Should Hong Kong enact the 1951 Refugee Convention?
By: Sheldon Cooper
Tags: Refugee Law, Legislation, Refugees, Hong Kong

A comparative analysis of the pros and cons

immigration

On 1 July 1997, Hong Kong became a Special Administrative Region (SAR) of the People’s Republic of China after the handover of sovereignty from British to Chinese rule. Hong Kong is governed by the Basic Law and it warrants the city a high degree of autonomy in domains including maintaining an independent judiciary (Art 2 Basic Law, 1997).

Despite this, the SAR has refused to sign the 1951 United Nations Convention Relating to the Status of Refugees (“Refugee Convention” or “Convention”), even though China is signatory to it.

The Refugee Convention is a legal mechanism that screens the non-refoulement claims of claimants, determines the definition of “refugee”, screens refugee statuses, governs the rights of refugees to substantial protection, and establishes the signatory government’s legal obligations (United Nations High Commission for Refugees, 2011).

While this may not necessarily render refugees disadvantaged, granted that there are other legal mechanisms in place to provide protection, legitimate complaints raised by refugees have increased throughout the years because of the lack thereof (C v. Director of Immigration, 2008).

As a result, this blogs aims to analyse the current systems for refugees, the significance of the Convention and problems with implementing it.

A review of current systems

In the absence of the Convention, the right to non-refoulement through the Unified Screening Mechanism (“USM”) and judicial review are recourse to the law that refugees can exercise.

“Claimants aggrieved by the Department’s decision may lodge an appeal to be considered by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office, an independent statutory body.” (Retrieved from Immigration Department)

Since 1979, Hong Kong has experienced waves of refugees and mainly relied on the UN High Commissioner for Refugees Screening Process (UNHCR), a third-party organisation, to handle refugee cases (UNHCR, 2007).

In C. and Others v. Director of Immigration (2008), the court found that the Director of Immigration (“DOI”) did not fulfill its duty to determine whether a refugee faces a danger if refouled because it delegated the responsibility to the UNHCR to determine the legitimacy of the claimant’s claims which avoided a screening process and a decision that would have been under the scrutiny of the judiciary (Rice, 2011).

After years of effort from the legal society — from journal publications to open letters — exactly 5 years later on 25 March 2013, the Court of Final Appeal (“CFA”) in C & Ors v Director of Immigration (2011) ruled that the DOI has a legal duty to determine, with due diligence, the claimant’s fear of persecution before being refouled in order to reach high standards of fairness. Thus, on 3 March 2014, the USM was inaugurated.

Claimants process their claims for non-refoulement protection and are screened by the DOI then, if unsuccessful, are able to process an appeal of their decision through the Torture Claims Appeal Board (“TCAB”).

Alternatively, a claimant can appear before the court through judicial review to challenge the decisions made by the DOI on grounds of illegality, irrationality, or procedural impropriety (Legislative Council Secretariat, 2017). Judicial review has played a significant role for refugees who have been indefinitely detained and pursued to challenge this decision even before the establishment of USM (Barnes, & Daly, 2008).

However, in spite of the long awaited creation of the USM, it brings to light a few issues:

Decisions held under the Unified Screening Mechanism are not publicly available

Currently, the TCAB withholds their decisions from the public and is only viewable by the DOI. This renders the Appellant (i.e. the refugee) disadvantaged as the DOI as the Respondent has information and can cite past decisions or determinants examined by the Board to their case perusal (Daly, 2014).

“The Legislative Council Subcommittee to Follow Up Issues Relating to the Unified Screening Mechanism for Non-refoulement Claims conducted a visit to Castle Peak Bay Immigration Centre on 19 July 2018 to better understand its facilities and operation.” (Retrieved from Legislative Council)

In comparable jurisdictions like England, judiciary decisions concerning refugees are made public, with certain omissions of information to safeguard the identity of the claimant, to increase transparency when exercising the power to deport, promote consistency in the application of legal principles when determining non-refoulement claims, and encourages decision makers to reach a high standard of procedural fairness when screening refugees through providing substantial reasons of their decision (UNHCR, 2010).

Inadequate transparency in medical procedures

Since the medical procedure, the training afforded to medical practitioners, and the capacity of the Hospital Authority to accommodate refugees has a linear correlation to the echelon of medical reports issued and subsequently, to the Appellant’s case. It is central for the Appellant, if not the general public, to be informed on the medical proceedings and examiner requested by the DOI in order to report medical maltreatment or prevent the development of ramifications, especially since examined claimants may well have suffered from torture.

Justice Centre is a non-profit organisation in Hong Kong that provides “direct legal and psychosocial assistance for all people claiming asylum in Hong Kong under the USM” (Retrieved from Justice Centre)

Currently, this information involving the preparatory measures, agreements or identities among the medical society are not provided to the public and the claimant/ appellant.

