The Convention Against Torture has been extended to Hong Kong since 1992. Article 3(1) of that Convention provides that “no State Party shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture”.
Bound by this convention by choice – it should be noted - Hong Kong offers non-refoulement protection to claimants who subsequently enjoy an absolute right not to be removed pending the outcome of their claims. This protection is unequivocally coupled with social welfare rights, as claimants are not allowed to take up employment as they await decisions.
Under the enhanced torture screening system launched in December 2009, the Immigration Department has recognized 10 victims of torture – including four children, two born in Hong Kong (who would have been citizens in other jurisdictions). One successful claim in the previous system takes the total to 11 screened-in claimants out of 13000 in 21 years.
Hong Kong’s acceptance rate is .1% over two decades
compared to 20-40% yearly in developed countries.
The results are exceedingly eloquent. This risible percentage attests to a covert and unconstitutional Culture of Rejection that complies with the letter of the Immigration Ordinance (establishing an asylum process), while flouting the spirit of the Torture Convention (granting actual protection). The dislocation between administration and jurisprudence is complete and plain for all to see. How long will this duplicity last?
Until demonstrable changes are introduced and protection rates rise to, say, 5%, nobody will be under the illusion that goals other than protection motivated the ratification of this treaty. In the wake of such blatant, persistent hypocrisy, wouldn’t it be more honorable to rescind the Torture Convention? Why not withdraw gracefully, grant citizenship to existing claimants and slam the door shut? What is dysfunctional should be challenged and changed.
Regression is rarely desirable, but if the alternative is inflicting pointless suffering on thousands of refugees, then here is a bridge worth burning. Since UNHCR assessments were already legally halted, why not close down Immigration’s Torture Claim Assessment Branch? From a human rights prospective it would be praiseworthy.
In such an epochal shift, a few hundred Immigration officers would be reassigned to meaningful tasks; three-hundred-plus DLS lawyers would lose their bread-and-butter business; some NGOs would have to restrategize; and, crucially, Hong Kong’s acceptance rate would finally hit the dream target of zero-percent!
By contrast, asylum seekers would appreciate the frankness; thousands would get on with their lives; hundreds would seek refuge where the process is taken seriously. Meaninglessly interrupted lives would recommence; distraught families would plan reunions and their children would have a chance in life. At last, the shame asylum policies cast on our city would mercifully end.
With about 1200 new protection claimants arriving each year, Hong Kong needs a refugee hostel and welfare services for new arrivals. It is unthinkable that an international city, with 45 million visitors a year, offers asylum protection without first-step services for individuals with physical and psychological trauma and no support network. It is trite to say that refugees flee violent persecution to seek refuge in a safe place, arriving with few linguistic skills and no resources or connections.
Refugee homelessness was indeed considered by the government. The SWD Tender Reference SWD/T002/2011 states that, “The objective of providing the Services is to ensure that while … claim … is being processed … the Service User will not, during his stay in Hong Kong … be left to sleep on the street … be seriously hungry … be unable to satisfy the most basic requirements of hygiene.”
It is evident that these objectives are generally missed considering the destitution of new arrivals.
Immigration states, “Surrendered overstayer should bring along his/her personal identification documents … Determined on the merits of the facts of each individual case, a surrender may be arrested. He/she may either be detained or released on bail. He/she may also be released on recognizance pending removal from Hong Kong.” All releases are between 1 day and 3 months.
On 28 September 2012 International Social Service (ISS-HK) won tender G.N. 3332 and was allocated 396,877,881 HK$ for provision of assistance to refugees – including the prevention of homelessness and hunger. It is unclear whether little priority was given to homeless, hungry new arrivals, or whether funds aren’t efficiently deployed. It is a well-known fact that the welfare provision to new arrivals is a complete failure and has been so since 2006.
The conditions endured by new arrivals are appalling. Prevented from working, destitute refugees experience desperate situations. It takes 2 to 3 months to start assistance from ISS-HK and during this prolonged period, claimants have no place to sleep, nothing to eat and nowhere to wash or leave luggage. It is ludicrous that ISS-HK (recipient of 400M dollars) advises refugees to visit Christian Action and Vision First (recipients of 2M dollars). A travesty of this nature requires no commentary.
Current arrangements by ISS-HK are wholly inadequate to meet the needs of new arrivals.
