OVERVIEW OF HONG KONG'S ASYLUM POLICIES

C O N F I D E N T I A L SECTION 01 OF 05 HONG KONG 003973

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E.O. 12958: DECL: 10/06/2031
TAGS: PHUM PGOV PREL PREF PINR HK CH
SUBJECT: OVERVIEW OF HONG KONG'S ASYLUM POLICIES

Classified By: Acting Deputy Principal Officer Laurent Charbonnet. Rea
sons: 1.4 (b,d)


1. (C) Summary: Hong Kong, which is not a signatory to the
United Nations Refugee Convention, does not grant asylum to
refugees but allows the United Nations High Commissioner for
Refugees (UNHCR) Hong Kong Office to assess all refugee
claims submitted by asylum seekers. A recent doubling of
asylum seekers arriving in Hong Kong has sparked concern
among officials that the city might become a magnet for
asylum seekers; the Government has responded by tightening
visa requirements for nationals from some South Asian and
African countries. The Government's stringent asylum
policies are based on fear that the city's economic
prosperity might be vulnerable to abuse by a flood of
economic migrants posing as asylum seekers. A 2004 court
ruling has forced the HKG, which is a signatory to the UN
Torture Convention, to assess claims submitted by possible
victims of torture independently of the UNHCR process.
Critics of the HKG's asylum policies point to the 120
asylum-seekers currently in detention as evidence of the
Government's callous treatment of asylum seekers; the HKG
counters that these individuals are in detention because of
their criminal records. Legislators from the Panel of
Security and Welfare Services passed a motion in July urging
the Government to cooperate with UNHCR to speed up the
screening of asylum seekers and to change their policy on
detention. As the majority of Hong Kongers do not appear
overly sympathetic to the plight of non-ethnic Chinese asylum
seekers, the Government shows no sign of changing its stance
on asylum seekers in the near future. End Summary.

Hong Kong: Magnet Destination for Asylum Seekers?
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2. (C) The Hong Kong Government (HKG) does not grant asylum
to refugees, a policy rooted in the fact that Hong Kong,
unlike Macau and the PRC, is not a signatory to the 1951
United Nations Convention relating to the Status of Refugees
(Refugee Convention). While Hong Kong claims that it has no
legal obligation under international law to offer asylum,
critics of its policies say that the Government is
increasingly out of step with international standards of
protection normally given to asylum seekers. Accordingly,
those critics have urged the HKG to reconsider its policy.
Defending the HKG's position, Principal Assistant Secretary
of the Security Bureau Alan Chu told us that if Hong Kong's
asylum policies were liberalized, the city's economic
prosperity might be vulnerable to abuse by a potential flood
of economic migrants posing as asylum seekers.


3. (C) Fearing that Hong Kong might become a magnet
destination for asylum seekers, the Government has had to
take a cautious approach on asylum issues, said Chu. The
Government is also aware of the possibility of a backlash
from the local community if it softened its stance towards
asylum seekers and refugees, but did not do the same on the
right of abode issue. Many Hong Kong families continue to be
upset over Beijing's 1999 interpretation of the Basic Law,
which essentially reduced the number of mainlanders eligible
for right of abode in Hong Kong; others complain about the
lengthy wait many families face in bringing their mainland
family members to Hong Kong. Moreover, providing too many
social welfare benefits to non-ethnic Chinese asylum seekers
might stir up jealousy and unhappiness with the Government's
policies. The HKG's fear of a more humanitarian-based asylum
policy is also grounded in its experiences dealing with the
economic and security impact of the arrival of 100,000 plus
Vietnamese refugees during the 1970s and 1980s. Even though
many Hong Kongers were refugees themselves from the mainland,
or at least descendants of refugees, they do not hold much
sympathy for non-ethnic Chinese refugees or asylum seekers.