Concerns on lack of fair implementation of the mechanism

The USM was implemented by the Security Bureau without the second opinion of major public bodies like the Hong Kong Bar Association (the “Bar”), the Law Society of Hong Kong (the “Law Society”), and other legal professionals. This has raised concerns from the Bar as stated in their submission that it was a “highly unsatisfactory situation” since it leaves proponents of the scheme unadvised and possibly contain unidentified complications (Hong Kong Bar Association, 2014).

Pictured: A Human Rights Seminar Series of a Panel Discussion on Hong Kong’s Unified Screening Mechanism with key legal figures in Hong Kong (from left to right: Kelley Loper and Mark Daly — scholars whom I’ve cited in this blog) [Retrieved from The University of Hong Kong]

Ultimately, after its implementation, proposals for amendments in the Scheme were submitted by the Bar since procedural deficiencies were spotted. One of them being the 28-day time limit for claimants to return the completed Torture Claim Form to process their claims which was seen as “impractical and harsh” (Hong Kong Bar Association, 2018). This evidently suggests that the Administration intends on improving the screening process to be more efficient. This has lapsed in other areas: see in Villarico v TCAB and DOI (2018), Villarcio, the claimant, made an application for postponement in the TCAB hearing due to her pregnancy. Her application was denied and because of this, she went through the hearing while also going into labour and was at the brink of giving birth in court.

While efficiency may be beneficial to both refugees and DOI — in ideal circumstances, refugees spend less time in detention centres while waiting for their claims to be processed and equally, it relieves the system for the DOI — however this does not provide sufficient reason to do so at the expense of fairness whether in exceptional cases or not.

Why the refugee convention is needed

The status of claimants as a refugee remains undeclared in spite of their claims for non-refoulement protection being ratified by the DOI (Hong Kong Bar Association, 2018). After a substantiated persecution risk claim, the Administration would pass the case to the UNHCR in which the UNHCR has the power to decide the refugee status of the claimant or to determine an arrangement.

Castle Peak Bay Immigration Centre is where refugees are detained while waiting for their claims to be processed (Retrieved from Legislative Council)

Currently, there is no clear provision on the agreement between the Administration and the UNHCR in the decision-making process of recognising the refugee status of a claimant whose persecution risk claim was ratified. There are multiple questions that come to light: is the UNHCR legally required to determine the status of all substantiated claimants? If not, then is there an organisation that serves with the same purpose? What does the successful persecution risk claim signify if the claimant is not identified as a refugee? Will it become null?

The aforementioned issues that arise under the new establishment of the USM and along with a whole slew of others that have gone unmentioned highlights the procedural deficiencies and legal challenges under the USM and other arrangements, if not many, for claimants and refugees.

Because of this, the single screening mechanism and decision-making process under the Refugee Convention holds appeal. Under the Convention, a claimant can be straightly recognised either as (1) a torture victim, (2) a refugee or (3) neither a torture victim nor a refugee. The claimant can be recognised as a victim of torture and a refugee because “the apprehended torture amounts to persecution” and equally, “it is possible for a torture victim not to be a refugee and vice versa” (The Law Society of Hong Kong and The Hong Kong Bar Association, 2011).

The Convention is a more structured and transparent mechanism that would establish a more fair, accountable, and efficient screening determination procedure for refugees if implemented (U.N. Comm. Against Torture, Considerations of Reps, 2008). Doing so would limit the legal challenges that eventually lead to ill-fated decisions that promote exploitation and abuse against refugees revealed in the many single assessment schemes (McAdam, 2007).

Since many common law jurisdictions like England, Australia and Canada are signatory to the Refugee Convention, the interpretation, application and the context in which each decision is made regarding persecution claims can to an extent act as a guidance for legal professionals in Hong Kong since refugee law remains to be a developing area (Millbank, 2000).

Moreover, Hong Kong jurisprudence towards refugee rights highlights the role of and the critical development of international refugee law in Asia (Hathaway, 2005).

Problems faced with implementing the Convention

One of the major issues raised from critiques is that the Convention will encourage more waves of refugees to enter however having a structured mechanism may not necessarily lead to an increase of substantiation rate because since the 1990s, signatory EU countries have had a substantiation rate of about 10–15%, compared to Australia’s 30% (Millbank, 2000). While it takes more than a single international mechanism to deter fluxes of illegal immigrants like having limited access to welfare packages, no access to job opportunities and more, Hong Kong’s substantiation rate (0.8%) was one of the world’s lowest as of June 2019 without the implementation of Convention (Immigration Department, 2019). The likeness of the SAR repositioning its attitude to refugee migration and political priorities perhaps may well be minimal even after a policy change.