Hong Kong's refugee shame

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Our long-broken asylum system is on the brink of the most important changes it has ever seen. To coincide with World Refugee Day on June 20, Samuel Lai and Mark Tjhung explore the hope in the darkness. Photography by Calvin Sit

A ramshackle hut, thrown together out of scrap metal and waste wood, gives out a long groan as Yousuf grimaces to wrench open the door to his home. A smell of urine and faeces lingers in the air, a result of the shack's lack of proper sewerage, which makes it a breeding ground for rats, pests and insects. This barely inhabitable place is exposed to the elements – heavy rain could clearly cause electrocution and the tree which rests up against the hut is vulnerable to lightning strikes – and, as we walk the dark corridors within, the iron sheets which make up the structure clatter ominously. "The roof fell down on my head the other night when I was sleeping," says Yousuf, a Bangladeshi man who calls this grim haven his home. "Imagine what it's like when there's a storm."

We are in Ping Che, a rural area on the northern edge of the New Territories which has been transformed over time into a shanty village for asylum seekers. And, indeed, Yousuf is not alone in calling this home. More than 150 other asylum seekers – mainly Bangladeshis – live in the area, some for a shorter period than Yousuf's two-year stint; others, for much longer.

The interiors of one of the shanty houses in Ping Che
The interiors of one of the shanty houses in Ping Che

"These dirty and dangerous shacks are unfit for living in," says Cosmo Beatson, executive director of Vision First, an NGO that advocates rights for people seeking protection. Despite his assessment, this shack houses 12 Bangladeshi asylum seekers, all of whom have fled their native home for fear of torture. Yousuf, for example, was the victim of blindfolding, kidnapping and severe beatings by terrorists, before threats were made on his life. "The terrorists came to my home demanding money under the threat of death," he says. "I reported the matter to the local police but they took no action. I was forced to depart my country and I came to Hong Kong. If I go back to Bangladesh, I will be killed."

The hundreds in Ping Che – a mere fraction of the more than 4,000 people presently seeking asylum protection in Hong Kong – are just the tip of the iceberg. There are other shanty towns scattered across the SAR, from Nai Wai to Kam Tin and Pat Heung, housing hundreds more asylum seekers from across the world, trapped in a system that has given them few other choices.

This lack of choices, however, may soon change. In recent months, there have been glimmers of hope for asylum seekers – developments which may prove to be the first step in helping people trapped in these conditions into a better life.

A shameful system

To fully appreciate the prospects for change, it's necessary to understand the dire situation asylum seekers in Hong Kong currently endure. When a person comes to Hong Kong and is registered as either a refugee claimant or a torture claimant – a distinction we'll come to later – they become eligible for a monthly accommodation subsidy of up to $1,200, which is paid directly to the landlord from ISSHK, the government-contracted NGO responsible for the welfare payments; a bag of food every 10 days; and occasional financial assistance to cover transportation to government appointments. It's a level of assistance which the Social Welfare Department says is designed 'to provide support which is considered sufficient to prevent a person from becoming destitute while at the same time not creating a magnet effect which can have serious implications on the sustainability of our current support system'.

Part of the difficulty many asylum seekers face is that the assistance doesn't, they say, in practice, quite meet this level, particularly when coupled with the fact that asylum seekers are not permitted to work. "Such levels of assistance are insufficient for daily survival," says Aleta Miller, executive director of Hong Kong Refugee Advice Centre (HKRAC), an NGO that provides legal services to refugees. "The rental allowance is grossly inadequate in the city's housing market. The amount of food is insufficient. Asylum seekers are not allowed to work. At the same time, they do not receive enough aid to maintain a basic standard of living. As a result, they are forced into situations of poverty and deprivation."

Consider that Yousuf's rent is $1,400 a month, $200 more than his housing allowance. Vision First also estimates asylum seekers must find at least $800 per month extra to pay for water, electricity, gas cylinders and other cooking facilities, topping-up food, and rent and medical expenses – basic necessities not covered by the in-kind assistance. That $800 is difficult to come by when you can't work – and the penalties imposed on asylum seekers caught working are significant: a maximum of three years in prison.

