AsiaXPAT Exclusive - On 30 October 2012, around 300 people marched from Central, Hong Kong to the government headquarters in Admiralty protesting the zero percent recognition rate for torture claimants in Hong Kong.

There is clearly cause for outrage. Since 1992, when the Torture Convention was extended to Hong Kong, there have been 11,900 claims submitted to the Immigration Department for protection. However, only one claim has been successful.

The Immigration Department Annual Report of 2009-2010 indicates that most Torture claims come from South Asia and Africa (e.g. Pakistan, Bangladesh, Sri Lanka, Somalia, Democratic Republic of Congo, Nigeria, Togo) – places with reports of widespread political unrest and governmental abuse. It’s therefore unimaginable and absurd that there has only been one recognized torture claimant in Hong Kong.

There can only be one explanation for the zero percent recognition rate: that there has only ever been one genuine torture claimant in Hong Kong, or that the torture claim assessment system is in fact incapable of identifying those who have a genuine fear of torture upon return to their home country.

The latter is the more likely explanation.  There has been substantial criticism and numerous judicial review proceedings in the High Court of Hong Kong challenging the lack of procedural fairness in the torture claim screening system. This has led to various reforms in the system which are aimed at a better protection of a claimant’s rights, and the implementation of an ‘enhanced’ system. This enhanced system has subsequently been adopted into a statutory process by way of the Immigration (Amendment) Ordinance, which came into effect on 3 December 2012.

Although these procedural reforms are a welcome development towards more satisfactory screening procedures, the zero percent recognition rate also begs the question of whether the assessment process is carried out in a manner that is truly effective in discovering those who have a genuine risk of torture.

The Torture Convention

The Torture Claim Assessment system is implemented and enforced by the Immigration Department so that Hong Kong can satisfy its obligations under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Torture Convention”). China is a party to the Torture Convention, and extended it to Hong Kong in 1992.

Under article 3 of the Torture Convention, Hong Kong has an obligation not to return a person to another state “where there are substantial grounds for believing that that person would be in danger of being subjected to torture.” As to the meaning of ‘torture’, article 1 of the Torture Convention states that:

“… the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” (emphasis added)

The meaning of torture, for the purposes of the Torture Convention, is therefore the infliction of an act of severe pain or suffering by a person acting with the consent or knowledge of a government official, for the specific purposes identified in article 1 (see bolded section). This is what a person must establish a risk of facing in order to be protected form removal.

Overview of Torture Claim Screening Process

Many of the torture claims in Hong Kong are initiated by a person writing to the Director of Immigration resisting deportation on the grounds that he/she has a risk of being tortured upon return to a particular country. Such application can only be made once the individual’s permission to stay in Hong Kong has expired.  

As a matter of policy, the Director of Immigration will not entertain a person’s torture claim until he/she has overstayed. This policy has been subject to criticism because an individual is effectively forced to commit an immigration offence, rendering them liable to prosecution and detention, before they can make a torture claim.

After a person has made the initial application for protection, the Immigration Department will serve a notice (informing the claimant of the procedures) and a questionnaire (allowing the claimant to set out details of his/her claim) on that person. The questionnaire and all supporting documents have to be submitted to the Immigration Department within 28 days (for example: identity cards, medical reports, certificates, etc).

The Duty Lawyer Service (DLS), a scheme offering free legal assistance to all Torture Claimants provided by the government, bears the primary responsibility for carrying out this preparation. This is a particularly strenuous obligation given that the DLS receives 40 new cases from the Immigration Department in a week.

Within 28 days of receiving the referral, the DLS has to achieve the following: assign a lawyer to a claimant, apply for the client’s immigration records, take detailed instructions from the client over the course of several interviews, arrange an interpreter, compile all evidence to be submitted, and finally, complete the questionnaire and submit it to the Immigration Department. 

After the claimant has submitted the questionnaire, he/she will be required to attend a screening interview by an immigration officer.

The Screening Interview

The screening interview is viewed as an opportunity for the immigration officer to clarify certain points about the claimant’s questionnaire. The interview is often conducted by an immigration officer who goes through a list of specific inquiries which arose from the officer’s review of the claimant’s questionnaire.

The screening interview is a crucial component of the assessment process. It is the primary opportunity for the claimant to express his/her personal reasons for fearing torture upon return.

Oddly enough, the focus is never on the more obvious and open-ended inquiries of why the claimant left his/her country, or why he/she fears torture. Rather, the screening interview is conducted in a way that involves an examination, in excruciating detail, of all minor (and even irrelevant) aspects of the claim. The claimant is required to go through what appears to be a memory test on every detail provided in the questionnaire or previous interviews with an immigration officer, and to explain every minor inconsistency that arises between these individual statements. 

While this may be an accepted method in testing the factual consistency of the claimant’s account of events, this is not the preferred or most efficient method of determining a torture claim. By honing in on every minor detail expressed in the claimant’s questionnaire, the screening process becomes increasingly removed from the true purpose of the torture claim assessment system: to identify those who have a genuine and substantial fear of torture.

The Preferred Model of a Screening Interview

The starting point to the screening interview should not be on how to catch out the claimants, or to show that they are lying.

The screening interview should involve more probing and meaningful inquiries into the claimant’s personal experiences and situation in his home country, rather than a mere clarification of matters raised in the questionnaire. It is important to allow a claimant to express, in his/her own words, why he/she fears torture. This is because the questionnaire is often prepared on the claimant’s behalf, and under extreme time restraints. It is therefore not the fullest or most personal representation of the claimant’s personal experiences, and the fear that he/she claims. 

The first question should be whether the fear expressed by the claimant fits the legal definition of torture. Many claimants face very real problems in their country – but if it doesn’t rise to the level of torture for the purposes of the convention, then they cannot be afforded protection. If the claimant does not satisfy the legal definition for torture then the matter ends there. It is completely unnecessary to descend into the finer details of their claim.

Only if it appears that the claimant may have a sustainable claim under the Torture Convention would it would be useful to ask more detailed questions relating to his/her claim to test the credibility of the claimant – and to ensure that the claimant is in fact telling the truth.

It is therefore not suggested that each and every single claim that comes through requires a detailed examination of the claimant’s experiences. Some claims will be obviously without merit and won’t deserve that level of examination – the torture claim system is clearly subject to abuse by those who use it to bypass the stringent visa regime in Hong Kong. For example, foreign domestic workers whose work contracts have expired and are required to leave Hong Kong within 14 days.

Conclusion

The fact that the torture claim screening system has been subject to abuse does not reflect on the value of the system itself – but only on the way it has been implemented. It should therefore not affect the approach one takes to the implementation of the screening process, nor should it be reduced to a mere formality.

Unless a true and meaningful effort is devoted towards identifying those who genuinely fear torture, Hong Kong is not satisfying its obligations under the Torture Convention. There is therefore good cause in ensuring that the torture claim assessment system is implemented in an effective and efficient manner, designed to distinguish between those who have meritorious claims and those who do not. The latter ought to be properly recognized, and given adequate protection from being returned to torture.