By Innocent Mutanga
Hong Kong has a clear “no refugee acceptance” policy. As of the end of June 2017, there were 8,000 outstanding asylum cases in Hong Kong. We often use the terms asylum seeker and refugee, but the Hong Kong Immigration Department does not; search ‘refugee’ on the department website and see if you get anything. The government of Hong Kong uses a blanket term, the phrase ‘non-refoulement claimants,’ which includes what we normally call refugees, asylum seekers, torture claimants, stateless people, and others. The goal of this article is to provide a working knowledge for understanding refugees and asylum seekers in Hong Kong. The article may also be helpful to the refugee communities and advocates. If we are to bring any positive changes it is better to understand the basics well.
First things first, definitions.
The difference between a refugee and an asylum seeker is that an asylum seeker’s claim is still being processed—their bid for refugee status has not yet been affirmed or denied. Only once their claim has been substantiated will they be considered a refugee. The numbers on refugees (those whose claims have been substantiated) are hard to cite because until 2014 the United Nations High Commissioner for Refugees (UNHCR) processed cases of non-refoulement claimants. Meanwhile the Immigration department was processing cases that didn’t fit the UNHCR criteria and those were generally referred to as torture claimants.
This co-processing of claims came to an end in March 2014, at the time when the Immd decided to introduce a new system called the the Unified Screening Mechanism (USM), and that brought the end of UNHCR’s mandate to process claims. However, the UNHCR didn’t totally go useless after that; they were left mainly with resettlement issues. So after an asylum claim has been substantiated through the USM, it will then be referred to the UNHCR for resettlement arrangements.
Hong Kong isn’t signatory to the 1951 Refugee Convention, which defines the term “refugee,” and establishes a legal basis for refugee rights and state responsibility to refugees. China is a signatory, however (the convention was not extended to Hong Kong during the reunification, though Hong Kong is a signatory to the Convention Against Torture; meaning HK can’t repatriate a person to a country they might face torture of some sort). Since Hong Kong isn’t signatory to the 1951 Convention, the city has no obligation to give a new home to refugees. Hong Kong’s role is simply meant to be a place of transit. In practice, this isn’t the case; of 30,000 asylum claims made to the Immigration Department, only 99 have been substantiated. (This also give you a sense of how many clients UNHCR is working with).
Flatly speaking, one hundred substantiated claims out of the determined of that thirty-thousand is a 0.7% acceptance rate. But most of those who are labelled as having withdrawn their claims would have probably been rejected in the first round, and it would be fair to include them in the rejection pool. That brings down that acceptance rate to 0.4%. To put that into perspective, it’s thirty-five times easier to be admitted to Harvard via early decision than to have one’s asylum claim substantiated in Hong Kong.
Of those whose claims have been substantiated, 38—the majority—are from African countries(in spite of this, Africans are the least common claimants). It’s important to note that these aren’t 38 individual claims. The way it works is like this: if you are a family of eight and one parent successfully lodges a claim then all eight family members are also accepted as part of your claim. The majority of claimants are from South Asian countries, and of those many South Asians, only 25 have had their claims substantiated. (From this we can get a sense of what nationalities the Hong Kong government typically believes have genuine claims.)
To explain the government’s rather unwelcoming attitude towards asylum seekers, it argues that if it accepts asylum seekers, it will be opening the door to many more. It also argues that, unlike those in other countries, asylum seekers in Hong Kong are economic migrants in search of Hong Kong’s greener economic pastures. (These claims have been challenged many times, and are beyond the scope of this article.) To curb the problem of so-called ‘economic asylum seekers’, the Hong Kong government has begun dividing entrants to Hong Kong into two categories: desirables and undesirables.
One might imagine that I use such blunt terms to prove a point, but in fact these terms are the ones used by the Immigration Department on their website and YouTube channel (yes, they have one). The darker your skin, and that of your countrymen, the more likely you are to be classed as undesirable. Just entering Hong Kong has become increasingly difficult for people from these countries, with the introduction of a pre-registration system for Indian nationals, and decreased visa-free entry for other countries. In short, Hong Kong’s current immigration policy is an outgrowth of the simple desirable/undesirable categorization, no matter what you’re applying for, whether work visa, dependent visa, or study visa.
How do asylum seekers and refugees live in HK?
The Social welfare department supports an NGO called International Social Service, or ISS. Each month ISS provides asylum seekers with 1,500HKD for housing, 1,200HKD in supermarket food coupons, 300 HKD for utilities, and a transportation subsidy of less than 500HKD, depending on where one lives. These figures are for assistance provided to adults; children’s monthly assistance stipends are typically half as much. Is this assistance sufficient to live in a city with the second-highest cost of living in the world, according to the 2017 Mercer annual Cost of Living index? Of course it isn’t, and the Hong Kong government readily admits this. Nevertheless, their reasoning is that if they create better conditions for asylum seekers, they will see a corresponding increase in people coming to HK specifically to apply for asylum.
What are the procedures in processing a claim?
There is a lot of dated information out there, but since March 2014 here is how things work in Hong Kong. Imagine a young Yemeni woman who we’ll call Apple. Apple leaves her home country fleeing for her life, truly or allegedly, and because Hong Kong offers thirty-day visa-free travel to Yemenis she knows she’ll be allowed to enter the country. Apple is allowed to enter Hong Kong, and eventually she goes to the Kowloon Bay Immigration Office to open an asylum claim. Why does she wait? If she goes to Kowloon Bay immediately before her thirty-day visa-free period expires, according to the UNHCR website, Apple will not be allowed to open her case: “Persons with a valid Hong Kong visa cannot apply for non-refoulement protection under the USM. The Government’s obligation to assess refoulement protection is triggered only when an individual’s valid visa has expired and a removal order has been issued against an individual.”