Vision First urges the Social Welfare Department to assess the needs of new arrivals immediately upon release from Immigration offices or detention. The assessment cannot end with a referral to ISS-HK considering that 90 days will pass before assistance is given. There need to be services in this gap. When a person has no money, it is cruel to expect them to scavenge in a city they don’t know. It is the government’s duty to ensure that protection claimants are not left on the street.
The failure to put in place services for the first 24 hours and few weeks, has contributed to the degrading hardship suffered by new arrivals. These men and women suffer a plight that was not contemplated by those who extended the UN Convention against Torture to Hong Kong. Legal advocates would further stress that human rights enshrined in the Basic Law and Bill or Rights are infringed.
It is the government’s duty to ensure that new arrivals have food and shelter in the first month.
Vision First urges the government to investigate refugee experiences during the first month in town. Most pertinently, the government should ensure that new arrivals are provided with safe and clean lodging, as well as food and basic needs, without having to beg. It should be noted that refugees are in the most vulnerable state when they first arrive and are then in the greatest need of assistance. In this respect, it is a fact that ISS-HK does nothing for refugees in the first 2 to 3 months.
Vision First urges the government to urgently remedy this shameful situation.
Raquel Carvalho writes for West HK Stories on 19 November 2013
Ibrahim Adjouma, 43 years old, recalls the sea and the lakes of his hometown, Aného. He talks loudly and excitedly about the big and tasty fishes that he used to eat back in Togo. He hasn’t tasted anything to equal this since he arrived in Hong Kong, on 8th February 2005.
“When you protest, your life is in danger,” he says, explaining why he had to leave Togo, in West Africa. After demonstrations against the 2005 presidential elections, Ibrahim never saw his younger brother again.
However, he didn’t give up until his own life was also in danger. “I’m sure they killed him and they didn’t want any questions. A best friend of mine, who was a high official, called me saying that they had decided together to arrest me, torture or kill me. He said I had to leave the country soon.”
When Ibrahim got his friend’s call, he was in a mosque praying for the days to come. From that time on, he would need more courage than he could ever imagine. He travelled in his friends’ car, crossed a lake by boat, and hid himself in a village lost on the map until he got a passport and a flight ticket in his hands. He would land in Kong Kong, not by option but by fate.
A guesthouse in Chungking Mansions was his roof for a few weeks, but soon he ran out of money. The Star Ferry Pier became his new home for six months until he was arrested. “After four months in detention, because the Hong Kong Government didn’t recognize the asylum seek card certificate, I had to file a torture claim at the Immigration Department,” describes Ibrahim.
While he is still waiting, he holds a document that doesn’t allow him to work in Hong Kong. His wife, Ally, left Togo in 2008, after being threatened by the police, and she is now in the same situation.
According to an article published in the South China Morning Post on December 2012, there were last year 5,200 torture claim cases pending assessment at the Immigration Department.
Although the couple’s two children, Adam and Marian, were born in Hong Kong, they were not granted resident cards. “Their situation is not established. And if they go to school we have to pay fees,” says Ibrahim, worried about the next few years.
Without sources of income, the family relies on support from the International Social Service, which is commissioned by the Hong Kong government, and from charity organizations. “The government gives us 3.600 HK dollars for the rent. But how can we find a flat for this price in Hong Kong? We are now in a temporary shelter and we have to find a house, but we don’t have any money for the deposit.”
To have food on the table is also a daily struggle. “We get about 4.000 dollars per month for the family. But that’s what they write in the paper….We don’t get the cash, we have to go to a store and collect the food. The prices are not fair,” Ibrahim complains.
His greatest wish is to get a piece of the life he once had in Togo, where he was a businessman with a house and a backyard. “I don’t see any future for me. I am already 43. All I want is to change my children’s future.”
click above to play the video
For William*, a refugee recently recognized by the United Nations High Commissioner for Refugees (UNHCR), the journey to Canada has been rather unusual. What began as an escape from political persecution in his native Uganda had unfolded into six unexpected years of desperate inactivity in the streets of Hong Kong.
Deprived of legal status and protection, he briefly sought refuge on the upper-floors of Hong Kong’s infamous Chungking Mansions, living off what little he was given in government assistance. Prior to being granted refugee status, it had appeared as though he had virtually exhausted all his options. Several weeks dragged into months, and then years, of exhaustive rounds of screening procedures, only to be repeatedly rejected at the hands of Hong Kong’s foot-dragging bureaucracy. No matter how credible the evidence was, or how convincing his personal testimonies were, it seemed to have little effect on the application process. Barred from pursuing any form of work, he was left to depend upon government handouts and local charity – and, on the worst of occasions, he was even reduced to begging as he held onto the slim hope of one day reuniting with his family abroad.
