Patsy Mok writes for South China Morning Post on 16 April 2013
A torture claimant received a temporary work permit from the Immigration Department just a day before he is to lodge a legal challenge against the department in the city’s top court today. The Sri Lankan is the first torture claimant to be allowed to work in the city. His lawyer, Mark Daly, said a letter from the Immigration Department arrived at the law firm yesterday, saying his client was granted “temporary permission to work on the [immigration] director’s discretion”. Daly described the news as “miraculous” as his client was due to apply for leave to seek to fight in the Court of Final Appeal for his right to work.
Daly said the man would pursue his case, despite the temporary permission. “The right to work as a right as opposed to discretionary permission [by the director of immigration],” Daly said. “Also the test case involves other applicants, such as refugees who cannot be resettled and who have been stranded here for many years. The treatment [of not allowing them to work] by the director of immigration has been cruel and quite inhumane.” Daly did not believe the director’s action was likely to open a floodgate, as only three of the refugees he represented had had their torture claims accepted. The department said last night it had received 12,409 torture claims up to March 31, with six substantiated and 4,348 still being processed.
It had only received one application for permission to work from a substantiated claimant – the Sri Lankan. The Sri Lankan man was one of five refugees who lost their battle for the right to work in both the Court of First Instance and the Court of Appeal. He arrived in Hong Kong in December 2000 but has not been allowed to work. The court was told he suffers from severe depression. In November, the Court of Appeal ruled that the five could not invoke the Bill of Rights Ordinance to argue they had the right to work in the city. This was because they had no right to enter or remain in Hong Kong. But the judgment said the immigration director could exercise his discretion to let such people work.
(Kam Tin Outreach) Nobody can survive without income month after month.
Patsy Moy writes for South China Morning Post on 13 April 2013
A torture claimant seeking asylum in Hong Kong is believed to be the first person to win an appeal case since a new process was put in place in 2009. Mark Daly – lawyer for the Sri Lankan involved, a Tamil – said the case “lends some credibility to the process”. The Torture Claims Appeal Board had received 1,335 appeals by the end of last year. Daly said: “He was taken completely by surprise by the decision. It has been so long. He has been here in limbo for 10 years. He was really emotional and was not able to say much.” Last month, another Sri Lankan man became only the second torture claimant to have his application approved out of more than 12,000 the government has received since 1992, when the city began applying the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Human Rights Monitor director Law Yuk-kai welcomed the latest verdict, but feared the Immigration Department would launch a legal challenge against the decision by the board.
Daly said his client, who arrived in 2003 and is now in his 30s, received a letter from the board on Thursday giving the good news. The Security Bureau said yesterday the board’s decision was final under the Immigration Ordinance, but it can be challenged through judicial review in court. While it means he will no longer face repatriation, Daly said his client’s rights in Hong Kong remained “minimal” and his future was still unclear. “The independent appeal board was set up to hear a fair independent appeal. If the director of immigration rejected their claims, claimants have the right to appeal to this board. It is an important procedural safeguard. “However, there had not been any successful appeal [before this case] and a lot of people were getting concerned about the fairness of the system. So the message about this successful appeal is important.”
Daly said the appeal board accepted that his client had established a genuine case as a torture claimant after considering all available information, which indicated that Tamils were at risk of torture at the hands of Sri Lankan state security forces. The appeal board – a panel of former judges and magistrates – is part of enhanced torture-screening mechanisms introduced by the government following a 2008 case in which the Court of First Instance ruled the then screening process failed to meet high standards of fairness. The Immigration Department received 1,809 torture claims in 2010, 1,432 in 2011 and 1,174 last year. In the same period, the board received 109, 460 and 766 appeals, respectively. Of the torture claims the department received, 606 (33.5 per cent), 437 (30.5 per cent) and 244 (20.8 per cent) were lodged by former foreign domestic helpers, according to written replies to the Legislative Council by the Security Bureau on Tuesday.
