Immigration Department’s refusal to entertain CIDTP claims
For the attention of the Hong Kong Chief Executive, Mr. C.Y. Leung
Honorable Sir –
Vision First is a nonprofit that advocates rights for people seeking protection. The Court of Final Appeal recognized that the Immigration Department has a positive duty to assess not only torture claims, but also CIDTP (cruel, inhuman, degrading treatment or punishment), and Refugee claims. The court recognized the right not to be subject to CIDTP as a non-derogable and absolute right, even for those persons having no right to enter and remain in Hong Kong. The court also held that the Immigration Department has a positive and independent duty to assess Refugee claims and can no longer rely on UNHCR determinations.
We are concerned that the Immigration Department’s biased conduct and its refusal to entertain CIDTP claims during the torture claim screening process, has established a clear policy not to screen for such claims in conjunction with torture claims. It is also clear that despite the government’s massive financial resources and substantial human resources and legal expertise within in the Department of Justice, the Immigration Department has established a clear policy, by its conduct and actual statements made to claimants, not to screen any asylum seeker for CIDTP. Our concerns are backed by primary data collected from claimants who are undergoing torture screening. Furthermore, evidence corroborating this policy is found clearly stated in the Immigration Department’s 27 April 2013 press release which says it “estimates that 2,000 decisions can be made in 2013-14.” By necessary implication, CIDTP screening will not be conducted as part of these torture claim screenings. In the above press release not a single mention is made of CIDTP protection, which is a constitutional right.
Facts lead us to believe that following the Court of Final Appeal judgments of “Ubamaka” (FACV 15/2011) and “C, KMF, BF” (FACV 18/2011), the Immigration Department is fast-tracking rejections to remove asylum seekers before the torture screening mechanism is reviewed in a number of High Court judicial reviews concerning screening for CIDTP. This unlawful expediency plays into the hands of what appears to be the Immigration Department’s hidden policy to deny asylum. With a .02% acceptance rate in the last 21 years, 2,000 decisions might identify one torture victim – if any. Statements gathered from claimants suggest that the Immigration Department is accelerating screenings, denying time extensions and closing cases that fail the 28-day deadline, even when interpreters and lawyers are not available. Claimants have been told that it is not proper to discuss CIDTP in the torture claim screening procedure and that the torture claim screening process must proceed without consideration of CIDTP.
There is a widely held belief these negative decisions reflect a strategy to deny protection despite cases of merit, evidence submitted and legal representation. In this caustic climate, an attitude is developing in which impartiality is lost to insensitivity. It is no surprise that a duty lawyer said, “Twelve cases done and dusted this month” and a senior judiciary official declared, “How do we deal with the fact that all the claims are bogus and the claimants are ripping off the system?” While undermining refugee rights, these individuals fail to appreciate their job involves momentous decisions on risk of life and limb of asylum seekers if returned to their country of origin and that requires high standards of fairness.
Six months after “Ubamaka” and three months after “C, KMF, BF”, the government is still seeking legal advice to decide the most appropriate way forward. By having a policy to refuse to screen torture claimants for CIDTP, the Immigration Department is in violation of asylum seekers constitutional rights and its obligations under international law. This policy and conduct also undermine Hong Kong’s rule of law and international standing. Both the Hong Kong Bar Association and the Law Society of Hong Kong have highlighted the significance of these judgments and recommended a unified screening mechanism for torture, CIDTP and Refugee claims.
Vision First is gravely concerned about the 150 negative decisions determined monthly in blatant disregard of the above CFA rulings. We wonder what the respective judges would think about hundreds of torture claims rejected since “Ubamaka” – in the face of the constitutional requirement to overhaul the current system in compliance with the Court of Final Appeal judgments. Evidence suggests that not only is the Immigration Department dangerously fast-tracking rejections, but it is also denying claimants rights to apply for CIDTP protection, threatening those who intend to do so and entrapping claimants who are less aware of their rights and the government’s duties.
In light of the above, Vision First respectfully requests that the government:
- Stop screening claimants under an unlawful screening system;
- Cease arresting, detaining and removing failed torture claimants;
- Acknowledge and accept that “all” torture claimants have concurrent CIDTP claims;
- Immediately release all Torture/CIDTP/Refugee claimants from Castle Peak Bay Immigration Centre;
- Refrain from violating refugee rights to asylum;
- Issue comprehensive guidelines for determining unified asylum (Torture, CIDTP and Refugee) claims;
- Acknowledge and accept asylum (Torture, CIDTP and Refugee) claims in full compliance with the CFA judgments;
- Ensure the current statutory process is halted pending review and CIDTP and Refugee screening mechanisms being put into place.
Apparently the Immigration Department has not taken any steps to comply with the “Ubamaka” and “C, KMF, BF” rulings of the Court of Final Appeal and has a policy not to screen asylum seekers for CIDTP. On 18 February 2013, the Hong Kong government issued a press release which stated:
“The Immigration Department is studying the CFA’s judgment in detail, seeking legal advice from the Department of Justice, and actively exploring the various possible options to ensure the relevant duties are carried out in accordance with the CFA’s judgment.”
Almost half a year has passed since “Ubamaka” and there has been no further statement or action taken by the government to comply with this crucial decision. All the asylum seekers in Hong Kong are being denied their constitutional rights by the government’s continued delays. The Hong Kong community has been waiting for the government’s reply, in the face of the Immigration Department’s current policy that does not comply with “Ubamaka” and more recently “C, KMF, BF”.
Click here to view and download Vision First’s letter to the Hong Kong Chief Executive C.Y. Leung