UNHCR Views Role in Hong Kong as "Distorted"
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4. (C) Monique Sokhan, Head of the United Nations High
Commissioner for Refugees (UNHCR) Hong Kong Office, explained
that UNHCR's mandate is to assist asylum seekers and refugees
and, if necessary, arrange third country resettlement.
Unfortunately, UNHCR's role in Hong Kong has been "distorted"
by the Government's lack of clear asylum policies, said
Sokhan. Further complicating the relationship is the HKG's
decades-old claim that the United Nations owes it over HKD 1
billion dollars (approximately USD 128 million) for expenses
incurred during the Vietnamese refugee crisis; UNHCR disputes
this claim. Under normal circumstances, UNHCR monitors the
refugee situation or assists countries in determining an

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asylum seeker's eligibility as a refugee (refugee status
determination). However, because Hong Kong is not a
signatory to the Refugee Convention and refuses to take a
more pro-active stance on asylum issues, UNHCR has taken on
the entire burden of asylum seeker adjudication as well as
providing financial support to asylum seekers and refugees.
While the HKG and UNHCR clearly had their differences over
how to handle asylum issues, Sokhan said that the Government
largely did not interfere in UNHCR operations or summarily
deport asylum seekers or refugees.

High Court Rules Hong Kong Must Assess Torture Claims
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5. (C) While Hong Kong is not a signatory to the Refugee
Convention, it is, however, bound by the UN Convention
Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (Torture Convention). Until a recent
court ruling, the Government did not conduct one-on-one
interviews with torture claimants, but assessed claims based
on information provided by UNHCR (which has no mandate to
assess an individual's claims under the Torture Convention).
However, after a June 8, 2004 ruling by the Court of Final
Appeal in the "Secretary for Security vs. Sakthevel Prabakar"
case, the HKG was forced to assess a claimant's case under
the Torture Convention independently and separately from the
UNHCR's refugee assessment (more on this issue in paragraphs
11-13).

Rising Number of Asylum Seekers Arriving in Hong Kong...
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6. (C) Until recently, the UNHCR was able to manage the
stream of asylum seekers arriving in Hong Kong. However,
with a recent doubling of asylum seekers arriving in Hong
Kong, UNHCR resources may soon be overwhelmed. In the first
half of 2006, the UNHCR Hong Kong office received 982
applications for asylum, compared to 998 applications in all
of 2005. Furthermore, UNHCR statistics show a general upward
trend since 2002: 631 asylum applications in 2001; 309 cases
in 2002; 390 cases in 2003 and 798 cases in 2004. Currently,
there are 1,500 asylum seekers in Hong Kong, with
approximately 160 new arrivals each month. Approximately
10-11 percent of asylum seekers in Hong Kong have been
recognized as refugees, with 120 currently awaiting
resettlement.


7. (C) The increased numbers of asylum seekers in Hong Kong
are unusual and do not correspond with UNHCR's expectations
of refugee flows, according to Sokhan. For example, UNHCR
expected to see more Sri Lankan asylum seekers fleeing an
uncertain political environment in their home country, but
instead has been surprised and concerned over the number of
South Asians arriving in Hong Kong from Pakistan, Nepal,
India and Bangladesh. Moreover, it was unusual for many of
these asylum seekers to travel to Hong Kong instead of
pursuing internal flight migration first. She speculated
that Hong Kong might be a logical destination for some South
Asians, since it would be easier to blend into local
Nepalese, Indian and Pakistani communities and to find
illegal work opportunities. Sokhan said there was also
anecdotal evidence that some individuals first traveled to
China and were then smuggled across the border into Hong
Kong.


8. (C) The Government believes that one explanation for the
surge in asylum seekers is Hong Kong's generous visa regime.
In response, the HKG has tightened visa policies for certain
African and South Asian countries, Chu said. However, this
has "not been effective in stopping the influx of economic
migrants." He also speculated that some asylum seekers
preferred to file their asylum claims in Hong Kong, which
does not grant asylum. If granted refugee status by UNHCR in
Hong Kong, these refugees would likely be resettled to
preferred destinations such as the U.S., Canada, or Western
Europe.