Hong Kong has around 7,000 recognized asylum seekers, with the majority of applicants fleeing religious, ethnic, or political torture in Africa or South Asia. The unique combination of high acceptance rates of asylum seekers and lenient visa-entry policies has led to a large contingent of asylum seekers at Hong Kong’s borders. Upon gaining entry to Hong Kong, asylum seekers turn to either the UNHCR or Hong Kong government to make individual refugee-status or torture claims. While they wait for their claims to be evaluated (a process that can take an average of four or five years) asylum seekers become eligible for temporary government assistance, which consists of an accommodation subsidy of HKD $1,200 (CAD$168) per month, a bag of groceries every ten days, and occasional financial subsidies for transportation fees to attend government appointments.
The underlying hope for asylum seekers arriving in Hong Kong is that it will be a passage to a better life. For the lucky few who do manage to gain refugee status, many choose to relocate to Canada, Europe, or the United States, where they hope to reunite with their loved ones. Others have resorted to an even faster method – marrying a local in Hong Kong – as a way of bypassing the queue to becoming a recognized citizen. But, for those who are unsuccessful refugee or torture claimants, there is little chance of finding refuge elsewhere once their cases are rejected by the UNHCR or the Hong Kong government.
Despite being a signatory of the UN Convention Against Torture (CAT) since 1992, Hong Kong has one of the lowest refugee recognition rates in the developed world. Of the 3,110 torture claims that the Hong Kong Immigration Department has received since December 2009, only five out of 3,110 have been approved. This is well under the annual international average of 13.8% reported by the United Nations, and the recognition rates of 20-38% in other liberal democracies.
Another fundamental problem with Hong Kong’s refugee policies is that the local government has never signed onto the 1951 UN Refugee Convention. Although China has ratified the Refugee Convention, the treaty has never been extended to Hong Kong. Without a recognized refugee treaty, Hong Kong essentially lacks a sufficient asylum policy. The Hong Kong Immigration Department is under no legal obligation to process or admit asylum seekers requesting refugee status, and instead refers all refugee claimants to theUNHCR for evaluation. There are 1,243 claimants currently under the UNHCR system, and another 4,230 under the government-administered torture screening procedures.
Part of the difficulty in the life of an asylum seeker is finding a way to prove the legitimacy behind a refugee or torture claim. Most developed countries have legislation in place to provide asylum seekers with an idea of how long such screening procedures may take. The situation in Hong Kong, however, is the exact opposite. Many economic migrants attempt to manipulate the system by prolonging their stay, and do so by appealing their applications and finding illegal temporary work that is difficult to identify and prosecute before eventually returning home. As for those that cling to the hope of being approved by the UNHCR, asylum seekers may choose to refrain from engaging in illegal work in a desperate bid to avoid jeopardizing their chances of being formally recognized as a refugee. The end result is a refugee policy that has aided those with fraudulent claims who work illegally, while punishing those who present legitimate claims and abide by local laws.
At first glance, the official policies seem reasonable: in theory, the laws are meant to ensure that asylum seekers and refugees are only offered work that cannot be done by a Hong Kong resident. Government officials have repeatedly expressed concerns that, if Hong Kong were to ever sign onto the Refugee Convention, it would become overwhelmed by thousands of illegal migrants posing as asylum seekers who are looking to take advantage of local prosperity and lenient entry-visa policies. Yet, by this same token, Hong Kong is desperate to avoid having a situation reminiscent of the ethnic violence that emerged from the Vietnamese asylum seeker crisis of the 1980s. The other alternative, currently embraced by the local government, is a legal system that offers the bare minimum to those most desperately in need.
Asylum seekers are confronted with the unenviable choice of either living off government subsidies, or working illegally at the risk of being prosecuted with severe penalties. Without the right to work, asylum seekers are caught up in a cycle of economic dependence, and forced to rely upon the meager resources offered by the UNHCR and Social Welfare Department. In more extreme cases, asylum seekers have even resorted to committing suicide in order to avoid being imprisoned or deported to a country where they could be susceptible to torture.
