Lands Tribunal case Judgement
Court would not even stay proceedings with a Legal Aid Department (LAD) memorandum and statutory stay of 14 days. The court found.
“The Tribunal received A Memorandum of Notification of an Application for Legal Aid by the respondent dated 5 December 2016. By section 15(4) of the Legal Aid Ordinance, all proceedings in the action or in the appeal or in both the action and the appeal shall be stayed for a period of not less than 14 days. Even however if this Memorandum did not come so late, I would have ordered that this statutory stay be lifted in view of the fact of this case. There is simply no basis at all as to how the legal aid application could assist the respondent.”
The asylum seeker had no lawyer and LAD was intervening to assist him.
Take note that ISS-HK did not stand up for the refugee and cut off rent assistance to him for one room.
Again ISS-HK being on the landlords side.
Also the court was on the landlord’s side preventing justice to be seen and to be done on behalf of an indigent refugee and his wife.
The court has once again failed refugees.
This is another travesty of justice.
Hong Kong Government and Contractor ISS-HK refuse to pay rental assistance until Refugees find private sponsors to pay rent shortfall
All part of government scheme to deprive asylum seekers of their basic needs putting them at real, immediate and personal risk
Articles 3 and 5 HKBORO Violated by ISSHK and the Government
At a time when refugees are requesting an urgent increase in assistance because they cannot cope with rising prices in one of the most expenses cities in the world, access to government welfare is becoming more difficult. Refugees range from experienced veterans, who know how to obtain limited resources, to new arrivals, who are learning to cope with the multitude of challenges and failures of Hong Kong’s asylum sphere. In the latter group, unaccompanied, young, females often don’t enjoy a support network and might be unable to communicate in English or Chinese.
If ISS-HK cared about refugees, such women would be swiftly lodged in secure shelters to protect them from the risks and dangers of living on the streets. That wasn’t the experience of one African 24 year-old woman who escaped a trafficking ring in Fuzhou, China, to seek asylum in Hong Kong. She fears returning to her country because the criminals who tricked her into travelling overseas to work as a domestic helper would make an example of her as a warning to other women who dared to escape.
After filing a protection claim with the Immigration Department in July 2016, Elisa has been unable to rent a room for five months because the rental assistance was insufficient and her ISS-HK caseworker failed to identify and prioritize her vulnerability. With the help of a more experience refugee, she signed a tenancy agreement for a small 4500$ room in Sham Shui Po. Elisa would be responsible for half the rent and she relied upon ISS-HK to pay the landlord 1500$ as customary.
For the past ten years, refugees in need of rent assistance were required to identify a room/flat, negotiate the rent, possibly shared with others, and produce to ISS-HK a signed tenancy agreement, landlord identification, bank details and proof of ownership (to avoid unauthorized structures). Despite not speaking English, Elisa understood the requirements and adeptly met these conditions before approaching her caseworker with what she thought was a done deal. She was wrong.
Instead of praising Elisa’s success following five months of homelessness, her casework threw another challenge at her by demanding she find a “Rent Guarantor” to shoulder the surplus – or else there would be no rent assistance at all! The impediment was such that Elisa risked losing the room she secured with great difficulty and the security deposit already paid to the landlord.
For reason that Elisa does not speak English, her ISS-HK caseworker placed a phone call to a refugee friend of hers to press the demand for a Rent Guarantor. The ISS-HK officer (name withheld) warned that if Elisa failed to find a private sponsor, then the basic 1500$ in rental assistance would be denied, despite Elisa being a young and vulnerable female victim of human trafficking.
Vision First wonders if the caseworker’s conduct was lawful, although it was morally reprehensible and shameful.
Here the the transcript of the phone conversation the ISS-HK caseworker made at 10:56 am on 7 December 2016:
Caseworker: Hello … ISS officer … yesterday I explained to you she needs to write a letter saying who is helping her with the extra rent …
Friend: Yeah, I asked her. She says about that one, she don’t know … (how to get a rent guarantor)
Caseworker: How about the other people (roommate)? Do they know who is helping with the extra money (rent surplus)?
Friend: She don’t know anything about that one …
Jesse Wong: So she has to ask the roommate, right?
Friend: She needs to ask the roommate … since last night I cannot reach him, so that is the problem.
