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New get-tough policy on refugee appeals against deportation orders comes into force in Hong Kong

South China Morning Post logo South China Morning Post 06/12/2022 Ng Kang-chung
  • 'Updated removal policy' introduced on Wednesday without fanfare; government says it will end abuse of appeals system
  • But human rights lawyers warn of 'potential violations' of right not to be returned to a jurisdiction where refugees could face harm

Refugees who flee their homelands for sanctuary in Hong Kong will face repatriation after their first bid to apply for a legal challenge to the government's screening results is rejected under a new, little-publicised, government policy.

Officials said the "updated removal policy", which will come into force on Wednesday, would prevent claimants abusing legal procedures to prolong their stay in Hong Kong, despite having their applications rejected.

Some lawmakers welcomed the move, but human rights lawyers warned of potential violations of claimants' right not to be returned to somewhere they could face persecution - known as non-refoulement - and called for public consultation before the change was implemented.

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"We express our deep disappointment in the lack of public consultation in the whole policymaking process. The updated policy, if implemented, would have a devastating impact on non-refoulement claimants in Hong Kong," law firm Daly & Associates, specialists in human rights and asylum laws, said.

Under Secretary for Security Michael Cheuk. Photo: Handout © Provided by South China Morning Post Under Secretary for Security Michael Cheuk. Photo: Handout

"Yet the voices of the marginalised groups are unheard. Nor did the Security Bureau seek the views and advice from non-governmental organisations, civil society groups, academics, United Nations High Commissioner for Refugees Hong Kong or the legal profession."

Undersecretary for Security Michael Cheuk Hau-yip said at Tuesday's Legislative Council security panel meeting about 14,900 claimants were in Hong Kong at the end of October.

"One key reason affecting the expeditious removal of unsubstantiated claimants is that most of them would apply for judicial review as a tactic to prolong their illegal stay in Hong Kong," he told legislators.

Cheuk highlighted court figures from October 2017 to October this year that showed about 12,600, 3,000, and 1,700 judicial review applications and related appeals were filed to the Court of First Instance, Court of Appeal, and Court of Final Appeal respectively.

Non-refoulement claim-related judicial review cases accounted for more than 90 per cent of judicial review cases received by the courts.

Among the judicial review applications filed between 2017 and 2021, by the end of this January only about 3.1 per cent of cases were granted leave to appeal by the Court of First Instance and only 2.5 per cent of appeals were allowed by the Court of Appeal.

All applications to the Court of Final Appeal were rejected, the Security Bureau said.

Faster screening of asylum seekers in Hong Kong, but 2,600 appeals still pending

"Under the updated removal policy, the Immigration Department may proceed with the removal of an unsubstantiated claimant once the court dismisses his application for judicial review," Cheuk said.

"It will also apply to those whose judicial review proceedings are dismissed by the court before and after its implementation."

Cheuk stressed the government would ensure the right balance between protection of claimants' rights under the Hong Kong Bill of Rights and the maintenance of effective immigration control and the public interest.

He said the government had plans to convert the Nei Kwu Correctional Institution on Hei Ling Chau island into a detention centre for claimants.

Cheuk explained the government also wanted to change the law to allow officials to send badly-behaved detainees to solitary confinement for up to 28 days, an increase from the maximum of seven days allowed at present.

But Daly & Associates questioned what would be done if someone was deported from Hong Kong, but later won an appeal to a higher court.

"If a claimant's subsequent appeal to the higher court(s) is successful after he is removed from Hong Kong, how could he continue pursuing his claim?" the legal firm asked.

"If the higher court allows a claimant's appeal and remits his non-refoulement claim to the Torture Claims Appeal Board for fresh determination, how could the government enforce the court's relief if the claimant is already removed from Hong Kong?"

7 in 10 refugees in Hong Kong expect food to run out in a week: survey

The law firm also said the government should release immigration detainees instead of increasing the capacity of detention centres.

Most lawmakers at the Legco security panel meeting welcomed the removal policy.

"Taxpayers have spent over HK$8.5 billion (US$1.09 billion) in the past 10 years on handling non-refoulement claimants. Many of them just abused the judicial review system to keep staying in Hong Kong," Joephy Chan Wing-yan, of the Hong Kong Federation of Trade Unions, said.

Elizabeth Quat, of the Democratic Alliance for Betterment and Progress of Hong Kong, blamed "fake refugees" who stayed in the city for years, for "gang problems" and other disorder.

Research by the Legislative Council secretariat in August found the Hong Kong government had spent HK$1.07 billion in the 2021-22 financial year to deal with non-refoulement claimants, up from HK$393 million in 2012-13.

More than half of the cash went on food, rent payments and utility charges for the claimants.

About 30 per cent was spent on screening and handling appeals and legal aid accounted for more than 10 per cent.

Hong Kong is not a signatory to the United Nations Refugee Convention and does not offer asylum to refugees.

But it has a non-refoulement policy because the city is signed up to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.

If someone claims they could suffer persecution elsewhere, no signatory to the convention can repatriate.

Claimants can take their case to a Torture Claims Appeal Board if they are not satisfied with the results of the Immigration Department's screening.

If an appeal is not successful, they can still ask for judicial review at the Court of First Instance.

If that is refused, the ruling can be reviewed by the Court of Appeal and, if still unsuccessful, to the Court of Final Appeal as the last resort.

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This article originally appeared on the South China Morning Post (www.scmp.com), the leading news media reporting on China and Asia.

Copyright (c) 2022. South China Morning Post Publishers Ltd. All rights reserved.

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