As Hong Kong attempts to grapple with this moral dilemma, it finds itself without a comprehensive strategy in addressing its asylum seeker crisis. The current approach, albeit appearing to be sympathetic, has failed in its commitment to adopting fairer screening procedures. Many of the anxieties about attracting illegal migrants would be resolved if asylum seekers and refugees were equipped with proper legal protections and the right to work in Hong Kong. But, as the months and years pass by, Hong Kong’s asylum seekers continue to wait in limbo.
An April demonstration by asylum seekers and their supporters added to the pressure on the Hong Kong government to produce a workable policy for screening refugees.
The South China Morning Post reports that a resident living in an 80 square foot cubicle took the government to court over insufficient welfare assistance. His subdivided room cost 1700$ a month, but his rent allowance is only 1440$. The amount was adjusted last year for the first time since 2003 and 11,800 households are demanding the government offer support that relates to market prices.
This court action is of great interest to refugees who are seeking High Court leave to judicially review the Social Welfare Department’s failure to meet their basic material needs. It is noteworthy that the Legal Aid Department approved the above case that has similarities with the filings Vision First is currently coordinating. We are hopeful that the High Court will intervene where the Legislative Council failed.
Refugees are disappointed that the Legislative Council failed to take timely action in their rescue. Promises were made at the LegCo Panel on Welfare meeting in July that another session would be held two months later and that an enhanced package would be urgently formulated. Nothing happened. Four months later not a word has been heard from the administration that continues studying the obvious.
Conversely, two weeks after lodging applications for judicial review, there appears to be widespread interest in a process that bypasses administrative lethargy to seek court judgment on whether refugees suffer destitution through government malfeasance. The question is simple: Does the current welfare package prevent destitution? Evidence proves the answer is “No” and urgent change are required.
It is reported that ISS-HK is unnerved by the impending legal attack. They know they dropped the ball. Legal Aid is contacting ISS-HK for full disclosure on each applicant. Questions are asked how refugees were expected to survive on so little. Some case workers are offering guesthouse rooms to the homeless. Others are meeting clients at 10am to search for rooms for 1500$, sometimes 1800$.
The rope of retribution dangles from the scaffolding.
The noose will be tightened around the neck of those who failed to carry out their professional duties. Files will be produced in court to show how refugees suffered: rent unpaid, extortionary utility bills, lack of clothes and household items, eviction notices, gold necklaces pawned, photos of refugee ghettos, countless complaint letter to ISS ignored, unanswered, never passed on to the Social Welfare Dept.
2014 will witness the collapse of the SWD-ISS Construct of Oppression. We shall suffer no more!
The wrecking ball will carry KISSES FROM VISION FIRST!
click above to find out what motivates us
High Court Judge Stuart-Moore is lauded as a hero in the refugee community. He reversed the conviction of a Vision First member who was charged with, “Taking employment while being a person in respect of whom a removal order is in force”. There Bangladeshi refugees were leaning against sheets of corrugated metal by an abandoned stone house, when police pounced and arrested them for working.
They might have been scavenging for material to strengthen their government funded shacks. ISS-HK settled them, with complete disregard to their health and safety, in appalling ghettos in Ping Che. They had very good reasons to look for something better. They became easy targets for questionable police tactics. Perhaps these officers pursued quick and easy arrests and … Shatin Magistracy readily obliged.
The judgment HCMA 745/2012 states some interesting points of fact and law:
“The facts could hardly have been more straightforward. These arose from the arrest of D1, D2 and two others at the scene of an apparently derelict metal shed close to an abandoned stone house. It was alleged that the four men, all originally from Bangladesh, were removing sheets of corrugated metal and taking them away from the shed in the course of employment.”
“Straightforward though the case was in the factual sense, the way it has been handled in the past reveals a complete shambles. It may be that the prosecution and the courts (Shatin Magistracy Court) must together share the blame for this. I shall not attempt to identify where the blame lies …”
“The learned magistrate decided that “there was simply no good reason for them to be near a lamppost, except to work for money”. She accepted as truthful the observation evidence given by the police and she rejected the claims of the defendants that they were only in the area because “they each had their own reason to move away from their current place, either because of increase of rent or personal preference.”
“Hence, D1 and D2 together with D3 were convicted after the magistrate had referred to the relevant law and had drawn an inference that employment in the legal sense had been established.”
“As if it were not bad enough already that three defendants (D1, D2 and D3) had been convicted on the same evidence that D4 had been acquitted, the case now took a further turn for the worse as it entered the appeal stage.”
