The 1951 United Nations Convention Relating to the Status of Refugees describes a refugee as a person who “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country...”
John* sits, slightly slumped, in an armchair fiddling with his basketball shorts as he speaks in heavily accented English. “When I first came here, I slept at the Star Ferry for five days,” he says. “It was very cold but I didn’t have a choice, I had nowhere to go.” John is one of the 2,400 asylum seekers currently living in Hong Kong who fled their home countries in Africa and South Asia to escape torture and persecution resulting from civil war, political autocracy or religious and ethnic cleansing. Some arrive empty-handed, others with whatever they can gather before they flee, but eventually even those resources run out and they too must seek help to survive – and that is just one of the many problems they face.
Currently the Hong Kong Government has no standardized system to assist refugees or asylum seekers, nor any legal obligation to do so. Hong Kong is not a signatory to the 1951 UN convention or the 1967 Protocol Relating to the Status of Refugees which ensures refugees are given safe asylum and the same rights as any other foreign local resident.
As a result most asylum seekers, and some refugees, rely on charitable organizations and NGOs to survive in Hong Kong while they wait for their applications to be processed. But the wait itself is also the source of a problem – the approval process is often long and drawn-out and in the meantime asylum seekers face detention by the immigration department for overstaying their visas.
Such difficulties are what NGOs like Amnesty International, Refugee Concern Network and the Society for Community Organisation are fighting while lobbying the HKSAR to sign the 1951 convention and provide assistance to this group of vulnerable people.
Because HK is not a signatory to the convention, all applications for refugee status must be made to The United Nations High Commissioner for Refugees (UNHCR) office based in Yau Ma Tei. When a state government does not have Refugee Status Determination (RSD) procedures, the UNHCR’s fills the void, processing and accordingly approving or rejecting applications. But the discomfort is not over even if asylum seekers become official refugees – they still await re-settlement, usually in third countries.
Those tortured in their home countries can, however, apply to the HKSAR for protection under the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), which the government is a signatory too. As with the convention for refugees, under CAT, which is binding on the HKSAR, those seeking protection cannot be sent back to their home countries. But they can still face long application delays and possible detention.
Detention
A major issue asylum seekers face while in Hong Kong is detention as overstayers. The situation is, as many NGOs have pointed out, simply contradictory: people seeking asylum and/or protection against torture should not be detained. However, the HKSAR, not having signed the refugee convention, does not recognize these people as anything other than visa transgressors.
While the government is technically right to arrest those who overstay their visas, it does appear the lack of discrimination between illegal immigrants and asylum seekers is illogical: the two groups have very different motivations. Also, as Hong Kong is a signatory to the convention against torture, it should not detain those who have sought protection under CAT, yet it has done so. Last year incensed NGOs, led by the Refugee Concern Network, held a candlelight vigil against the practice.
“For people who have faced persecution in their home countries, especially by state governments, being detained can be an incredibly frightening thing. Their only experience of government detention is negative, and so the detention can often be a difficult experience,” says Sarah Cornish, of the Refugee Concern Network, and also the assistant manager at the Christian Action Refugee Service Centre in Chung King Mansions.
Annie Lin of the Society for Community Organisation also believes this practice makes innocent people suffer: “The government is criminalizing people who are here to seek asylum,” she says. Ben*, an asylum seeker originally from Africa, says he understands the reasons behind the HKSAR’s move to detain people: “It’s the law to detain overstayers, I understand that,” he says. “But I have not committed any crimes, I am a law-abiding person, I’ve only overstayed my visa because my case with the UNHCR is still pending. I don’t want to end up in detention, because I have not done anything wrong. Being detained for no reason is the kind of treatment I was running away from in
my country.”
Jonathan Harland is currently working on his Masters in Social Work at HKU and has spoken to asylum seekers about their various stays in detention. Although he rarely heard about overtly negative experiences, the overwhelming response was that the detention period resulted in boredom, as detainees spend their time inside unoccupied. This means a lot of time to contemplate their situation, the events back home, and, says Harland, in many cases families left behind. “That is probably the worst part, they sit and think about it all the time and it can be really stressful,” he says.
Lack of Assistance
Another difficulty many asylum seekers face is lack of assistance from the government and the UNHCR. The United Nations body used to cater for the most vulnerable but no longer do so, says Karine Mirzoyan, UNHCR representative. “Because of the financial difficulties and funding shortfall in May 2006, the UNHCR stopped financial assistance to the asylum seekers,” she says. Some may still get some assistance, but many also attend the Chung King Mansions Service Centre, says Cornish.