Vision First is glad to report that Thursday a Srilankan Tamil was accepted by the Torture Claim Appeal Board that overturned Immigration rejection at first instance. He is a single male who sought protection in Hong Kong nine years ago. He was represented by Barnes & Daly and was very surprised by the good news after all but giving up. This torture survivor is the third to be recognized since the Torture Convention was extended to the territory in 1992. The first claimant to be accepted was a Tamil in May 2008 and the second was another Tamil in March 2013 - five years after the previous one. Yesterday an Appeal Board adjudicator surprised the refugee community by overturning a Torture Claim Assessment Section rejection. This significant decision marks the first time the Appeal Board as not confirmed a prior Immigration rejection. Our advocacy efforts shifted the spotlight on claimants’ deep dissatisfaction with an appeal system that has – until today - systematically rubber-stamped every Immigration dismissal. Could this mean the administration is responding to public criticism of an effective zero-percent acceptance rate? Is change in the air and will more victims be recognized? There is no shortage of strong, substantial cases among the city’s 4300 claimants. While we acknowledge the second success in three weeks, it is far too soon to cry victory! Vision First has advocated robustly against the government’s culture of rejection, a culture that permeates many departments and punishes claimants with unnecessary hardship. Why not ask yesterday’s winner about waiting nine years for recognition? Why not ask how he likes Hong Kong and how he survives without the right to work? He might concede that his circumstances are better than others, as single men can endure suffering that families cannot, but his has been a harrowing journey of depression and despair. And today has his life really changed? After the surprise of this validation wears off, the realization will surely follow that successful claimants remain beggars without rights to residence or work. So effectively nothing changes in their daily life of emergency rations and limited rental assistance. The other question is: why Tamil + Tamil + Tamil? Here’s some background information from Wikipedia. “The Sri Lankan Civil War was a conflict fought on the island of Sri Lanka. Beginning on 23 July 1983, there was an intermittent insurgency against the government by the Liberation Tigers of Tamil Eelam (the LTTE, also known as the Tamil Tigers), a separatist militant organisation which fought to create an independent Tamil state called Tamil Eelam in the north and the east of the island. After a 26-year military campaign, the Sri Lankan military defeated the Tamil Tigers in May 2009, bringing the civil war to an end.” With over 100,000 deaths, it was one of the longest wars in modern history. Today the vanquished Tamil are not assured that the Srilankan government will honor peace and reconciliation agreements. Hong Kong government realizes that high-profile LTTE supporters will probably face torture, or worse, if repatriated. Ultimately three wins are a drop in the ocean. It does nothing to alleviate the thirst for justice that outrages the remaining 4,300 torture claimants. On 8 April 2013, Immigration sent Vision First the latest statistics for torture claims. The letter states that in 21 years 12,409 torture claims were received. The letter was issued 8 April and does not include yesterday’s result. Attention should be given to the misleading statement that, “a total of 5 torture claims were decided as substantiated”. In actuality, it refers to last month’s acceptance of one Tamil family: a father, a mother and three children (two born in Hong Kong) who lodged one, not five separate torture claims. The letter further states that from December 2009 Immigration rejected 3,110 claims and 3,330 cases were withdrawn by those who gave up. It is our opinion that among the latter, the majority had lost hope of ever receiving a fair screening or independent appeal. Massive rejection rates are an apparent strategy to snuff out hope in the heart of refugees. For a comparison with these results, let’s analyze the Australian “Asylum Statistics 2012” – in 2012 Australia granted protection visas to 44% of refugees who arrived legally (p.10) – in 2012 Australia granted protection visas to 71% of refugees who arrived illegally by sea (p.13) Australian protection visa rates (regular arrivals) in 2012
Outreach work is full of surprises and always rewarding. By hitting the road and visiting distant villages, we learn how refugees struggle against a culture of rejection that wishes they had never arrived. Leaving behind bustling Kowloon and a heavy downpour, we met sunshine and welcoming villagers in the Pat Heung hills, outside Kam Tin. On a carpeted floor in a specious second-floor apartment, it felt unexpectedly as if we were in the Pakistani tribal lands. First one, then two dozen, then over thirty torture claimants came to hear the news Vision First brought. It was the first time anyone present had met refugee workers other than ISS case-officers. These folk don’t go to Kowloon. They don’t visit other NGOs. And they sure don’t seek church support. It was only men, but we were told there are mothers and children too, who had stayed home because of the rain. The news of the March of Protection had reached their community and we were invited to speak to these representatives of a couple hundred torture claimants. We sat on the carpet and introduced Vision First, warming up to these total strangers. It isn’t hard to explain to a Pakistani audience why we demonstrate against a zero-percent acceptance rate of torture claimants.
Since 1992, out of 13,000 claimants, of which they probably are a majority, not a single Pakistani has been recognized as victim of torture. How can that be possible? Compare this 0% protection of Pakistanis with Australia’s 74% in 2012 (Asylum Statistics 2012, p. 10) In other words, forty-percent of Pakistani who claimed asylum in Australia last year were considered deserving of international protection. They didn’t have to appeal, nor seek judicial reviews that would still end up in rejection in Hong Kong. Are they different refugees, more honest, more credible, more deserving than those who reach our city? Their nationals are regrettably labelled as economic migrants and fortune seekers. They are hastily dismissed with a comment like, “These people are not real refugees!” After hearing this often enough, even they might start believing it. On the contrary, there are at least seven legal grounds for them to raise a claim that engages Hong Kong’s protection obligations. You can start counting: 1. Basic Law, 2. Bill of Rights, 3. Statute Law, 4. Common Law, 5. Customary International Law, 6. Torture Convention and 7. ICCPR – each of these legal instruments guarantees the right not to be subject to torture or cruel, inhuman treatment. Make your pick!
