June 20, 2009
June 20th is the World Refugee Day, and Amnesty International (AI) takes this opportunity to look into the plight of refugees and asylum seekers in Hong Kong, and see whether we have done what is expected of us as a progressive society, and a world class city in this side of the world.
The governments of China and Macau SAR have adopted the Refugee Convention, yet Hong Kong continues to lag behind and fails to have the Convention extended to Hong Kong. Many asylum seekers and torture claimants who come to Hong Kong face many difficulties starting with the lack of a clear policy of the Hong Kong government in dealing with them and their situation, up to such concerns as not receiving any assistance financially or any other support, while their application is being processed. Many of them face arrest and sometimes, even deportation, even while their applications are being processed by the UN High Commissioner for Refugees (UNHCR).
In dealing with asylum seekers and refugees, the Hong Kong government often has to attend to and process claims under the Convention against Torture, in the event the asylum seeker files a claim. The government of Hong Kong has signed and ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and other international human rights documents, including the International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR), etc., which assert that the rights enshrined shall be applied to "everyone", not only its "citizens" or "nationals". However, the refugees/asylum seekers in Hong Kong are not entitled to such legal protection. They are dealt with either under the Immigration Ordinance (Cap. 115) or the immigration guidelines--both of which lack the special measures necessary to adequately facilitate their applications. The ordinance and the guidelines likewise fail to take into consideration the special status of these people. They face detention or deportation even when their applications are being reviewed. The government uses the discretionary power vested in the Director of Immigration as an excuse to avoid taking up the responsibility of recognizing the rights of refugees/asylum seekers.
In a December 2008 ruling on the torture claim case of FB & Ors v Director of Immigration & Anor, the High Court declared the government's CAT assessment process to be unfair and unlawful because of a lack of legal representation for claimants during interviews and oral hearings. In dealing with the CAT claims, the decision makers are not only insufficeintly trained, they are not even the same people who act as the examining officers, raising questions on the correctness of the decisions that are rendered.
The Concluding Observations of the United Nations CAT Committee recommended in its latest 2008 report that Article 3 of the CAT should be incorporated into Hong Kong's domestic law and that Hong Kong should establish a legal system that specifically handles an asylum seeker's application. The HKSAR government must come up with a comprehensive set of procedures to review each case, in accordance with Article 3 of the Convention.
For years, the government has steered away from having the Refugee Convention extended to Hong Kong citing possible abuses, and has avoided having to come up with effective legal mechanisms and refugee policies. The lack of legal recognition and the obscurity in the assessment policies provides good opportunities for human rights abuses. The lack of separate refugee status determination and the lack of social service support of the asylum seekers and refugees in Hong Kong highlight how the government has violated international standards, such as the rights of non-refoulement, arbitrary detention and has deprived these people of the enjoyment of economic, social and cultural rights.
Aside from the nightmare with the issue on administrative procedures, refugees/asylum seekers also face problems of poverty and poor mental health, clearly showing that even the ICESCR to which the HK government is a signatory to, and which affirms that everyone has the rights to:
has been grossly violated and remain so to this very day.
The government insists that it has no obligation to ensure these rights for refugees/asylum seekers as Hong Kong is not bound by the Refugee Convention. Before their right to work is secured, refugees/asylum seekers are still economically dependants, but limited resources provided by the Social Welfare Department cannot meet the basic needs of living in Hong Kong, refugees/asylum seekers will have to continue to be deprived of the opportunity to be able to take care of themselves, and their families, in case they had their families with them. They are forced to be dependent on what the Social Welfare Department provides, which does not even meet the bare minimum required in order to survive in Hong Kong.
Assessment procedural inadequacies, arbitrary detention, threat of being deported at any time combined with the lack of social support and the stigmatization faced by society have all harmed the rights of refugees/asylum seekers. The government should make reference from international standards in order to establish a fair and lawful assessment process, reexamine its detention policies, drawing references from overseas experiences and improving detention policies
Revising existing law to ensure that anyone who has her/his assessment in process will not face removal will be the most important step, as well as to provide sufficient social support to this group of already vulnerable people, allowing them to become self-sufficient.
It is in light of this situation that Amnesty International (Hong Kong) recommends that the government:
Contact: Milabel Cristobal (Director) Phone: (852) 2155 2370