Caseworker: Because without the letter I … the case cannot be transferred to Kwun Tong (ISS-HK branch for Sham Shui Po where Elisa rented a room) … And we cannot pay money!
Friend: OK, so in this case we need to call you later when we get the guy … we need to understand the case first. At the moment she cannot write any letter as she don’t know anything about that (how to get rent guarantor).
Caseworker: … like this la … because I can only transfer the case after she writes the letter … so if you cannot find any friend, anyone to write the letter then the case is stuck and (ISS-HK) cannot pay money … you understand right?
Caseworker OK, so please tell her and the roommate to try to find anyone who can help her with the extra money … and then you call me back, OK?
Friend: OK, so I will talk to her
Caseworker: Yeah, yeah and then if she can find another friend, the she can come to Prince Edward (ISS-HK branch) to write the letter again, OK?
Vision First is outraged that ISS-HK is blatantly demanding that vulnerable refugees “find anyone who can help with the extra rent money” as a precondition to release the government assistance that the refugee community desperately relies upon.
Like many others, Elisa is a displaced refugee unfamiliar with Hong Kong and has no resident friends. It is shameful that the contractor of the Social Welfare Department presumes that Elisa can raise money for rent when she has no money, has no support network and is barred from working under threat of 15 to 22 months imprisonment.
It is highly regrettable that Elisa escaped trafficking in China only to be abused by the welfare system in Hong Kong. Here is a link to Vision First’s letter of 23 November 2016 to the Security Bureau on the disturbing problem of “Rent Guarantors”. We have a legal and moral obligation to treat refugees with respect and clearly certain caseworkers at ISS-HK fail abysmally in this respect.
On 30 November 2016, the lawyers of WRPK received a call from the Immigration Department inviting the Sri Lankan refugee to Castle Peak Bay Immigration Centre (CIC) to collect a “Form 8” recognizance document. Without such forms refugees are unable to approach the Social Welfare Department (SWD) for welfare assistance, or the Hospital Authority for medical wavers, as these documents are required by government departments to verify the ongoing status of asylum seekers.
What is highly unusual about this case, is that WRPK was denied a “Form 8” since he was released on court bail in October 2013, despite the best efforts of his legal team. For more than three years he suffered severe destitution and was unable to meet his most basic needs of shelter and food, as refugees are banned from working. Several legal letters seeking assistance in this respect went unattended.
In April 2015 Vision First emailed the Immigration Department informing that the delay was “causing WRPK preventable and unreasonable hardship”, for reason that he could not wait indefinitely for the court verdict before being issued with a recognizance form as he was destitute. A few days later Immigration responded, “WRPK may approach the SWD and, for the purpose of clarifying his non-refoulement claimant status, SWD will inquire our Removal Assessment and Litigation Section.” It sounded hopeful.
However, when WRPK approached the SWD he was again informed that without a recognizance form assistance was impossible. There is an inherent injustice in the asylum process when refugees are bounced between the Immigration Department and SWD by front-line staff who regurgitate unhelpful responses without considering the physical hardship of those seeking help. The protection system short-circuits when government officials thing, “It’s not my problem!”
Where criminal charges do not merit immediate custodial sentences, it is one issue to demand that refugees attend court while released on bail with government assistance, while it is another one to expect impoverished refugees to undergo lengthy prosecution without welfare. This procedural gap is inherently wrong. Such a failure amounts to a cruel and degrading treatment that indeed promotes “constructive refoulement”, that is, indirect policies that discourage refugees from claiming asylum and encourage voluntary departures from Hong Kong.
Vision First is disturbed by this case because the magistrate was repeatedly informed that the defendant had been denied welfare – but nothing was done. Time and again, the defense team informed the court it was the prosecution’s duty to inquire with Immigration the reasons why a recognizance form would not be issued – but nothing was done. Ignoring the predicament of a vulnerable refugee, the court adjourned the case repeatedly for three years, while WRPK remained destitute.
Further, Vision First is concerned that the magistrate Joseph To may have prejudiced WRPK rights by demanding that he attend court every two weeks, instead of the customary three months, pending the result of his USM claim. This exercise in futility is an avoidable waste of the court’s time considering that asylum bids may take up to a decade. To make matters worse, the magistrate set an otherwise quick adjournment to the last order of the day, forcing WRPK and his legal team to sit on the benches wasting government resources.