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Hong Kong court says government cannot rely on unexplained UNHCR RSD decisions

February 5, 2005

Full judgment available here.

The Hong Kong Court of Final Appeal ruled last year that the Hong Kong Government could not rely on UNHCR’s rejection of an asylum application in processing a deportation, because UNHCR does not provide clear reasons explaining its decisions.

The case, Secretary for Security v. Prabakar, concerned a Sri Lankan Tamil who said he was repeatedly detained and tortured on suspicion of supporting the Tamil Tigers. He tried to flee to Canada with a forged passport, but was arrested en route in Hong Kong, where he asked UNHCR for protection.

UNHCR initially rejected his application, but then recognized him on appeal when he submitted documents confirming his arrests and  a medical report corroborating his claims of torture in Sri Lanka. But UNHCR told the Hong Kong government that it was maintaining the original rejection, and the government continued deportation proceedings against him based on the rejection.

Prabakar asked the Hong Kong courts to block his deportation on grounds that he would be tortured in Sri Lanka, relying on the Convention against Torture (CAT). The government rejected the torture claim by citing UNHCR’s rejection of the case, even though UNHCR never provided any reasoning to explain its decision.

The Court of Appeal ruled that the government could not rely on “UNHCR’s unexplained rejection:”

Where the claim is rejected, reasons should be given by the Secretary. The reasons need not be elaborate but must be sufficient to enable the potential deportee to consider the possibilities of administrative review and judicial review. … Such standards could not possibly be met by the Secretary merely following UNHCR’s unexplained rejection of refugee status, with the Secretary being in a state of ignorance of the reasons for such rejection.

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