The UNHCR previously had the role of assessing and determining refugee claims (“persecution claims”) in Hong Kong in accordance with Art. 33 of the Convention Relating to the Status of Refugees (1951) (“Refugee Convention”). The UNHCR has now ceased its refugee screening mechanism and has implemented the ‘Unified Screening Mechanism’ (“USM”) in response to the Court of Final Appeal’s ruling in the case of C v the Director of Immigration FACV 18-20/2011 (see previous post by Sebastian Ko here).
The USM officially commenced on 3 March 2014 and the Immigration Department is now responsible for assessing and determining both torture and persecution claims under one integrated system. All potential claimants may now bring a claim either on the basis of torture, persecution, or both.
A USM claimant lodging a persecutionclaim must show the following:
- he/she has a well-founded fear of being persecuted on account of one or more grounds of race, religion, nationality, membership of a particular social group or political opinion,
- he/she is outside his/her country of nationality and is unable, or, owing to such a fear, unwilling to avail himself/herself of the protection of that country; and
- his/her life or freedom would be threatened on account of his/her race, religion, membership of a particular social group or political opinion should he/she be expelled from Hong Kong or returned to another country where the applicant has made a persecution claim.
These five grounds (in bold) are the same as those stated in Art.33 of the Refugee Convention. However, the Government has confirmed its position that it will not ratify the Refugee Convention or its 1967 Protocol and that the ruling in C v the Director of Immigration does not compel it to do so.
All USM claimants are entitled to receive publicly funded legal assistance from lawyers who are part of the Duty Lawyer Service (which has been providing legal assistance to former torture claimants since December 2009 after the Court of First Instance ruled in December 2008 in FB & Others v the Director of Immigration, that the Government had an obligation to provide legal assistance to torture claimants who are unable to afford legal representation). Legal assistance will cover the entire USM screening process; including the completion of forms, submission of evidence, attendance at screening interviews, and any appeal process. All unsuccessful claimants are permitted to lodge an appeal.
USM Claimants who substantiate their persecution claims will be referred to the UNHCR who will over-see the re-settlement of the claimant to a third country. Despite the reforms brought about by the USM, the Government has maintained its policy of refusing to re-settle successful claimants in Hong Kong.
One of the most significant impacts of the USM is that all decisions of the immigration officers are now capable of being subject to judicial review and scrutinized by the local courts to ensure that their assessments meet a ‘high standard of fairness’ (as required under local law). Under the previous scheme, decisions made by the UNHCR were not subject to judicial review as the Government has no jurisdiction over the UNHCR. The Director of Immigration also formerly maintained a policy of repatriating all unsuccessful claimants as adjudged by the UNHCR without first making a separate and independent inquiry into the merits of their application. This repatriation policy came under heavy criticism as it was not possible to ensure that the UNHCR determination process reached a high standard of fairness.
The implementation of the USM has been seen by many non-governmental organizations and public lawyers as a milestone in the development of Hong Kong refugee law and policy. It also evidences the Government’s compliance with its international obligations under the Convention against Torture (1984) and customary international law.
However, some of the same criticisms made about the previous screening systems have also been made to the USM screening process. Local NGO staff workers and USM claimants contend that the screening process lacks accountability and transparency, local advocacy groups have not been consulted, and the questions asked to claimants have not changed from the previous systems. As of November 2014, there are 9,500 outstanding USM claims and only 504 claims have been dealt with since March. The recognition rate is 0.2%.