If UNHCR is right about this USM policy, and dozens of friends have also confirmed this policy to be as such, Apple has to first be criminalized by overstaying before she can lodge her claim. But what else is hidden here? The Immigration Department frames the statistics it publishes on the nature of asylum claims lodged in HK in a very misleading way. They say 48% of those who applied for asylum were overstayers, and the others were illegal. But it’s impossible for any of us to know what percentage of that 48% weren’t permitted to lodge their claim without being forced to overstay; in many cases, overstaying is a condition for lodging a claim in the first place. The hypocrisy doesn’t end here. The immigration rejects cases based on claimants having overstayed. In many rejection letters, the department argues that, “because you only lodged your claim after overstaying, you must not be a real asylum seeker.”
By now, Apple has been forced to overstay in order to file her claim, and because a removal order has been issued against her, she is now in a more vulnerable position—despite her intent to fully adhere to the Immigration Department’s conditions of stay. Now the immigration officer reviews Apple’s case and decides whether the case is likely to proceed quickly or slowly. If they think it will be resolved right away, she may be detained (a number of claimants are detained in Castle Peak Immigration Detention Center), and her claim will be processed while she is locked up.
There are endless problems that might arise out of this, like Apple not being given enough information regarding her rights or options. But let us say her claim is assumed to take longer. In that situation, Apple will be released on Recognizance, and will then go to ISS for “basic needs assistance.” While waiting for her ISS application to be approved, she will probably survive thanks to the help of Christian Action Center for Refugees, a center which caters primarily to people in emergency situations. In the meantime, Apple will be assigned to an immigration office, and required to sign at an immigration office, based on the stage of her case. The signing frequency also varies based on the stage a case is in. With enough background information, you can tell the stage of an asylum claim based on the specific office and the frequency with which the claimant is required to sign in there.
Based on my observations and conversations with hundreds of claimants, it will take at least a year for Apple’s case to be called for further action. This will be the first briefing the claimant receives. Many claimants have little to no knowledge of what will happen to them this whole time. This first meeting will consist of two main steps: completing the application form to apply as a non-refoulement claimant, and receiving information on visiting the Duty Lawyer offices. One might wonder, ‘What!, An application form, what about the one Apple did in the beginning?’ In fact, Apple hasn’t actually lodged an asylum claim yet; rather, the Immigration Department views her as having expressed intent to do so, and an entire year later she begins the actual process.
Later that week, Apple visits the duty lawyer’s offices, where a lawyer is assigned to her. Apple, the lawyer, and a law clerk complete the application form, which is long and repetitive. There is usually not enough time to finish it (in some cases, duty lawyers have to request an extension from the Immigration Department). Once the form has been submitted and after several months have passed, Apple will be called for an interview at the Immigration Department. Apple might need an Arabic translator, which isn’t so difficult to find, but if she spoke Pashto, or Acehnese, or another language less commonly found in Hong Kong, the time needed for the Immigration Department to find a translator will increase immensely. Translators are often random untrained people sometimes from a different country who bring their own biases to the job, potentially in cases of inter-ethnic conflict. There is even more layers on top of the biases the translator might bring e.g the translation is from X language to English and in turn into Cantonese, adding an opportunity for miscommunication on all sides.
At the interview, it will be Apple, her lawyer, translator, and the immigration officer (the interviewer). There may also be witnesses who can corroborate Apple’s claims if needs arise, but this is rare. There is so much I could write on what they look for, but I think looking at the form would do a better job than me. The form I believe should be accessible on the internet. The interview may even take an entire day. After that, a decision would come in several months, It really depends on the case. As mentioned before, though Harvard University rejects more than 85% of early decision applicants, the Hong Kong Immigration Department has them beat by a huge factor ; chances are that Apple’s case will be rejected. Once rejected, Apple can appeal via the supposedly independent Torture Claims Appeals Board, which is still overseen by the Security Bureau. From my observations and inferences, the Security Bureau are the real bad guys. Though the Immigration Department sometimes makes poor decisions, they also really don’t have that much bargaining power.
Apple’s case will probably be rejected by the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office. At this point, she won’t be given additional information on further options or steps to take. Instead, she’ll be informed that her case is now closed and that she will be detained. This is where many claimants fall through the cracks and are deported to their home countries, though a few will know that they can actually challenge the decisions of both the Immigration Department and the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office. This is done at the High Court, where they will first apply for leave as it is the ritual, then if the leave is granted the court will take the case.
So far the USM system is too new to have had cases, whether accepted or rejected, go through the High Court, and it is impossible to make inferences as to how the system works (please share your experience with the High Court in the comments). Over the course of this process, the claimant’s fears of going back home may have subsided, and they may leave voluntarily as indicated in the Immigration Department’s very high voluntary departure statistics. If Apple is lucky enough to be one of the ninety-nine in any of the stages, then she would be referred to the UNHCR for resettlement, and the resettlement isn’t guaranteed either but if successful she would probably wait for around two years until her resettlement is finalized. A significant are resettled to the US, but with the current US leadership, things have gotten even more complicated for Muslims.
In the end, the system is very complicated, and many claimants aren’t as informed as they should be. This leaves room for abuse of the system by the Immigration department e.g, withdrawing information from claimants, detaining those who shouldn’t be detained in the first place, etc. It is really a very hopeless and dark system. It's a f*cking blackhole!
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