Who would want to stay in a limbo for 10 years?
By: Chelsea Lau
Tags: Hong Kong Asylum Seekers, Hong Kong, Asylum Seekers, Anthropology

By Cece Wong and Chelsea Lau

How does it feel like being trapped in foreign lands, not being able to leave nor live with integrity? This might be a distant sensation for most locals in HK, but not too much for asylum seekers like N. Having stayed in HK for almost 15 years, N had the time to condense himself and shared with us an unconventional view on how asylum seekers like himself see the world and especially, their predicament under the current deficient regime.

N was on his way of escape from persecution in his home country 15 years ago. He arrived in HK as a point of transit but was never able to leave since then. It was neither possible for him to go back to his home country as his citizenship was long revoked, nor land in another country due to immigration controls. He had no choice but to apply for asylum in HK. The asylum seeking process (during the pre-Unified Screening Mechanism (USM) regime) was immensely frustrating for him and his application was “case-closed” without justification by the UNHCR. He is now appealing his refugee status but like the most of other torture claimants, his case was stalled for years since then. According to statistics adopted by the HK Legislative Council (‘Legislative Council Report’), since the implementation of the USM, as of November 2018, there were almost 1000 cases pending first determination, and more than 14,000 cases pending appeal[1]. The system has been slow to determine (some) cases at various levels from first application, administrative appeal to judicial review. Many of N’s friends have remained in Hong Kong for more than ten years with their cases pending final determination.

“Asylum seekers, by definition, are people who cannot return, until their claims are proven groundless that they can be deported. That is the essence of the procedure. You see many people think all asylum seekers are making fake claims, and people call them economic migrants who can always return to their home countries if they want to,” N felt misjudged, “but think about it: who will want to be stuck in a limbo for 20 years on meagre social welfare in this humiliating situation if they have the choice? I am wasting years of my life in this endless legal battle. If I can go back, I already have.”

Absurdity of the Legal System

“The law is designed by human beings with different agenda, and it is subject to wide interpretation by those in power even throughout the judicial proceedings.” From his long struggle in the legal system, N has developed strong views against it. The first defect N spotted in the system is the comparison between responsibility and right to investigate non-refoulement claims. “The Immigration requires you to substantiate your own claim, and it has no responsibility to investigate your case to collect evidence. It discloses no clear parameters as to what proof is enough to substantiate your claim when it is out to reject it. But when it has something to say against you, it chooses and always has the right to investigate and bring up new evidence. Do you see the problem?”

N’s case had been handled by more than a dozen lawyers, and 15 years had passed. Yet, he is still here. He is very sceptical about lawyers and their motivations. “I know my case best, better than my lawyers. They don’t take my case seriously because they are just too busy with multiple cases. Sometimes they even get my profile wrong. Once they sent my documents to the wrong address. If they were so busy with other cases, why wouldn’t he get his priorities and schedule straight?” We went on to discuss why none of N’s lawyers had made a process for his refugee status. Years ago the UNHCR had already “closed” his case on refugee status application and despite him trying to appeal for that decision throughout the years, it is quite obvious that he would not get relocated to a different country via the standard route, proven by his multiple times of failures. He was once a step away from obtaining a certificate for statelessness which would allow him to pursue a different route to apply for relocation, but the opportunity had diminished upon an unexpected event. N talked of his experience with the judicial process in frustration, “These [his lawyers] are smart people, but they pretend not to see the point. They are just trying to fit me somewhere in the legal system where I don’t fit. For 15 years I’ve told you that (appealing the USM decision) does not work for me but to get my certificate of statelessness. Now you ask me to go back and do the appeals all over again? Why humiliate me with all this nonsense?”

Since it is a lawyer’s duty to act in the best interest of clients and justice, we were puzzled by this exposition. He went on to explain, “They just want to go down the old route which involves more complicated arguments. Then they can bill more hours from legal aid.” While the motivations and intention of the lawyers remain unknown, it is clear that the long legal battle has fuelled N’s distrust in these agents of the legal system.

Bogus Claims?

The long wait is a major source of frustration for N. With his extensive personal experience in the judicial process, he raised a suggestion to improve efficiency of the system. “If judicial review applications require leave (permission) of the court for hearings, why can’t the Immigration Department screen the applications first and allow only the real claims to be further processed? Why let everybody go through? If you see an applicant who has been a domestic helper in Hong Kong for ten years and then claims asylum, you should know what’s going on. Yet, you process their claims, you give them legal aid and social welfare, you give them everything for procedure.” It is not the case that only HK local citizens believe some asylum seekers are “faking” their non-refoulement claims for illegitimate purposes, but it is also a prevalent concern to some asylum seekers like N: These bogus claims have lengthened their queue and inhibited the authorities’ efficiency to deal with legitimate claims.

