For eight years, Bawah ran. A minority in his West African country, he ran from the Bimoba tribe. He ran at night and in the rain, and when they fractured his left hand. Finally in 2005, fearing for his life, he ran much, much farther -- to Hong Kong.
But now Bawah faces the opposite problem: His life has ground to a halt. First, he failed to get refugee status at the UN Refugee Agency and lost his appeal. Then, he applied to the Hong Kong government, asking them not to send him home for fear of torture, and lost. As he prepared to appeal, the system for screening claims like his was ruled unfair and went into hiatus. When it started again, he lost. In all, he has spent the same amount of time in limbo as he did running.
"I fled after moving within my country failed," said the former teacher, 40, who asked to be identified by his nickname for fear of recrimination from the authorities. "In a fire, people flee through a door without knowing what will be on the other side. What I did not know was that I would fall into another fire."
Here's how Hong Kong's system for vetting asylum seekers works or, some would say, doesn't. The Refugee Convention does not apply to Hong Kong. Unlike many countries, it does not vet refugee claims, but refers them to the UN Refugee Agency. Since the UN enjoys diplomatic immunity, its decisions are not open to judicial scrutiny. The UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, however, does apply, so asylum seekers can make claims to the government under it. But this, critics say, has its own flaws.
Vision First, an organization that supports asylum seekers, estimates Hong Kong receives 2,000 of them per year. The UN agency says it receives about 300 applications for refugee status per year and approves, on average, 13.8 percent. Local Immigration Department figures show the territory received 1,174 torture claims last year and 88 so far this year, and allowed none.
But answers to some of Bawah's frustrations could come soon, in a ruling from the city's Court of Final Appeal in C, KMF and BF versus the Director of Immigration and Secretary for Security. The case, which concluded in early March and is awaiting judgment, challenges the government's policy of referring refugee claims to the UN Refugee Agency. If successful, Vision First executive director Cosmo Beatson, says, it could be "a watershed moment".
That's not the only legal challenge against the system. In December, the court ruled that the government must consider whether an asylum seeker, if sent home, would be exposed to "cruel, inhuman or degrading treatment or punishment," instead of only torture -- which the local bar association called "highly significant." A case arguing for the right to work for successful refugees and torture claimants will seek an appeal at the top court, and another one, on the right to an oral hearing in torture claims, might do the same.
"In the past few years, there's been a real quake in system which has shaken the legal landscape and brought to the fore ... the fact that refugees have rights," Vision First executive director Cosmo Beatson said.
The outrage generated by what he calls the "zero recognition rate" is one factor prompting the legal challenges. Of 12,300 torture claims that the immigration department has received since 2004, when it introduced its first torture screening system, only one has been approved. That, Beatson says, does not jive with asylum recognition rates of 20 to 38 percent in liberal democracies.
"Is this system is so unfair that it's not refined enough to find the genuine ones?" said human rights lawyer Mark Daly, who represented the plaintiffs in all these cases except the one ruled in December. "We've got young guys spending the best years of their lives in limbo. The system is failing them."
The Security Bureau said it was "not apparent that there should be any correlation between the number of substantiated claims and the standard of fairness or effectiveness of the screening procedures." Under the existing screening and statutory mechanism, it said, claimants are given "every reasonable opportunity" to make their case and can get publicly-funded legal assistance.
It said Hong Kong was small and had a dense population. Its unique situation, with its relative prosperity compared to the region and liberal visa regime, would make it vulnerable to abuse if the Refugee Convention were extended to it.
The bureau said it was studying the December ruling and seeking advice from the Department of Justice.
Simon Young, professor and director of the University of Hong Kong's Centre for Comparative and Public law, said that while the territory was "a beacon," especially in Asia, it was slow to recognize refugee rights, probably due to its experience with Vietnamese refugees. "Thus, when compared to other developed countries, Hong Kong is behind and has adopted asylum law protections in reverse order." Other countries started with refugee protection, following by "complementary protection," for those who are not found to be refugees but who still face a risk of other harm if sent home. Hong Kong started with the latter.
Advocates say they have yet to see results. "It's like a hospital that sets up a flow chart on how to handle patients but everybody dies or gets discharged without getting healed," Beatson said. "You can hire physicians and get X-Ray machines, but if nobody is healed, it's failing."
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