Hong Kong's 'bigoted, discriminatory' LGBT refugee decision shows gov't bill to speed up court cases won't fix surge of legal challenges, NGO says

Hong Kong pro-democracy lawmakers and a human rights organisation said on Wednesday that the government’s proposed legal amendments to speed up the handling of court cases – including those related to refugee non-refoulement claims – will not address the “root causes” of the judiciary’s heavy workload.

They said that the surge in legal challenges in recent years, especially those filed by individuals seeking protection against expulsion, return or extradition from Hong Kong to another country, were a result of “systemic injustices” within the government’s screening mechanism.

high court — File photo: Holmes Chan/HKFP.

According to a document exclusively obtained by HKFP, a rejection of a non-refoulement claim in 2018 included a local adjudicator giving “bigoted, insulting” remarks in his decision to question the sexual orientation of an asylum claimant. The claimant feared harm upon returning to Muslim-majority Egypt as he was a homosexual and a converted Christian. But the adjudicator has said the claimant could not be gay because he would have enjoyed being raped in Egypt. Plus, he had not been “diagnosed” as gay, and did not wear high-heels, floral garments, make-up or sound or walk like a homosexual.

Judicial reviews

Lawmakers are currently debating the Statute Law (Miscellaneous Provisions) Bill 2019 at the Legislative Council (LegCo). The bill includes proposed amendments to the High Court Ordinance to allow two Court of Appeal justices – instead of three – to determine applications for leave to appeal to the city’s final appellate court. The use of the two-judge bench will also be extended to determine appeals against any refusals to grant leave to apply for judicial reviews.

Judicial reviews are considered by the Court of First Instance and examine the decision-making processes of administrative bodies. Issues under review must be shown to affect the wider public interest.

The proposal was previously considered a “dead bill,” after legislators failed to complete the deliberation in the council’s final session in July. But it was “revived” after Beijing announced that the current council term could be continued for at least a year, as a solution to a legislative lacuna resulting from the postponement of September’s LegCo election.

The Department of Justice (DoJ) said the high number of judicial reviews for cases stemming from non-refoulement claims has imposed great pressure on the workload of the judiciary. The proposed amendment would increase the overall efficiency of case handling, it said: “[I]t would increase the flexibility in deployment of judicial manpower in taking up other court cases, and therefore put judicial resources to the next use,” the DoJ wrote last December in a LegCo document.

Government statistics revealed that – among the 3,899 applications for leave to apply for judicial reviews received in 2019 – 3,727 were non-refoulement claims. Similarly, in 2018, over 94 per cent of the 3,014 applications were non-refoulement claims.

Non-profit human rights group Justice Centre Hong Kong told HKFP that the amendment may “dilute procedural fairness” and said it would not address the reasons why many people decide to seek judicial reviews to challenge decisions linked to non-refoulement cases.

They said that the heavy caseload was a result of “low quality, unfair and erroneous” decisions made within the Unified Screening Mechanism for non-refoulement protection claims. The group said adjudicators on the Torture Claims Appeal Board (TCAB), which hears and determines appeals against non-refoulement claims, often displayed “hostility and cynicism” towards claimants.

‘Bigoted, discriminatory and unacceptable’

A redacted document provided by the Justice Centre showed how the TCAB dismissed a petition by an Egyptian man in 2018. Mohamed (a pseudonym), who is in his late 30s, said he converted from Islam to Christianity and is a homosexual. He tried to seek protection in Hong Kong as he feared he would be harmed upon returning to his home country.

In his decision, the TCAB adjudicator said the claimant failed to provide “medical evidence” that indicated his homosexuality. The adjudicator also said Mohamed, who claimed he was raped by a male chef when he was in Sudan in 2015, would – on balance – have “willingly consented” to the rape if he was a homosexual.

“The medical report… only states a diagnosis of ‘chronic depression,’ but no diagnosis nor even a mention of homosexuality,” the adjudicator wrote. “He does not say that because he was homosexual he had found the act of the Chef enjoyable.”

The World Health Organization declassified homosexuality as a mental disorder in 1990, whilst the American Psychiatric Association removed the “diagnosis” from its handbook in 1973.

In rejecting the claimant’s assertion that he had a feminine appearance, the adjudicator “observed” that he did not walk, talk, or dress like a gay man. “(1) the Appellant has no external bodily appearance of a woman […] (2) he is a tall, very stout man with well-build arms and physique, (3) he wears a thick moustache, (4) he wears a thick beard, (5) he wore no feminine garments e.g. no floral patterns but a plain dark purple T-shirt and pants, and no high heels, (6) he wears no makeup of any kind, (7) he spoke with a strong masculine tone and manner of speech, and (8) he walked into the hearing room in the same manner and gait as any man.”

