Hong Kong's new asylum system 'harder to exploit'

Department says it will plug loopholes in the screening process but the much-criticised 28-day limit for submitting evidence will stay

PUBLISHED : Monday, 09 September, 2013, 12:00am
UPDATED : Monday, 09 September, 2013, 6:45am

The Immigration Department claims a new screening system for asylum seekers due to take effect by the end of the year will plug loopholes in the process.

But a contentious 28-day deadline for submitting supporting documents - which one academic described as "not appropriate" under a brand-new system - would not be extended.

Details of the unified approach to assessing asylum claims have yet to be revealed but the department said it would be based on the existing torture claim framework.

Under the new system, in addition to assessing torture claims, the government would also be legally obliged to consider whether claimants faced persecution, and whether they may be subjected to cruel, inhumane or degrading treatment or punishment (CIDTP) when assessing applications for asylum status.

Assistant director of the department William Fung Pak-ho, who is in charge of torture claims, said combining the three types of asylum claims would make it harder to exploit the system.

Today, anyone seeking refuge in Hong Kong on the grounds that they faced torture if they were sent home must apply to the Immigration Department. But to claim asylum as a refugee, they must apply to the UN High Commissioner for Refugees.

Some applicants have in the past filed one claim at a time to the government or the UNHCR, and, when the applications were rejected, sought a judicial review to prolong their stay in the city.

"It usually takes claimants about 20 months on average, after they arrive in Hong Kong, to file their claims. So we can't rule out abuse of the screening system as it stands," Fung said.

He added that 80 per cent of the 12,634 claims the department had received since 2005 had been filed only after the claimants were arrested for offences such as overstaying or working illegally.

There are 3,784 applications pending. The department has rejected 3,644 torture claimants since December. Just 10 of those cases were substantiated, and two of the proven cases were successful on appeal.

A key criticism of the screening system is the 28-day period for applicants to file supporting documents to prove their claims.

Fung defended the decision to retain this rule under the new system. "We won't necessarily turn down an application straight away if a claimant cannot submit all the supporting documents within 28 days," he said.

He added that an application could include an explanation of which documents the claimant was waiting for, and when they could be expected - as long as it was within a reasonable time.

Other parts of the system will stay the same. At least one interview will be arranged within two months of an application being received to hear the grounds of the claim before assessment begins. And the Duty Lawyer Service will continue to provide free legal assistance to claimants.

Kelley Loper, director of the University of Hong Kong's Master of Laws in Human Rights, said flexibility in the deadline for supporting materials was "particularly important" under the new system. "It's not appropriate to adopt strict timelines used in other jurisdictions that have much more developed mechanisms and where decision-makers have more experience and knowledge of the standards that need to be applied," Loper said.

The Duty Lawyer Service was also hoping the 28-day deadline could be extended.

Human rights lawyer Mark Daly was concerned about whether all three claims would be statutory under the new system. At present, only torture claims are statutory. He said if persecution and CIDTP were not also made statutory it would strip the legislature of power to scrutinise future changes to the system.

The department said it was negotiating with the relevant parties to finalise operational details.