The centre is one of the few places in Hong Kong asylum seekers can receive cash for travelling expenses, food, rent and other necessities. The centre also distributes food and clothing, as well as providing free medical check-ups, and a shelter space that can accommodate about 15. It is the only one of its kind in the city and, as Cornish points out, relies solely on donations to keep running.
Some government assistance is available but obtaining it is arduous and relies on many factors. Usually if an asylum seeker approaches the social welfare department, he or she is told to come back with immigration recognizance papers (usually only available after a detention). The department will then refer the claimant to the International Social Service (ISS) who could help them with food and money for rent. But even if one does receive assistance, it is only about $2,000 a month and the food provided every 10 days must be picked up from a designated shop which offers no choice of what people get to eat.
A similar situation applies to medical help, with hospitals requiring those without identity documents to pay for services. “If you are sick, and do not have recognizance,” says John, “you must live with your pain. If you try and get help, you might end up in detention and no one wants that.” While medical waivers can be applied for, they also require papers from immigration, and not all asylum seekers will have those.
Certainly those who have filed claims under CAT are slightly better off, thanks to lawyers Mark Daly and Wai Yang Ho who took the case of one CAT claimant to court. Daly and Ho argued that under CAT the government had a legal obligation to ensure no degrading treatment was inflicted on the claimant while he was waiting on his application process. Starving and freezing can be considered degrading treatment and, as a result, the government should provide assistance to CAT claimants. The government finally acquiesced, gave help to that particular claimant and now to some others.
The assistance, however, is doled out on a case-by-case basis, so there is still no comprehensive system allowing people to receive benefits from the government. Which is also true of those who arrive with children, wishing their education to continue – according to the security department permission is entirely up to the education and manpower bureau and is again determined on a case-by-case basis. According to UNHCR, refugee children have been allowed to attend government schools since 2005.
Assistance perhaps might not be such a thorny issue if asylum seekers and refugees were allowed to work. But as they cannot under the law, they must sit idle and rely on others to survive. For people like Ben and John, life means watching the news at the Chung King Mansions Service Centre, and relying on charities and others for their next meal and a place to go to pass the time. Both say that to sit idly, when they are used to working and earning money, has made them feel worthless. It is no living situation for anyone to be in.
Comprehensive determination procedures
Refugee problems might be more easily solved if HK signed the 1951 UN refugee convention and created its own RSD procedures. Such procedures were in place, according to Daly, for Vietnamese refugees in Hong Kong, but were discontinued in 1998 as they were Vietnamese-specific. The UNHCR now handles all applications, but has been criticized for long processing times and a lack of transparency in decision-making procedures. By its own admission, the UNHCR says the longer processing times have come from an increase in applications and a shortage of staff to deal with them.
“UNHCR is just not financially equipped to deal with the cases,” says Daly. “Only 10% of their cases result in a positive outcome, and that seems an exceptionally low number when you compare it to other developed countries like Canada and the US. This number then results in people believing that the other 90% are all bogus claimants, that they are just economic migrants. I think it’s an outrageous leap of logic to make. If there’s a fair and efficient system to work out who were real refugees it would solve everybody’s problems. Its not in anybody’s interests to have cases pending for years with people working illegally to survive.”
As Lin points out, it’s a matter of extending what is in place for CAT claimants to cover asylum seekers as well. Although that would need more manpower, it would grant asylum seekers equitable procedures, assistance and support while in HK and would separate the real cases from those simply trying to manipulate the system.
It would seem the UNHCR is in agreement with the NGOs: “UNHCR is incessantly advocating the Hong Kong Government create a comprehensive asylum procedure which would address most of the requirements for an independent assessment under CAT,” says Mirzoyan.
The issue however remains that HKSAR is reluctant to sign the refugee convention, even though China and the other SAR, Macao, are both signatories. A representative from the security bureau explained: “Hong Kong is small in size and has a dense population. Our unique situation set against the backdrop of our relative economic prosperity in the region and our liberal visa regime makes us vulnerable to possible abuses if the convention were to be extended to HK.”
The government may be worried about a magnet effect if it provided RSD procedures and assistance to those seeking asylum but Lin and Daly both dismiss the concern. As Daly says: “Why would you choose to come to Hong Kong when other countries like Canada can offer you a better life?” But regardless of that, he believes “people in need should be assisted, for any country it’s the moral and legal thing to do”.
Daly believes it’s a blot on Hong Kong that the SAR will not provide for these people. He says, “Hong Kong wants to be this world-class city, and I think it’s a pity that, while we strive to be the best in every other field, we aren’t doing that in human rights terms – why aren’t we striving to be the best in that here? What message is that to your children? We strive to barely meet minimum standards…”
* names have been changed. |
