Vision First finds it unacceptable that delays by the Immigration Departments in opening non-refoulement claims might compel new asylum seekers to risky behaviour, if not criminal activity, to secure food and shelter. As an example, we report the case of Jenny (not her real name), a woman made vulnerable to sexual exploitation by the long wait she is enduring to access welfare services.
Jenny’s first trip outside her country was a long flight to Guangzhou where she was promised an attractive job in a garment factory. Jenny was experienced. She had supervised a team of seamstresses in a textile factory in her country. However, when the sweet promises of a local ‘employment agent’ allured her to a higher salary in China, she accepted.
The agent arranged Jenny’s passport and promised her parents a cash gift when their daughter arrived in China, as a token of the remittances she would soon be sending back to improve their lives. With so many clothes labelled with “Made in China”, it wasn’t hard for the 24 year-old to believe that a rewarding job in a modern factory awaited her.
The agent accompanied Jenny on the flight to Guangzhou and then to Fuzhou where she met with Chinese counterparts who paid her 70,000 RMB for the ‘new hire’. It wasn’t long before Jenny discovered there was no factory, no job and no salary. Instead, there was an older Chinese man who would take Jenny as his ‘wife’ for three months in sexual slavery. Jenny had been duped and trafficked. Today she fights back tears explaining that other women were given to several ‘husbands’.
In April 2016 the traffickers arranged her travel to Hong Kong to renew her China visa. The handlers held her passport, but apparently failed to control her day and night, thus providing Jenny an opportunity to escape. Jenny finally confided in a stranger who turned out to be a member of the Refugee Union. Jenny then sought asylum in Hong Kong. Traffickers are known to kidnap and torture escapees who naively return home where police protection is unavailable.
It’s been four months since Jenny applied with the Immigration Department and still her Unified Screen Mechanism (USM) claim has not been duly opened. As of consequence, despite being issued with an Immigration Recognizance Form, Jenny has been unable to access support from the Social Welfare Department. Her name is allegedly not on the computer database that SWD officers check to establish eligibility for assistance.
Jenny explained to Vision First that Immigration officers seemingly delay opening her asylum bid because an interpreter cannot be found. She is not alone in lamenting what we argue is a blatant protection failure. It is indeed hard to accept that for Jenny, and others known to Vision First, Immigration officers maintain there are no French interpreters available. There are over 80,000 French nationals in Hong Kong. Surely a number of them must be seeking a living as registered interpreters.
Protection fails when the Immigration Department’s inability to promptly provide interpretation causes Jenny, a victim of trafficking for sexual exploitation, to live on the streets, where she begs for food and shelter. Her vulnerability is further augmented by her feeling compelled to engage in the very behaviour she fled to seek protection in Hong Kong in the first place!
It is regrettable that Jenny is in crowded company in this “life-before-asylum crisis” because the Immigration Department postpones the opening of new asylum claims, presumably hoping that claimants will just give up and leave?
In addition, Vision First is troubled by a second crisis directly connected to this one, namely the frequent rejection of applications before asylum seekers are offered a chance to obtain free legal advice, as required by law. The following reason is often given to would-be asylum seekers whose bid is rejected: “Your written signification does not give a general indication of your reasons for claiming non-refoulement protection in Hong Kong, being reasons that relate to an act falling within the meaning of torture, BOR3 and/or persecution risk.”
One should be reminded that Hon. Judge Saunders argued in the FB Judgment that: “It is only sensible that the (Immigration) Department should take a broad and liberal view of statements of risk or danger upon return to their country of origin, made by any person who does not have the right of abode in Hong Kong. To insist upon a particular formula being expressed by a person would be contrary to the high degree of fairness required by Prabakar, and would be tantamount to sitting back and putting the person concerned to strict proof of the claim.” (HCAL 51/2007)
There are “no magic words” to be use by claimants seeking asylum. No special words are necessary in the first letter that triggers Hong Kong Government’s international obligation towards refugees.
However, we cannot but question the Immigration Department’s treatment of vulnerable asylum seekers who are denied timely protection, and thus vital welfare, despite being in an obvious state of destitution – their risky behaviour being proof of such immiserating conditions.
The law is not always right, but the magic words argument is clear, and in these cases it appears to be blatantly violated.