Written by Askia M Sillah*

Snowden’s Guardian Angels, as they are commonly referred to by the media, are at immediate risk of being detained by the Director of Immigration at the Castle Peak Bay Immigration Centre in Tuen Mun (“CIC”), as well as and being removed or deported to their home countries.

At a legal press conference on Monday June 25, 2018, the lawyers acting for the three families who provided shelter to American whistleblower Edward Snowden in June 2013 made important announcements concerning changes to their status and circumstances with the Hong Kong and Canadian Governments. In particular, announcements were made concerning the dire circumstances of Mr. Ajith Pushpa Kumara Kankanamalage, the ex-soldier who sheltered Mr Snowden in Hong Kong in 2013. His Torture Claims Appeal Board (TCAB) hearing was held between 25 to 27 June 2018.

“Suffering acute post-traumatic stress disorder”
Ajith’s deteriorating situation in Hong Kong, and the Canadian government’s reluctance to quickly act to provide him with protection was underlined by Human Rights Watch in an open letter to Canadian Minister of Immigration, Ahmed Hussen. The international human rights watchdog drew attention to Ajith’s unfitness to appear before the appeal on 25 June due to his deteriorating health.

“Ajith is suffering acute post-traumatic stress disorder (PTSD) and mental health issues as a result of past torture and sexual abuse suffered at the hands of the military and military police in Sri Lanka. He faces the very real prospect that the upcoming appeal of his application for asylum in Hong Kong will be rejected and that he will be returned to danger,” Human Rights Watch said in a statement.

Barrister Robert Tibbo, attorney for the appellant for the past six years, was removed from the case five working days before the hearing and the appellant’s public legal assistance with the Duty Lawyer Service (DLS) was also terminated.

Tibbo appeared deeply concerned about the hearing, noting that Ajith’s psychiatrist is doubtful that he can even participate meaningfully or safely, given his acute post-traumatic stress disorder symptoms and the re-traumatisation he suffers when he is asked to discuss the experiences that caused him to flee Sri Lanka. He noted that since Hong Kong authorities rejected the asylum seekers’ claims in September 2016, Ajith’s mental state has deteriorated sharply, his doctors and lawyers fear that his life and safety are at risk.

Speaking via mobile to the press conference, Tibbo also indicated that the appellant faced difficulties as to the assignment of his choice of legal representative. Current Counsel Rob Connelly was initially refused as well. Connelly was finally assigned by a private law firm to represent Ajith. When asked whether the appellant could be detained after a decision is issued by the TCAB, Tibbo said the Director of Immigration has the discretion to detain but he expect the Director to exercise his discretion to not detain Ajith.

If detained by the Director of Immigration, three of the clients, children aged between one and six years of age, will be taken away from their parents and put into government facilities or foster care. If returned to their home countries, all family members will face the immediate and real risk of being subjected to arbitrary arrest and detention, cruel and inhuman degrading treatment and punishment, torture, persecution and extrajudicial killing.

Tibbo is far from alone with his concerns. “Canada has been dragging its feet on these applications, apparently waiting out the protracted legal process, and likely rejection by Hong Kong, and the psychological toll on these people has been enormous,” Dinah Pokempner, general counsel at Human Rights Watch said in a statement.

“It is shameful that Ajith, who fled horrific torture and who still has persecutors tracking him, is still unsafe and unprotected, all the more so because he helped Edward Snowden, whom he knew only as a fellow asylum seeker.”

“Canada must expedite the appellant’s refugee claim”
At the TCAB hearing, international human rights observers were barred from entering the trial. Speaking to the press, barrister and international refugee law expert Mr. Guillaume Cliche-Rivard explained that he had been was refused his right of entry into the hearing room at the TCAB in North Point. The Adjudicator said no international or national observers were allowed at the present hearing.

“We have remained confidential, [we] should have still been accepted, there was no breach of confidentiality with the court. It’s another example of lack of transparency and lack of fairness”, said Cliche-Rivard.

Cliche-Rivard informed the press that the appellant clearly asked for their lawyers to be present. As international human rights lawyers, Cliche-Rivard’s team needs to report and observe these closed courts in order to help with Canada’s asylum applications. Denying the claimant’s right to be fully represented by a competent legal team and independent human rights monitors is a breach to Ajith’s rights to fair representation according to Cliche-Rivard.

He also emphasised that Canada must expedite the appellant’s refugee claim to ensure that the appellant does not face deportation to Sri Lanka, where he could be subjected to substantial and imminent danger.

“The claimants continue to face persecution where they are now,” said Cliche-Rivard. He implored Canada to act sooner rather than later.

“A negative impact on future appeals and due process”
The acceptance rate of asylum seekers in Hong Kong is a staggering 0.6 percent out of more than 10,000 claimants, and asylum seekers are not allowed to work while their claims are being processed – although it can take many years to be determined.

It is advisable that the Hong Kong Government pushes harder to protect the fundamental human rights of vulnerable and disadvantaged people seeking protection. It is clear that without an immigration database to record incidents in the claimant’s home countries, claims cannot be safely rejected as there is an absence of relevant information.

What happened to the Snowden’s Angels’ appeal hearing shows us that clear breaches of civil and political rights appear to be normalised in the city. This kind of treatment might give rise to lack of confidence in the adjudication of similar claims and give people the impression that this is just a mere procedural formality. It also raises doubts about fair and transparent appeal procedures. Crucially, it might also undermine the credibility of the Board itself in ways that it may not predict.

What is certain is that the impact of the judgement will be felt by other asylum seekers who will be processed in the same channels as part of the Unified Screening Mechanism.
Ajith’s appeal decision was reserved.

*not their real name. Opinions are writer’s own.