Scribblings on the walls inside a Ping Che village house
Scribblings on the walls inside a Ping Che village house

Beatson tells the story of Kasun, a Sri Lankan asylum seeker, who risked working as a restaurant dishwasher to obtain medication for his pregnant diabetic wife. He was caught and sentenced to 15 months in jail. Ten days later, his wife's waters broke and she fell unconscious for hours. By the time she reached the hospital, her womb was infected and the baby's life hung in the balance. "They are forced into chronic, desperate poverty out of which there is no pathway but that of working illegally," says Beatson. "Doesn't this policy effectively criminalise asylum seekers?"

Or, as Yousuf puts it: "If we work, we are doomed. If we don't work, we are doomed."

The waiting game

The conditions faced by asylum seekers when they arrive in Hong Kong are tough, to say the least. And then there's the waiting. While neither the UNHCR nor the government have been able to provide us with any average application processing times, we've heard of refugees waiting anything from under a year to eight years.

The bottom part of this fridge doesn't work; the freezer compartment now functions as the fridge
The bottom part of this fridge doesn't work; the freezer compartment now functions as the fridge

One of the fundamental problems in Hong Kong's system is that the city never signed the UN's 1951 Refugee Convention. "Our unique situation," says a government spokesman, "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 1951 Convention were to be extended to Hong Kong." This basically means that the Hong Kong government has no legal obligation to vet refugee claims. Instead, it refers such claims to the UN High Commission for Refugees (UNHCR).

The UN Convention against Torture, however, does apply to Hong Kong. The convention forbids states to return people to their home country if there is reason to believe they will be tortured.

In practice, it means Hong Kong possesses two parallel protection systems – refugee determinations administered by the UNHCR and a separate torture claim path, overseen by the government. People are able to apply for both at the same time. At present, there are 1,243 claimants under the UNHCR system and 4,230 claimants under the torture system.

Under each path, there are different outcomes for successful claims. If people's claims are accepted under the UNHCR path, they are then resettled to another country as a refugee – a process that may take several more years. Successful claimants under the torture system merely receive the guarantee that they will not be deported to the country where they face danger. "Right now we don't have a fair and efficient process," says Kelley Loper, director of the LLM in Human Rights Programme at Hong Kong University. "We have this dual system that doesn't make any sense."

By 'fair', Loper may be referring to the fact that the government has a near zero recognition rate for torture claims. Since the authority implemented an enhanced screening mechanism for torture claims in December 2009, only five out of 3,110 have been recognised. "The Hong Kong government is operating a refugee policy of rejection, not protection," says Beatson. "Countless cases have been hastily rejected, no matter how credible the story, hard the evidence or outstanding the lawyer."

But an Immigration Department spokesperson has a different view: "Under the current mechanism, claimants have every reasonable opportunity and all the necessary support to establish their claim. The only reason that a torture claim is rejected is that there is no substantial ground to justify that the claimant will be in a danger of being subjected to torture."

Inside one of the tiny Ping Che village spaces
Inside one of the tiny Ping Che village spaces

Indeed, some critics have questioned the effectiveness of the screening system, particularly in cases where determinations have had severe consequences. Muhammad Adrees, a Pakistani asylum seeker, chose to commit suicide over deportation after his torture claim was rejected by the government in October last year. Before his death, he explained to the immigration officers that he faced a serious risk of violence if repatriated. Fearful of violence in Pakistan, he chose to end his own life.

In terms of recognition rates, the UNHCR's determination process isn't much more lenient on refugees either. On average, nine out of 10 asylum applicants are rejected – an alarmingly low number compared to other countries, far below the global acceptance level of around 30 percent (taken from 2011 figures). "Since the UN has diplomatic immunity, its decisions cannot be challenged by the courts in Hong Kong's judicial system," says Loper. "It does not have an independent appeal process either."