The “excessiveness” under the current USM regime can be addressed by the rationale behind the construction of law throughout the years. HK has been a party to the Torture Convention since 1992, which Art.3(1) of the Convention prohibits a Party to ‘expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture’. There was a line of cases challenging the government’s policies to substantiate a person’s refugee status since the 2000s. The HK Courts declared such policies unlawful as they did not meet the ‘high standard of fairness’ in concerned with the refugees’ freedom from torture (Secretary for Security v Prabakar[2]). It was again challenged in 2007 that the failure to provide legal assistance to torture claimants in screening their torture claims, did not fulfil the high standard of fairness (FB v. Director of Immigration[3]). In 2013, the Court of Final Appeal ruled, whilst upholding the previous authorities, that the HK government cannot simply rely on the refugee status determination by the UNHCR but it is necessary for HK to “independently enquire into whether the asserted fear of persecution in the event of return was well-founded” (C & Ors v Director of Immigration[4]). The USM was then commenced in 2014 based on the previous screening mechanism and Part VIIC of the Immigration Ordinance.

Hence, it seems to be legally impossible to get rid of the “bogus claim” issue. If the HK government now commences a mechanism that allows an immigration officer to filter out unmeritorious claims by exercising their discretion, or to decide not to provide legal assistance for some of the claimants, such policy would be in contravention with the above line of authorities and be deemed illegitimate.

People who abuse the process are themselves abused in their lives

Despite his bold suggestion on screening out highly suspicious claims, he still had some empathy for these claimants. “Some people are just tricked by traffickers and middlemen. Their families paid for them to go somewhere else to work, only to find out that they can’t.” While some left their homes with false hopes, some have no choice but to flee. “Some countries are so corrupt that these people just can’t survive in their home countries and had to leave,” he pointed out. “And people in other countries just don’t care. They design a legal system and define refugees to exclude people who have to flee for economic reasons…The worst thing is, the more ‘advanced’ countries actually support or acquiesce to the rule of corrupt leaders.” He asserted that while first world countries help perpetuate the grave situations in other countries which force asylum seekers to leave, they take no responsibility for these indirect wrongdoings.

International Laughing Stock?

A more fundamental question N asked was why Hong Kong opens its door to asylum seekers when it does not actually welcome them. Pursuant to para.6 the Notice to Persons Making a Non-refoulement Claim published by the Immigration Department, the HKSAR Government has a “long-established firm policy of not granting asylum to or determining the refugee status of anyone”. This position was reinforced by the Security Bureau in 2018 responding to the Legislative Council inquiry concerning the USM regime. This has resulted in an extraordinarily low possibility rate of such “torture claims” having substantiated by the USM: Out of the 23,184 applications made (as of November 2018), only 77 of them were successful[5].

“If you don’t want us, why do you let us come in and stay to claim status in the first place?” N questioned. When we tried to explain that HK is the signatory of some international conventions and have international legal obligations to process non-refoulement claims based on fear of persecution, he said, “Then Hong Kong can just leave the conventions if it doesn’t want to bear the responsibility. It is staying in the Convention because it wants the benefits they bring to its reputation and image, but it is creating injustice to the claimants [by holding their lives in suspension] through staying [in the conventions].”

In 2016, the then-Chief Executive of HK C.Y Leung condemned asylum seekers as ‘fake’ refugees, proposed to build closed camps to lock them up and urged Beijing to help HK withdraw from the Convention. This comment sparked outrage in society with many concerned about aggravating the prejudice and discrimination against ethnic minorities in HK. The then-Democratic Chairwoman Emily Lau noted ‘it would send a very negative message to the international community that Hong Kong people cannot care less about human rights and about the plight of asylum seekers’, turning HK into an “international laughing stock” if the government pulls-out from the Convention[6].

