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.
The Refugee Union published the Social Welfare Department reply to a petition requesting the urgent increase in welfare last enhanced in January 2014. Regrettably, the SWD informs that there are no plans to adjust welfare to interim inflation and skyrocketing rents after three years.
The SWD alleges that the assistance meets basic needs with 1500$ in monthly rent, 40$ a day for groceries and 200$ transportation, with zero provision for clothes, shoes, shaving cream, household detergents, reading glasses, haircuts, mattresses, blankets, cooking and kitchen ware, furniture, diapers, school supplies and transportation, credit for phones, dental service etc. The SWD also maintains that refugees require a single roll of toilet paper per month.
Magnet Effect and Mathematics
Vision First believe there is little substance in the justification that refugees should be denied anything more than a very basic assistance “so as to avoid a magnet effect.” As there is no evidence of any such “Magnet Effect”, it appears this claim is a wholly speculative allegation. Indeed, the Security Bureau and SWD in their own paper issued to the Legislative Council on 8 June 2015 admitted that they have a duty to meet the basic needs of refugees in full. Thus, the Magnet Effect would only apply to extra assistance, above and beyond meeting basic needs.
“The Social Welfare Department (SWD) is charged with the responsibility to provide the assistance programme through non-governmental organisations (NGOs) since April 2006. The objective of the assistance programme is to ensure that non-refoulement claimants will not, during their presence in Hong Kong, become destitute. The assistance programme is not intended to provide them with extra assistance than is necessary to meet their basic needs, so as to avoid any magnet effect which may have serious implications on the sustainability of the assistance programme and on our immigration control.”
In reality, the stringency of immigration controls has not correlation with the well-being of refugees who already sought the protection of Hong Kong Government. The Immigration Department may learn from the past, but the SWD should not raise border integrity as an excuse to oppress local refugees. Further, numbers have raised manifold since aid started in 2006, suggesting that welfare is not the reason why refugees travel here. Denying adequate levels of welfare is just a policy to oppress refugees in order to encourage constructive refoulement. After six months’ of deliberation the SWD confirms that:-
“The Government considers that the current provisions are sufficient to meet the basic needs of service users and has no plan to change the arrangement at this stage.”
However, the Refugee Union’s petition reports that welfare fail to meet the basic needs of virtually all refugees. Almost without exception the assistance by SWD and ISS-HK falls short of rental amounts, utilities, food and travel money, besides lacking the above necessities. In this regard, the suggestion that refugees in need of more assistance should provide justification to ISS-HK is frankly nonsense, as the assistance requested is to meet basic needs, and not to get something above and beyond the costs of such needs.
ISS-HK caseworkers treat requests for such basic assistance with typical rejection. Refugees are actually not asking for more assistance above and beyond meeting their basic needs. They are instead asking ISS-HK and the SWD for full assistance in order to meet basic needs – the difference is crucial. There is even greater fallacy in the advice to seek assistance from ISS-HK to locate suitable rooms because the price of subdivided, cubicle and coffin rooms is close to double the rental allowance. Thus 10,000 refugees evidently “have difficulty in so doing” and caseworkers stand powerless before landlords, despite non-binding promissory letters from rent guarantors, local or overseas. Obviously landlords deem such letters non-bankable. Finally, while it is correct that tenancy agreements reflect the terms and conditions agreed between tenants and landlords, it is wholly unreasonable to expect destitute refugees without the right to work to “ensure he fulfills the responsibilities thereunder”.
Vision First notes that under Hong Kong law and their own public statements, the Security Bureau and SWD have obligations to meet all basic needs of all refugees in Hong Kong. That is a legitimate expectation the refugee community relies upon. There are no exceptions under the law. It is disturbing that the conduct of these departments’ violates refugees’ rights by putting them at real and immediate risk. The Security Bureau and SWD have failed in their fiduciary duty towards destitute and highly vulnerable refugees.
SWD representations are false
The SWD’s reply to the Refugee Union’s reasonable demands is a false representation to refugees and the public that SWD meets the basic needs of protection claimants. In fact, the SWD arbitrarily violates the fundamental human rights of the vast majority of refugees in Hong Kong.
In our view, this conduct is unconscionable and unlawful as the SWD stubbornly refuses to meet refugees’ basic needs and further states that it will not review the current unsatisfactory levels of assistance. The next step will be a legal challenge.
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.
More news at the following links:
APPLE DAILY: 匿港期間獲義助 斯諾登為難民發聲 斥港府違人權
APPLE DAILY: 接濟者讓出僅有床位
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