My friends call me Manesh. I came to Hong Kong as a refugee in 2007 when the problems of asylum rolled over my like a black tide and drowned my hopes. This dark sea never lets me swim back to the surface and took away my dreams for a better future. Every day of asylum destroys a piece of me and my life loses meaning.
I suffered this pain for eight years and I cannot find a solution. I cannot return to my country, but also I cannot live here. So I feel that I am slowly dying. The memories of what I was before are swallowed by the darkness. I was a businessman, a political organizer, a loving father, a happy husband and a devoted son – everything was taken away from me.
Now I struggle to hold on to some dignity in asylum. It is not easy as humans need hope to support them through suffering and I have little left after eight years. The Hong Kong Immigration rejects 999 out of 1000 claimants and makes everyone feel unwanted and unwelcome. Refugees don’t get enough welfare and are not allowed to work, which turns us into professional beggars.
Refugees want a simple, safe life. We need security so that we are not worried that Immigration will send us back. We need jobs because work is important for human life – everyone understands it. Without work a person becomes sick, but we are not sick. Without work a person does not have a life, but we are not dead yet.
Truly I tell you, refugees live life in darkness. We never talk about any business or some big topic. We only talk about small things that give our lives very big problems like a cancer. For example, we don’t have enough money to pay rent. How to pay the landlord? We don’t have enough money for food. How to buy what we need to cook? We don’t have money for school books and uniforms. How to educate our children?
Here I tell you, refugee life is like prisoner life. We can walk the streets but we are trapped. We see people work, shop and enjoy, but we cannot earn money. If we do part-time jobs but are afraid of arrest and prison for 15 months. Then who will take care of our family? Some refugees fall into crime, but honestly what choice do we have? When they go to prison they are happy they don’t have to pay rent. Even somebody will cut their hair!
With respect I ask a question: Why for so many years the human rights for refugees were silent? Why nobody look at our condition of living and help to understand it is wrong? Today we hear a few voices from the same people fighting for refugee rights, but the community is silent. Are there two kind of human beings in Hong Kong, some with human rights and some without? I respectfully request that the government reconsider the policies and really protect refugees.
There wasn’t an empty seat in the courtroom as members of the Refugee Union attended the emergency proceedings to stop the hasty removal of a hapless South Asian refugee by the Director of Immigration. Flanked by two stern-looking Immigration officers in blue uniforms, a bewildered Mr. Q stooped apprehensively in a High Court defendant box. A dark oversize jacket draped the worries of a man who would have been deported three days earlier were it not for the timely intervention of a pro bono legal team.
It is likely that Mr. Q was profiled as undesirable by Immigration officers when he arrived at Hong Kong International Airport on 23 December 2014. He was refused permission to land and taken into custody. He subsequently lodged an asylum claim and was detained at CIC under Section 37ZK of the Immigration Ordinance that prescribing, “A claimant may be detained … pending final determination of the claimant’s torture claim.” The issue is: How long can a refugee be lawfully detained?
Trouble erupted in Mr. Q’s life after he participated in district elections in his country of origin and was assaulted and threatened that, “All your family will be wiped out if you don’t change political party.” As the 45 year-old family man was unwilling to fight back, the forsaken road of asylum beckoned and he fled to Hong Kong. On 9 March 2015 Immigration rejected his asylum claim at first instance and a troubled Mr. Q sought the assistance of the Refugee Union.
“He has a strong case and is afraid of being deported”, explains Arif of the Refugee Union, “He called me from CIC. He said that if he goes back [his country], his opponents will kill him. Immigration rejected his case and on 18 May arranged a plane ticket to remove him. He was very scared. It was a big emergency. I am very thankful to the lawyers who helped us immediately.”
Alerted by the Refugee Union, solicitor Chris Lucas and Barrister Robert Tibbo swung into action to counter manoeuvres by the Director of Immigration aimed ostensibly at expediting Mr. Q’s removal. Considerable weight should be given the fact that the lawyers had met the refugee during a pro bono legal visit to CIC on 6 May 2015, but nevertheless Immigration flagrantly ignored such legal representation to fast-track the rejection of Mr. Q’s appeal and his removal in a matter of days. Such rushed arrangements are sufficient to raise suspicion on this case.
An attentive audience followed the two-hour Habeas Corpus hearing that was opened by Barrister Tibbo’s statement: “The Director of Immigration fast-tracked the removal of my client. He has ridden rough-shod over the constitutional rights of a refugee who was warehoused in CIC, as if in an Australian off-shore processing centre. My client was detained for five months instead of being released five weeks after lodging a Non-Refoulement Claim as prescribed by law.” It was submitted that pursuant to the Ghulam Rbani Court of Final Appeal Judgement, Immigration failed in due diligence and gave rise to conduct that is now subject to a damage claim.
The legal grounds briefly state that the Director of Immigration, K.K. Chan cannot lawfully detain a claimant when it becomes clear that the determination process cannot be concluded within a reasonable time. The Ghulam Rbani judgment sets this at five weeks, not the five months of Mr. Q’s ongoing detention. Mr. Tibbo put to the court that the discretion to release a refugee must be exercised after five weeks, or the subsequent detention period becomes arbitrary and therefore unlawful.