NGOs from N’s perspective

N also has strong views for the work of NGOs that help asylum seekers. There have been NGOs that sought to give genuine criticisms against the current regime and made real progress, but there are also institutions that serve and perpetuate the deficient system despite engaging in works that improve their “sensations”. In particular, he mentioned some institutions that he really appreciated. “They are genuinely criticising the system and trying to achieve fundamental changes. Some pretend to be criticising the system, but they then serve at the backdoors. Even if they don’t, some simply help individuals and do not question the system and the fundamental problems.” When he was asked what works asylum seekers would appreciate, he noted that education for children and resettlement arrangements would be helpful. “The asylum seekers need to see real progress in their cases. Many of the NGOs focus their work on small things that make people happy, but there is no real joy without progress.”

The tension between NGOs conducting works in support of asylum-seekers in HK and the government can be seen in the case of Vision First (“VF”)[7]. VF was an organisation established to engage the community into a deeper understanding of refugee rights, and to assist refugees to better integrate into the local community by arranging educational language classes. VF was liquidated in 2017 following a blog undertaken by one of its directors was considered as libel by the Court. It happened that the director accused the plaintiff institution (the International Social Services (“ISS”), an NGO that promised to offer support to refugees) of accepting bribe money from the Social Welfare Department, failing to conduct adequate checks on the condition of refugees’ accommodation, etc. In fact, the plaintiff institution was a government contractor to provide some living (food, accommodation etc.) support to asylum seekers. Despite not referring to VF and ISS directly, N suggested that similar conflicts were resulted from the reality that NGOs are no longer dedicated to expose the ‘systemic problems’ prevalent in the existing mechanisms to support refugees. ‘If they [NGOs] solved the problems then they will lose their jobs, they are on the same tree with the government’. When we asked him to comment on institutions such as VF, he responded, “as I see, those were the organisations that really tried to solve the problems, but they often end up in conflict with the government.”

Life just to stay “Alive”

As asylum seekers are not allowed to work, we asked N what he does in his own time, perhaps something that sustains his life in Hong Kong and makes it better. “I volunteer at different organisations. Communicating with other people makes me feel better and gives me something to do with my time. I also go to church occasionally, but you know, church is about spiritual growth and not about worldly joy. In Hong Kong, I’m only doing stuff to keep going, to survive, but I’m not really happy and these things don’t really improve my life.”

We noted that some asylum seeker groups have engaged in the social movement in 2019. When asked how he viewed the politics and social problems in Hong Kong, he put his point rather strongly. “This society doesn’t invite itself to help people in our situation with our issues. It doesn’t recognise us as part of them. We are just outsiders who have no business in the social problems here.” This view is quite understandable: when you already have so many issues to deal with in your own life and few are willing to help you, you would not have time to poke your nose into the issues of these “others” who have no connections with you.

N is also participating in the work of a group. At first, we thought the group was an advocacy group from its posts on social media. But when we asked N what the group does, he answered that they are trying to seek sponsorship for relocation to other countries. We also learned that the group is petitioning to different embassies of Western countries in Hong Kong. “If you’re so pessimistic about the situation, what are you doing in the group and why do you stay there?”, we asked N. “We are trying to find help from outside Hong Kong. Of course we cannot change the Hong Kong society or establishment. We’re not trying to do that. Honestly, there’s no hope for us here.”, he explained.

Throughout the meetings with N, he seemed very realistically pessimistic. At first, when we explained the aim of this project being to enhance public understanding and awareness and hopefully contributing to change in public perception and non-refoulement policies, N immediately broke this fantasy with his challenge: it isn’t about people not knowing what is happening to asylum seekers; asylum seekers are aliens to Hong Kong society’s perception, and in societies driven by self-interest and self-preservation. Ironically, HK was historically a city of refugees. It’s just that people nowadays are so busy with their materialistic pursuits and forget about that.

“My life is trapped in a time capsule.”

N has been applying for a work permit and travel document. He left the authorities to choose whether to let him stay or leave. Since it is widely known that the Immigration Department rarely grants work permits even to the asylum seekers with refugee status established, we were perplexed by N’s move. “I am applying because they have kept me here for nearly 15 years in a limbo and I could not find any other solutions. I am spending years of my life in this endless fight going nowhere, doing nothing. If they keep my case running for so long without rejecting it firmly, that should mean I am in the right but they just refuse to accept it. I’m getting older and older as I’m stuck here. I think I am entitled to move forward.” N said with firm conviction. “You know what that thing is? The container people use to keep items in their times and put them away for years?” “A time capsule?”, we suggested. “Right, a time capsule. My life has been trapped in this time capsule.” Indeed, his life is decaying in this time capsule slowly filled up with frustration.