Non-refoulement is a fundamental principle of international law. As Goodwin-Gill notes, it is an obligation on states not to send individuals, regardless of their migration status, to territories in which they may be persecuted, or in which they are at risk of torture or other serious harm. [1]
In a 2010 article, Loper examined actions brought by asylum seekers on Hong Kong’s (ostensibly) inadequate refugee policy which hinged on establishing a right to non-refoulement based on international and domestic law.[2] As the seminal cases of Secretary for Security v Sakthevel Prabakar (creation of a torture screening mechanism) and C v Director of Immigration (status and recognition of non-refoulement in Hong Kong) demonstrate, these were done with establishing procedures to determine refugee status in mind.
Has this position changed? And if so, for better or worse?
In this interview-article, Lynette Nam, Senior Advisor at the Hong Kong Justice Centre (“Justice Centre”) lends us insight into the state of non-refoulement laws in Hong Kong, while detailing the Justice Centre’s work in providing guidance and legal help to migrants/refugees.
Interviewee: Lynette Nam
1. What is the current state of the non-refoulement laws in Hong Kong? If it is problematic, why so?
The 1951 Refugee Convention has not been extended to Hong Kong, and the government does not accept any obligations arising from it. The current state of Hong Kong’s non-refoulement law is a product of multiple and ongoing judicial review challenges.[3] Over the years, these challenges have cobbled together the Unified Screening Mechanism (USM) under which the Hong Kong government is obligated to determine claims for non-refoulement protection, and specifically consider whether a claimant is likely to be at risk of persecution, torture, cruel, inhuman or degrading treatment or punishment, and/or violation of the right to life should she be returned to her country of origin.
This piecemeal approach to the development of law and systems reflects a core issue, which infects the entirety of the system: the lack of political will. In the absence of the Refugee Convention’s normative underpinning, Hong Kong limits its obligations to the absolute bare minimum and refuses to improve and address issues within the USM (including those discussed below), or extend any social, economic or political rights to non-refoulement protection claimants. In fact, through their respective review of United Nations human rights treaties’ implementation in Hong Kong, several United Nations treaty monitoring bodies have either expressed concerns/regrets over Hong Kong’s position not to accede the Refugee Convention, or recommended Hong Kong to adopt comprehensive laws and policy in conformity with the Refugee Convention.[4]
2. Further to the Legislative Council's 2016 Paper, in Justice Centre’s opinion, which aspect of non-refoulement laws is in need of the most attention (e.g., time-lag of the claim, low-substantiation percentage of claims, etc.)?
There are many aspects of non-refoulement law which are deeply problematic. One such aspect, which in effect contributes to a multitude of problems, is the quality of decision-making. What we see at Justice Centre, at both the Immigration Department and Appeal Board levels, are decisions based on flawed reasoning, lack of understanding of key legal concepts, and in some instances outright bigoted and discriminatory views expressed by decision-makers. Related to this is the lack of legal representation at critical junctures, with less than 8% of claimants legally assisted at the appeal stage; and an opaque system where decisions are not published, and adjudicators exercise wide discretion without safeguards such as vulnerable witness procedures.
These issues culminate in a shockingly low substantiation rate (which per the latest available statistics is less than 1%), inefficiencies and delays as claimants seek to challenge unfair decisions, and re-traumatisation of traumatised persons.
3. What is Justice Centre’s role when helping non-refoulement claimants?
With a small team of experienced public interest lawyers, Justice Centre provides specialised legal support to refugees and marginalised migrant. We do this by providing responsive and accessible legal information and support, securing legal representation for unrepresented claimants, and providing technical assistance to lawyers working on protection claims. Taking a holistic approach, we ensure protection claimants are supported throughout the legal process by providing social welfare assistance and access to psychotherapy.
Looking at the broader picture, our policy team integrates strategic casework with authoritative research to defend and advance protection and fairness. Our policy recommendations are recognised both locally and internationally. Through empowerment initiatives and awareness-raising campaigns, we also seek to bring visibility to the communities we work with and support them to amplify their voices.
