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V.
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involvement of non-governmental organisations
Hong Kong will face pressure for UNHCR or other non-government representation on a panel to decide the appeal. This I would avoid at all costs. The system would become unwieldy very quickly and the number of applicants would overwhelm any system with unacceptably long delays before the appeal could be listed. Apart from this, participation of UNHCR or other agencies in the decision making process has been shown to result in an artificially high recognition rate of refugees (Belgium, for example, has recently abandoned UNHCR participation in the actual process). The hard fact is that agencies involved in refugee work are often reluctant to refuse any application and if, as I anticipate, Hong Kong wish to apply strict 1951 Convention criteria, the involvement of such agencies will preclude them from doing so.
recourse to the courts
I am not sure whether Hong Kong intend that (or have any influence over whether) their screening decisions will be reviewable by the courts. If so, they will certainly be faced by judicial intervention. UK experience has
demonstrated that good and committed legal representatives of asylum applicants quickly become adept at making full use of all the channels available to prevent their clients being returned.
6. This all sounds very negative and is intended to be such. We simply do not believe that there is such an animal as a quick and effective system of appeals and that simply by embarking on the establishment of an appeal system, Hong Kong will end up with a bureaucratic and legalistic system. The one possibility which offers some hope is that of treating applications as "clearly abusive" and "manifestly ill-founded" which, under UNHCR Rules (see pages 17, 68 and 69 of the attached UNHCR document), justify abbreviated procedures. You may also like to see the UNHCR Handbook which is
also enclosed.
7.
Finally I would advise against too much haste in setting up any appeal system. Once any system is up and running it takes on its own impetus and it is well nigh impossible to stop and take stock. The long-term disadvantages of any unwieldy system could be enormous and other countries have already found to their cost that if asylum applicants can play a system to extend their stay in a country this, in itself, acts as a pull-factor rather than a deterrent.
8.
I appreciate this is all rather discouraging but I think it is important to sound a warning based on current events on the asylum/refugee front. If you feel our experiences in this field could help you to negotiate this potential mine-field please do not hesitate to get in touch.
CONFIDENTIAL
Yours ever,
Time Fresher
T J FLESHER
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