We have to reserve our judgement. It is not up to us to determine whom the government should protect and whom they should remove. We cannot say who has substantial reasons to fear torture and who is simply paranoid. We cannot homogenize their identity and reasons to seek asylum without studying their cases. We must resist the facile temptation to label in wilful ignorance. The truth is that we have been conditions so deeply by government propaganda, cultural bias and sheer misinformation, that resisting judgement takes more than a slight effort. Vision First is of the view that every torture claimant must be considered a victim – entitled to non-refoulement protection – until excluded by an informed, fair, effective and efficient screening mechanism. Think of it this way. If a system fails to identify bona-fide refugees – despite having enhanced the process over a decade – then would you like to be subject to its investigation? History teaches many interesting lesson to those who care to learn. For example, how is this torture screening different from the Spanish Inquisition? That witch hunt probably had a zero-percent protection rate, once inquisitors were set on purging society from those unwelcome for reasons other than those for which the investigation was established. Hong Kong government’s propensity to reject isn’t very different. It doesn’t matter the evidence, thirteen-thousand torture claimants have been condemned to the stake. Organizing resistance to this institutional injustice is the reason why Vision First is being called, “the watchdog of refugee rights”.
Thirty Pakistani torture claimants learn about refugee rights
This editorial was published in South China Morning Post on 6 April 2013
The government has been reluctant to even screen refugee applicants for genuine cases since the ordeal of handling tens of thousands of Vietnamese asylum seekers in the 1980s. They fear that to do so might reopen the floodgates. The job is left to the office of the UN High Commissioner for Refugees, from whose decisions there is no appeal, and which has limited resources. As a result, resettlements do not keep up with the annual influx of about 2,000 claimants. Thousands now live in limbo, forbidden to work legally and are dependent on charity.
Refugee rights activists are understandably excited about a ruling by the top court that the government cannot rely on a UN agency to decide whether someone is a bona-fide refugee, and not simply someone seeking a better life, and must assess the cases fairly and independently. Allowing a challenge by three African men, the court also said decisions on whether to deport refugee claimants must be subject to judicial review. The screening system is now expected to be revised, although officials say the ruling will not affect the policy of not giving asylum to anyone. Instead, people granted refugee status in Hong Kong are resettled elsewhere. Nonetheless, as refugee advocates say, the ruling brings justice and hope to those seeking asylum here.
That should prompt the administration to reflect on its stand. The post-Vietnam-war experience may dictate caution. Indeed, while Hong Kong is a signatory of the international convention against torture, it is not a signatory on the status of refugees. But that is no reason to turn away genuine cases. We are an affluent society with the capacity and resources to do more for them. As a community we have a well-earned reputation for generosity such as disaster relief in times of dire human need. We rightly take pride also in being a humane society with safeguards for human rights. It is time to be a little more flexible and less mean-spirited to others who turn to us for help.
[Vision First note]To clear any lingering doubts about why the Immigration Department is now obliged to take over refugee screening from UNHCR, you may read the relevant quotes from FACV No 18, 19 & 20 of 2011. Please click “Read more” to bring into sharp focus this new reality.
Joyce Man writes for South China Morning Post on 7 March 2013
The idea of HK exempting itself from international law that opposes sending people to face possible abuse must be refuted, refugee body says
The principle of not sending a person to a place where he may be persecuted is “beyond doubt” customary international law, the UN refugee agency says. The United Nations High Commissioner for Refugees weighed in yesterday at the hearing of three African men who were making their last attempt to challenge the way the city vetted refugee claims. The trio argues that the government must assess the applications itself rather than passing the responsibility to the UNHCR. “[The principle] is, at minimum, customary international law,” Gerard McCoy SC, for the UNHCR, told the Court of Final Appeal. “The matter, we say, is simply beyond doubt.” The UN agency said it seemed that the Hong Kong government wanted to contend Asian countries were somehow exempted, McCoy said. “This has to be refuted. The idea of a Hong Kong or regional opt-out from this fundamental cornerstone is inconceivable.”
The barrister said the UNHCR would reserve the right to argue that the principle was peremptory, that is, one so fundamental that no state may depart from it. Benjamin Yu SC, for the government, said it could let someone stay by exercising its discretion on humanitarian grounds, but it was not obliged to do so. Hong Kong is not a signatory to the UN Convention Relating to the Status of Refugees, and is therefore not subject to obligations under it. The government does not take applications for refugee status but instead refers them to the UNHCR. The three men – in their 20s and 30s from the Democratic Republic of Congo and Republic of Congo – point to problems in the UNHCR’s assessment process, including that its decisions are immune from judicial scrutiny. They also say the principle to which McCoy has referred, known as non-refoulement, has become a norm from which no state can depart.
The UNHCR was not a party to the proceedings until recently. Late last year, against the government’s objections, a judge allowed its application to join, McCoy said outside court. He told the court that the agency operated only under a mandate of protection from the UN. Any immigration decisions, such as whether to deport a person, were for states to make and no country could pass its legal responsibilities to the UNHCR, he said. McCoy also said the agency’s decisions were not susceptible to judicial scrutiny. All three men, who have not been identified by name, earlier had their applications for refugee status rejected by the UNHCR, as well as their appeals. The Security Bureau said it would not comment as the legal proceedings were ongoing. The hearing continues before Mr Justices Patrick Chan Siu-oi, Roberto Ribeiro, Robert Tang Ching, Kemal Bokhary and Anthony Mason.