Counsel raised a host of problems, including: looking at the Questionnaire it appears that Mr. Q did not receive proper legal representation inside CIC; he did not have access to resources and country of origin information; he attended an oral hearing without a lawyer; he did not have a lawyer for the appeal; the appeal rejection contained fundamental mistakes; the decision was not interpreted in his language; CIC officers prevented Mr. Q from faxing documents to his lawyers; and, a copy of Immigration’s Notice of Decision had not been provided to the legal team, despite formal request made to the Director of Immigration.
“Given the complexity of his claim,” Tibbo submitted, “My client should have been released at the five week mark. Instead he was discriminated. Many other claimants have been released. Why not him? He was treated differently from others released on recognizance, many of whom are in this courtroom. The Director of Immigration cannot detain arbitrarily and cannot do this without good reason. My client should not be removed from Hong Kong pending the exhaustion of his legal rights, including a judicial review of the rejection of his Non-Refoulement Claim and a damage claim for unlawful detention.”
The Honourable Judge Kent Yee presided fairly and extended the stay on the removal order until 29 May, indicating that he intended to give this matter further thought before issuing a written judgement on 26 May 2015. The defence team was encouraged by the extension that granted time to apply for Legal Aid and successfully resist Immigration’s attempts to hastily remove Mr. Q arguably in violation of his right to asylum.
Vision First fearlessly reports on incidents that place under the spotlight practices adopted by various Government bodies which include the Director of Immigration, Security Bureau, Social Welfare Department and Hospital Authority.
Examples are asylum policies resulting in an effective zero percent acceptance rate, welfare failures, institutional discrimination and abuses of power by those in authority. It is unfortunate that enormous and entrenched distrust continues to widen between refugees and Government authorities, with officials often failing in their duties prescribed by law.
Government propaganda and uninformed media reports often depict refugees as abusers of the asylum process accusing them of exploiting the system for personal gain. Such generalisation is simply untrue for asylum seekers who fled torture, ill-treatment, death threats and persecution to seek protection from Hong Kong’s Government.
It is increasingly clear that the secretive walls of the Director of Immigration’s Castle Peak Bay Immigration Centre (CIC) conceal apparent unlawful conduct. On 6 May 2015, Vision First arranged a visit to CIC to provide free legal advice to refugees in relation to asylum claims, the legality of such procedures, conditions and legality of detention and to secure their release from arbitrary deprivation of their liberty
The pro bono legal team comprising Barristers Mark Sutherland and Robert Tibbo, together with their instructing solicitors and interpreters, paid a visit to CIC. This is what transpired. One refugee from Africa had reportedly been detained in CIC for over three and a half months whilst the assessment of his “first tier” non-refoulement claims was underway with all the interviews so far being conducted within CIC. His next interview was due to take place the following day, 7 May 2015.
Another refugee from Africa had been reportedly detained for over a month and only that morning had been handed a set of blank Supplementary Claim Forms by The Duty Lawyer Service (DLS). This was presumably prompted by the prior lodgement of a non-refoulement claim. The assessment of this refugee’s claim had not even started and a lawyer not yet assigned to him by DLS.
A further refugee from South Asia reported that he had attempted to argue his own Appeal without a lawyer and had experienced a detention period of seven months.
Troubled by his findings of lengthy periods of detention, Barrister Mark Sutherland asked to see the supervising Immigration officer. During the course of an hour, three Immigration officers of differing levels of seniority appeared but could not shed any light on the seemingly unlawful detention of the refugees.
Finally, the Superintendent of CIC, a Mr. W.S. Kwong, the highest ranking Immigration officer responsible for CIC attended and agreed to a meeting with the pro bono legal team during which serious concerns were expressed as to the legality of the detention of the refugees. Sutherland asked Mr. Kwong: “Are you aware of the Ghulam Rbani case?” Mr. Kwong replied words to the following effect: “I have never heard of it. It’s not my department.”
Superintendent Kwong was unaware of this landmark and legally binding decision of the Court of Final Appeal case “Ghulam Rbani vs. Secretary for Justice” (FACV 15/2013), wherein it states:-
“Once it became clear that the CAT claim had to run its course, it would have been obvious that no decision to make a removal order could have been arrived at within the maximum period of detention permitted under section 32. Applying the 3rd Hardial Singh principle, steps should then have been taken without delay to effect the appellant’s release.”
Put simply, if an asylum seeker has filed a claim for non-refoulement protection, he cannot lawfully be detained and must be released forthwith.
Vision First is of the view that the Director of Immigration, Mr. K.K. Chan, should call for an immediate review of the detention status of each and every inmate currently held at CIC. Sutherland invited Superintendent Kwong to see that such a review was undertaken as a matter of priority. The result is awaited.
Based on this legal visit, Vision First is satisfied that there is sufficient evidence to merit an independent investigation of the apparent disregard by the Hong Kong Government of the principles enunciated by the Court of Final Appeal in Ghulam Rbani. We shall leave it to our readers to draw their own conclusions.