Indeed, back in 2009, the Law Society and Bar Association noted that 'the UNHCR assessment process, if it was amenable to the jurisdiction of the Hong Kong courts, would not meet the high standards of fairness and would most likely be declared unlawful'. And given the developments of the last few months, they were quite prophetic words…

The gamechangers

'Landmark' developments. 'Seismic' shifts. These are the terms refugee advocates are using to describe how Hong Kong's asylum landscape has changed since late last year. That's because of two recent landmark legal cases – the first in December called Ubamaka and the second in March named C. Without labouring on the legal intricacies involved, these decisions had the joint effect of requiring the Hong Kong authorities to protect asylum seekers who face the threat of 'cruel, inhuman or degrading treatment or punishment' (CIDTP) if returned to their native country – a much broader ground than any torture claims (and a claim that some have said may be open to Edward Snowden) – and to determine a person's refugee status independent of the UNHCR's assessment. The upshot, according to human rights lawyer Mark Daly, is that the two parallel, half-baked screening mechanisms must now be fused to 'set up a unified system, a one-stop shop for all three claims: torture, CIDTP and refugee claims'. And this is, according to refugee rights advocates, a good thing.

"These are landmark developments in refugee rights' protection," says Aleta Miller of the HKRAC. One of the main points that has refugee advocates upbeat – which is another dry yet vital legal point – is that the decisions made by the government would be subject to review by the courts, a quality currently lacking from the UNHCR determinations. Continues Miller: "The government will be forced to take responsibility. Just by having it in the government's system gives us access to the proper processes of being able to lobby and to advocate. It gives us more tools for accountability."

The government is yet to commit to the fused system. However, it has suggested that it will be studying the judgement and seeking legal advice on the way forward. But despite what is widely seen as a positive development for refugees, there remains a huge cloud in their future under a fused system – and it's best summed up by what some have termed the 'culture of rejection'.

The culture of rejection: can it change?

"Let's forget about it. If Hong Kong doesn't help me, it's all over. I thought I had come to a better world. I imagined a community of support – but the truth is nobody cares about me. Nobody can help me and I'm too weak to survive by myself. I might as well be dead." These are reportedly the last words of Awil, a Somali asylum seeker. He said them to a friend just a day before slipping into the coma which eventually took his life. After his passing, that friend wrote the words on a blog for Vision First's website.

Awil arrived in Hong Kong after his country's civil war destroyed everything he had. Prohibited from working and provided with insufficient in-kind assistance, he scraped through to survive and often suffered from malnutrition. His landlord cut his water and electricity because he had no money. After nearly two years of mere survival and indefinite waiting, he eventually lost hope in our city's asylum system. Awil died as a 52-year-old in limbo – a victim of what Vision First's Cosmo Beatson calls the 'culture of rejection'.

This 'culture of rejection' refers to Beatson's view that the government deliberately sets up roadblocks against asylum seekers – the denial of the right to work, insufficient allowances, lack of medical support – to make their life impossible while they wait indefinitely, sometimes up to eight years, for their torture claims or refugee status decision. As Yousuf puts it when we visit him in Ping Che: "I'm stuck here. There is no way out."

One of the residents in Ping Che
One of the residents in Ping Che

"Asylum applications are unreasonably delayed, while claimants are punished by various forms of hardship to convey the message that further arrivals are not welcomed," says Beatson. He also says that, since 2010, there have been more than 4,500 withdrawn torture applications. "The government might argue this happened because they knew their claims were bogus, but the reality is that thousands have lost hope in Hong Kong's system."

Not all refugees subscribe to the theory of the 'culture of rejection'. Many, however, including Loper, Miller and the official government line, agree that, in setting the asylum policy, the authority is cautious of pull factors which, as Loper says, '[the government] assumes would attract waves of asylum seekers'.

In changing this long-entrenched philosophy, advocates almost universally agree that the public has a role to play. Says Miller: "The government will be more susceptible to change if the people in Hong Kong demanded it."

The public perception

"Opening a floodgate to refugees would be a big mistake," cried the title of an article written by scholar Victor Fung in China Daily last year. "The majority of refugees come to Hong Kong to dig gold," accused a feature story in 2011 from East Week, a local weekly magazine. In a way, these stories sum up the Hong Kong public's wider perception on refugees – a largely negative perception fuelled by previous experiences with the Vietnamese boat people, suggestions (like the above) that most refugees are economic immigrants, and just a basic lack of accurate information. (See our public sentiment feature for some of the thoughts from Hongkongers on the streets.)

