting in place comprehensive legislation for both refugee status determination and torture claim screening. The government, however, is determined not to do so.
'Our unique situation, set against the backdrop of our relative economic prosperity in the region and our liberal visa regime, makes us vulnerable to possible abuses if the refugee convention was to be extended to Hong Kong,' a government spokesman said.
The delay in screening torture claimants is costly. In the last financial year the government spent HK$52.6 million on direct assistance for claimants, and the budget for the current financial year is HK$155 million. At the end of August, 4,234 people were receiving such assistance.
Only one torture claim had been substantiated since 2005, the government said. In October, there were 6,203 cases for screening or awaiting the outcome of screening.
Law Yuk-kai, director of the group Human Rights Monitor, said the government's 'unfounded fears and reluctance to solve the refugee problem' might relate to the experience with the Vietnamese boatpeople.
Asylum seekers would come to Hong Kong regardless of whether the government signed the Refugee Convention, Law said. 'One-stop screening should be provided to refugee claimants and torture claimants.'
The number of torture claimants has soared since 2005
There were 186 torture claimants in 2005, but last year there were: 2,198