“Such a situation can only lead to a deeply felt grievance on the part of D1, D2 and D3 as they will almost certainly realise that, if their trial had come before Mr David Cheung at Shatin Magistrates’ Court, they would have been acquitted with D4.”
“In neither situation, however, would the standard of proof required in a criminal trial have been achieved as possible or even probable guilt is not the same at all as guilt about which there is no reasonable doubt and as to which the tribunal of fact is able to feel sure.”
“Each of these appeals is allowed. The convictions of D1 and of D2 are quashed and so also are the sentences which were imposed on them.”
click above to see why refugee might need metal sheets
“More than fifteen refugees lived here for years until three months ago. When ISS stopped paying rent, the landlord kicked everyone out!” said our guide as we entered this abandoned refugee ghetto. In a desolation reminiscent of the 2004 Tsunami, the only resident was a barking dog quickly chased away. Where did everyone go? Surely this ghost slum teamed with life before it trashed and destroyed.
The psychology of criminal offenders is predictable: when caught, escape and try to destroy traces of wrongdoing. The committal of offenses is only viable in secret. When exposed, criminals severe relations, run for cover and hastily dismantle the enterprise. Just as in a CSI show, evidence can be found in draws, suitcases and clothing pockets. The documents we collected prove a fruitful collaboration.
“I want to help these people because they have nowhere to stay. There is nothing they can rent for 1200$” is often the justification slum lords offer when their motivation is questioned. That would be true, if they acted with compassion. Inspecting abandoned sites like this one, there are reasons to believe that landlords are only after easy tax dollars, paid without due diligence by ISS-HK.
Each room still expresses the character and personality of its departed tenants. There are guitars, bicycles, stereos, tool-boxes, TV sets and unopened bottles of vodka. There are clothes, blankets and shoes strewn around – too many belongings for a homeless person to cart around. There are documents, personal photos, school books and DVDs scattered everywhere. People left in a hurry!
Every item speaks of shattered hopes and broken dreams of owners who left in despair.
Vision First shares the burden for this suffering. Hadn’t we exposed refugee ghettos, these residents would have been here to greet us. One cannot speak of collateral damage in humanitarian work. It breaks the heart to witness the harmful effects of hopeful advocacy. A process that attempts to improve collective wellbeing should not bring additional suffering to any single individual. That’s just not right.
Considering the ample government resources, financial and professional, why weren’t contingency plans made to avoid this crisis? Should human beings suffer because ISS-HK admits guilt by clamping down on its own slums? The damage is done and offenses are being documented. Why do refugees have to suffer twice, first when segregated in slums and then when thrown out in the streets?
Who’s in charge of this crisis? Will somebody step up and show leadership?
click above to see what happens when ISS-HK drops a refugee ghetto
In and around 2009 there were over 10,000 refugees seeking protection in Hong Kong. By early 2013 the number had halved and today it is close to 4,000. After exposing over 50 heavily-inhabited slums, we wonder how ISS-HK settled the additional 6,000 service users they previously managed. It is reasonable to speculate that a third of them were forced to live in refugee ghettos that have since closed down.
This is a distant location: over a half hour bus ride from Kam Sheung Road MTR and a half hour walk through junkyards, up a hillside to the border of Lam Tsuen Country Park. It is hard to believe that refugees moved so far out to secure rooms cheap enough for rent assistance. But again they were exploited. Rooms this small in animal sheds, in such primitive conditions, should cost 300$, not 1200$
According to our guide, there was a time when over twenty refugees lived in this ghetto. His wife and daughter lived here for three years, until they were suddenly removed to Indonesia without his consent and against his will. The loss of his loved ones, the painful separation from his baby girl caused a distress that Immigration policies never take into account. The right to family union is often callously violated.
Stories are still told about a winter night when seven police vans were deployed to this ghetto to quell the anger against a ‘crazy’ landlady who had pushed it too far. She charged more than refugees could afford for rent and utilities. When bills were not paid on time, she cut water and electricity leaving everyone in the dark and forcing families with young children to put up with unbearable conditions.
On another night the entire community of twenty refugees moved to the Pat Heung police station and apparently spent the night there, as they refused to stay in dark, cold huts any longer. The police had to mediate and talk some sense into the slum lady who failed to understand her hardline tactics were bad for her illegal rental business. Merciless exploitation is encountered in every ghetto to different degrees.
click above to see where 20 refugees lived in a remote hillside ghetto