The mother and child are some of the 150-plus living in Ping Che village
This mother and child are some of the 150-plus living in Ping Che village

While the general attitude is still quite negative, though, there are signs of a small shift in opinion. Chinese media had scarcely reported on refugees and asylum seekers in Hong Kong before. But when more than 500 of these people took to the streets in April to protest against the current asylum system, media such as Oriental Daily, Apple Daily and TVB covered the demonstration. Says Beatson: "The reports were quite positive – and that's encouraging."

Miller also sees perceptions changing significantly within the younger generation – an incremental development, she believes – together with more education for the public about the refugee situation, as having the potential to dramatically change attitudes in the wider community. "What we find is that a lot of the time, people simply don't know," she says. "When we tell people what the situation is like for refugees in Hong Kong, they are quite shocked."

The future hope

Even after the recent landmark developments, asylum seekers in Hong Kong by no means face an easy existence. But the current refugee landscape is about as bright as it has ever been for those seeking protection in our city.

Indeed, refugee advocates and human rights lawyers are optimistic about the future, seeing the recent cases as providing momentum for a number of further incremental changes. Lawyer Mark Daly is currently pushing to give asylum seekers the right to work through strategic litigation. The HKRAC recently made a submission to the UN Committee on Economic, Social and Cultural Rights, which will review Hong Kong's human rights record. The UNHCR is currently negotiating with the government on the transition of refugees screening responsibilities. The Law Faculty of HKU is working with Vision First to promote human rights consciousness among today's law students and tomorrow's asylum lawyers. Says Miller: "I am feeling really optimistic. We have a real opportunity here. If we can create this movement, then somebody will have to listen to us."

Which brings us back around to Yousuf. After two years, even living in exceptionally difficult conditions in Ping Che, for him there remains a certain hope for the future. "Even if we are refugees, I think we have the right to live. I think we have the right to do something for our future," he says. "Let us live."

Editorial note: for the protection and privacy of the individuals involved, all the names of the asylum seekers and refugees quoted in this story are pseudonyms


Volunteer at:

Vision First
An NGO advocating for the rights of refugees as well as raising awareness of their plight. They provide facilities, care and education programmes and organise fundraising events for asylum seekers. visionfirstnow.org

UNHCR
The UN High Commissioner for Refugees in Hong Kong provides both fundraising support for its operations worldwide as well as, under current arrangements, processing refugee claims. In addition to donating funds for this organisation, the UNHCR also seeks clerical, communications and events volunteers. unhcr.org.hk

Hong Kong Refugee Advice Centre
A legal aid provider for asylum seekers looking for protection under the UNHCR. The organisation seeks volunteers for various fields, from casework and fundraising to IT and design. hkrac.org

Christian Action
This Christian-based organisation runs comprehensive service centres to provide refugees and asylum seekers care and development education as well as offering professional advice and assistance from case workers and counsellors. christian-action.org.hk

 

Attend:

Speak
Christian Action, UNHCR and Hong Kong Refugee Advice Centre join forces on World Refugee Day in this fundraiser, an evening of live music, drama and photography presented by Hong Kong asylum seekers and refugees and celebrating their unique, brave journeys as survivors of some of the world's most harrowing darkness.

Thu Jun 20, 7pm, The Fringe Club, 2 Lower Albert Rd, Central, 2716 8810; christian-action.org.hk/worldrefugeeday_SPEAK, $600.

Telema!
In this musical production, asylum seekers from a number of African states like Congo, Rwanda, Togo, Cameroon, Uganda and Kenya take to the stage to tell their tales of triumphing in the face of struggle and hardship in a foreign land.

Thu Jun 20, 7.30pm, The Vine Ctr, 29 Burrows St, telema.eventbrite.hk, $150.

6th Refugee Film Festival
This week-long festival features six movies – including the award-winning opening film, Pray the Devil Back to Hell – including a fascinating array of stories and perspectives of refugee's lives.

Jun 20-26, Broadway Cinematheque, 3 Public Square St, Yau Ma Tei, nhcr.org.hk/filmfestival.

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