More Delays Feared For Snowden Refugee Asylum Appeal

A human rights lawyer is calling for an explanation as to why a new panel will has been assigned to decide whether to approve his client's asylum application, fearing it may further delay a decision they've been waiting on for more than three years.

Ajith Pushpakumara is one of a group of asylum seekers who helped shelter the American whistleblower Edward Snowden in 2013.

A former soldier from Sri Lanka, he sought refuge in Hong Kong in 2003. His lawyer, Robert Tibbo, said Ajith fled for his life after being subjected to cruel, inhuman treatment and punishment by his own superiors.. His case has been at the Torture Claims Appeal Board (TCAB) since June 2017.

Tibbo says Ajith’s case was heard by a single adjudicator in June 2018, but no decision was handed down in that year, or the year after.

Ajith recently received a letter from the TCAB informing him that his appeal petition had been “reassigned to a differently constituted panel of members/adjudicators. The new panel will consider all information in the appeal/petition before directing for further hearing(s).”

Tibbo says the prospect of his client facing another long wait for a decision showed a complete failure in the administration of justice. He believes Ajith will be re-screened, which he says goes against the United Nations’ Convention on the Status of Refugees.

“Somebody who is that traumatised should not have to be screened over and over again. Every time he is screened, he is re-traumatised,” Tibbo said.

He says the original adjudicator in the case should hand down his decision.

“Ajith has been in Hong Kong far too long, he cannot go back to his home country, he’s lost his ties in his home country,” he said.

“And this is a case where he should be granted protection under Article 33 of the Refugee Convention, and that’s what I think should happen at this stage – not starting the whole appeal process all over again with the uncertainty of how many years it will take to hear this case.”

The Security Bureau told RTHK that the number of appeals received by the TCAB had increased significantly, “from more than 700 cases in 2014, to over 2,000 cases in each of 2015 and 2016, and over 5,000 cases in each of 2017 and 2018.”

It said the time needed to handle such cases has been significantly lengthened as a result of this increase. But it said the government has attempted to expedite the handling of appeals by allocating more manpower and resources to the TCAB.

“TCAB has shortened its processing time of adjudicating each case (once allocated to TCAB members) from about 59 weeks in 2016 to about 26 weeks on average now,” the bureau said.

But the bureau did not respond to the question of why Ajith’s appeal had been re-assigned, or whether the original adjudicator was still a member of the TCAB.

Patricia Ho, a principal lecturer at the University of Hong Kong’s faculty of law, says an explanation should be given.

“It is not unheard of for a decision maker to change, due to an adjudicator resigning or leaving the post, so at the outset I won’t immediately be alarmed,” Ho said. “But I do think it’s incumbent on the appeal board to provide an explanation to a certain change of the decision makers in a case, especially when it happens at such a late stage.”

Ho also said it was not uncommon for asylum seekers to wait for several years for a decision on their claims.

“No it’s not that unusual as far as I’ve seen,” she said. “In my experience, there’s been quite a lot of cases that have been waiting for decisions for even three or four years.”

Ho said she’s aware that the latest Covid restrictions have added pressures to the administration, and that’s the reason she's been given for some delays.

The administration has also been attempting to streamline the screening of claims, through the Immigration (Amendment) Bill proposed in late 2020.

However Ho says the overall problem with that proposal is the pretext that the procedures need to be streamlined because asylum seekers are delaying the process.

“They’re painting a picture out there of asylum seekers being uncompliant and the administration is doing everything they can,” she said. “The problem I have with that is that it’s quite far from the truth, because a lot of claimants are really trying their best to work with the administration to get a quick decision – because they want to move on with their lives.”

“So, we need to really see that the delay is not necessarily caused by the claimants but a lot of times it seems to be just pure administrative delays on the part of the government.”

The government revealed to Legco in the middle of last year that 179 out of 17,618 non-refoulement claims since 2014 had been substantiated by the Immigration Department – an approval rate of about 1 percent.