4. Are there any particular non-refoulement claims which have stood out to Justice Centre in the past?
Speaking personally, as a lawyer within Justice Centre, many cases have been seared in my memory. It is difficult to name one or only a few. However, what immediately springs to mind is a case involving a young Hazara man from Afghanistan, Abdul. (This is not his real name.) I met Abdul when he was detained at Castle Peak Bay Immigration Centre in 2015, in my first year of working at Justice Centre. As an NGO lawyer, I was only permitted to meet with Abdul for 15 minutes, during which we were separated by a glass panel and speaking through a telephone without an interpreter. Abdul told me with his limited English, and I was later able to ascertain from his immigration documents, that he feared he would be killed if he were to be returned to Afghanistan. I also learnt that he had been kicked around the region by various governments from Thailand to Hong Kong to Malaysia back to Hong Kong, all the while trying to claim asylum.
In the end, Abdul was removed from Hong Kong without being able to seek asylum. Justice Centre was barred access, and the Director of Immigration did not accept his attempts to lodge a claim. This case stands out – perhaps more than our successes – given the blatant injustice and unfairness, which demonstrated a clear and urgent need for change, and in my early years in this sector, fuelled my passion for this work.
5. Are there any ways which Hong Kong citizens can support change in this area of law?
All Hong Kong citizen have a role to play in creating a more tolerant society, where every person – no matter race or ethnicity – is treated humanely and with equal respect and dignity. The first step that Hong Kong citizens can take is to join the conversation, and seek to know and understand the issues facing refugees and other forced migrants. The next step is to engage others in the conversation, and counteract prejudices which so often arise from misunderstandings and incorrect presumptions. During a time of fake news and xenophobic rhetoric, taking these steps are more important than ever.
We would like to thank the Hong Kong Justice Centre for working with us on this article and providing invaluable insight on the non-refoulement issues in Hong Kong.
For more information regarding migration issues in Hong Kong, click on the links below:
Human rights concerns with the proposed amendment to the Immigration Ordinance;
Our 24-minute TV interview on the bill and systemic issues with the USM;
Statement on the Secretary for Security’s blog article in relation to the bill and immigration detention; and
Our collaboration with RTHK’s Hong Kong Connection 鏗鏘集 on immigration detention.
To find out more about the Justice Centre in Hong Kong:
Hong Kong Justice Centre – HK Asylum Guide
Disclaimer: The opinions expressed in this post are those of the authors, and do not reflect the views or opinions of the Durham Asian Law Journal.
[1] G. Goodwin-Gill, ‘The Right to Seek Asylum: Interception at Sea and the Principle of Non-Refoulement’ (2011) 22(3) International Journal of Refugee Law at 443. [2] K. Loper, ‘Human Rights, Non-Refoulement and the Protection of Refugees in Hong Kong’ (2010) 22(3) International Journal of Refugee Law at 404-39. [3] Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187; FB v Secretary for Security (2009) 2 HKLRD 346, CFI; Ubamaka Edward Wilson v Secretary for Security & Anor (2012) 15 HKCFAR 743; C & Ors v Director of Immigration & Anor (2013) 18 HKCFAR 280; GA & Ors v Director of Immigration (2014) 17 HKCFAR 60. See a brief summary of these cases in Annex A of Legislative Council Paper No. CB(2)1426/17-18(01), at https://www.legco.gov.hk/yr16-17/english/hc/sub_com/hs54/papers/hs5420180521cb2-1426-1-e.pdf. [4] At paragraph 92, Concluding observations of the Committee on Economic, Social and Cultural Rights (2005), at https://undocs.org/en/E/C.12/1/Add.107; At paragraph 44, Concluding comments of the Committee on the Elimination of Discrimination against Women (2006), at https://undocs.org/en/CEDAW/C/CHN/CO/6; At paragraph 84, Concluding observations of the Committee on the Rights of the Child (2013), at https://undocs.org/en/CRC/C/CHN/CO/3-4; At paragraph 9, Concluding observations of the Human Rights Committee (2013), at https://undocs.org/en/CCPR/C/CHN-HKG/CO/3; At paragraph 42, Concluding observations of the Committee on Economic, Social and Cultural Rights (2014), at https://undocs.org/en/E/C.12/CHN/CO/2; At paragraph 52, Concluding observations of Committee on the Elimination of Racial Discrimination (2018), at https://undocs.org/en/CERD/C/CHN/CO/14-17.
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