The adjudicator concluded that Mohamed was “unreliable” and his story “vaguely asserted,” saying he was uncertain about the time of another rape that allegedly happened in his childhood. He also questioned the threats faced by Mohamed, citing Christians who are “alive and well” in Cairo.

Move to Canada

Speaking to HKFP on the phone on Wednesday, Mohamed said he has successfully relocated to Montreal, Canada via private sponsorship of Canadian refugees program, shortly after his claim was dismissed in Hong Kong.

The Egyptian said he still vividly remembered his experience in the city and said he had very unpleasant encounters with the local Immigration Department, responsible for assessing non-refoulement claims through the screening system.

He said the adjudicator who heard his case was known to be “strict” among refugees, and he felt uncomfortable when he was presented with questions about his sexuality.

immigration tower wanchai — Immigration Tower. Photo: HKFP/Ellie Ng.

“I have a lot of friends, a lot of memories in Hong Kong. I don’t hate Hong Kong, the place – I hate the Immigration,” he said.

Looking back on his journey to seek refuge in Hong Kong, Mohamed said the process was complicated and he would not recommend that other asylum seekers to come to the city: “Don’t come to Hong Kong, it’s crazy.”

Justice Centre research and policy officer Rachel Li said Mohamed’s case demonstrated why many claimants file an appeal or a judicial review against the decisions of their claims. She said the adjudicator may not dare to give such “outrageous” comments were the TCAB decisions made public.

“[Mohamed’s case shows] how bad the decisions are, how bigoted, discriminatory and unacceptable,” she said, adding that the Centre would have pursued legal challenges for Mohamed if he did not leave the city soon after the case dismissal.

Li said the government’s bill to amend the High Court Ordinance would affect all judicial review cases, but the Justice Centre was only made aware of the proposed amendment after legislators reached out to them for comment: “The consultation process is often not open and transparent. When the government wants to give an impression that they have spoken with stakeholders, they would invite you to meetings. They are very much in charge of the process,” she said.

According to LegCo documents, the Judiciary Administration conducted a consultation with the Hong Kong Bar Association and the Law Society of Hong Kong between June and September last year. The Law Society backed the amendments, while the Bar Association queried whether the amendments were necessary.

Their response echoed with opinions of the Justice Centre, saying the quality of and the lack of transparency in immigration and TCAB non-refoulement petition decisions have added to the high volume of court cases.

Hong Kong Bar Association Chairman Philip Dykes. Photo: Kris Cheng/HKFP.

“There has been little discussion on how elementary errors in the decision-making process in the USM have necessitated involvement of the courts in exercising their supervisory jurisdiction in the first place,” the association wrote, adding that if there is more legal assistance given to claimants for their appeal to the TCAB, there may be fewer judicial reviews of the decisions.

Pro-establishment lawmakers have said the bill included “technical amendments” which should not be controversial. They said that amending the number of justices would help speed up the process of determining non-refoulement claims, by freeing up more manpower.

‘Waste of time’

At the Legislative Council (LegCo) meeting on Thursday, the Statute Law (Miscellaneous Provisions) Bill 2019 was submitted for consideration by the Committee of the Whole Council. Legislative president Andrew Leung told lawmakers to go through the clauses of the bill only, and interrupted a speech by some democrats who commented on the principles of the bill, as Leung said they had already done so in the second reading.

Speaking to HKFP on Wednesday, pro-democracy legislator Fernando Cheung questioned how effective the amendment would be, saying it would be a waste of time and resources if the two justices fail to reach a consensus, as the court will have to start anew with a three-judge panel.

The democrat, who is also a registered social worker, said that – if the government procedures are well-executed – there would not be a heavy judicial review caseload. He also responded to the remarks made by the adjudicator in Mohamed’s case, saying the adjudicator was “ignorant.”

“I would say that is the most ridiculous thing I’ve ever heard. Would you assume a heterosexual person would enjoy being raped? This is a highly insulting and discriminatory,” he said.

Cheung said lawmakers still wanted to discuss the principles of the bill in details, but said he was unsure what the LegCo president may do to move the legislative process forward. He cited the president’s move to impose a timeline for the adjournment debate on Wednesday, which he said was a decision not back by the president’s powers stated in the Rules of Procedure.

He added the council should not give this “revived bill” any priority, saying there were more urgent issues to be addressed, such as how to cope with the pandemic, as well as relief measures for the unemployed: “A lot of things in this bill are very technical. If we pass it, I don’t see much positive results. If it is not passed, it doesn’t seem to have any negative impacts. We should not waste time on it.”

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