...Overwhelming the System
--------------


9. (C) Coinciding with the increase in asylum seekers, the
local UNHCR office has been hit by deep budget cuts. In late
2005, the budget for UNHCR Hong Kong was cut by ten percent
and then by another twenty percent in early 2006. Hong Kong,
with its high cost of living, was not an ideal place to
expand UNHCR operations, and priority naturally was given to
offices located near refugee crises in Africa or in Southeast
Asia, explained Sokhan. With asylum seekers from over 35

HONG KONG 00003973 003 OF 005


nationalities, many of whom required interpretation services,
the rising number of asylum seekers has overwhelmed UNHCR
Hong Kong's limited resources and its caseload. The
estimated wait time for a "first instance" refugee status
determination is now six months, with up to one year for an
appeal to be finalized.


10. (C) Budget cuts also forced UNHCR Hong Kong in March to
cut financial assistance covering food, accommodation and
transportation costs to eighty vulnerable asylum seekers,
such as women and children; it will continue to provide
support for those recognized as refugees and waiting for
resettlement. In May, the HKG's Social Welfare Department
and some local charities began to provide social welfare
benefits to some asylum seekers previously assisted by UNHCR.


Torture Claimants
--------------


11. (C) Prior to the June 2004 court decision on the Prabakar
case, an asylum seeker's claims under the Torture Convention
were assessed by the Government based upon findings from the
UNHCR refugee status determination. The High Court ruled
that the Refugee and Torture Conventions had different
criteria and the Government was legally bound to set up a
procedure separate and independent from UNHCR. According to
Chu, very few individuals arrived in Hong Kong and
immediately approached the Government to claim asylum under
the Torture Convention; in practice, most of the 330 plus
cases currently being processed by the HKG were previously
rejected as refugee claimants by UNHCR, or only put forward a
claim when they were caught committing an offense or when
told they would be repatriated. Many asylum seekers refused
by UNHCR and perhaps wanting to delay deportation back to
their country of origin probably will file claims under the
Torture Convention, said Chu.


12. (C) Chu said that while a dozen torture cases had already
been formally refused by the Government, it would likely take
a long time to clear the backlog of such cases. Unlike the
UNHCR, whose rulings are final and free from legal challenge,
claimants under the Torture Convention have the right to
legally challenge the Secretary for Security's decision
through the Hong Kong court system, as well have access to
legal aid. Once a torture claimant's case enters the court
system, final adjudication and deportation might be delayed
for years, said Chu. With 1,500 asylum seekers in Hong Kong
already, approximately 160 new arrivals each month, and only
a 10-11 percent success rate for recognition as a refugee,
the potential is high that a large number of rejected refugee
claimants will file torture claims with the HKG and then
clog the court system with numerous appeals.


13. (C) Even if the Government recognized an individual's
torture claim as legitimate, it would not be legally
obligated by the Torture Convention to grant asylum, arrange
resettlement to a third country, or help the claimants
integrate into local society, emphasized Chu. Instead, those
individuals would be allowed to remain in Hong Kong pending
an improvement in their home country's situation, at which
point they would be deported.

No Intent to Request Basic Law Interpretation
--------------


14. (C) The Government has been concerned about the impact of
the Prabakar ruling on its ability to handle torture
claimants efficiently, said Chu, but did not intend to ask
Beijing for an interpretation of the Basic Law on asylum
issues. An interpretation request was a "non-starter"
because of the uproar and criticism it would attract from
organizations and legal professionals. Requesting assistance
from Beijing on this issue would simply set a bad precedent,
said Chu. Instead, the Government would work on allocating
more resources, furthering cooperation with UNHCR, and
speeding up the processing and assessment procedures for
torture claimants.

NGOs Criticize UNHCR and Government
--------------


15. (C) In June, a community activist group, the Society for
Community Organizations (Soco),released a survey which was
highly critical of UNHCR procedures and government asylum
policies. According to Soco's report, asylum seekers in Hong
Kong were often denied legal advice and not provided
transcripts of their UNHCR interviews or adequate

HONG KONG 00003973 004 OF 005


interpretation services. Soco Community Organizer Annie Lin
told us that applicants were often interviewed in a
confrontational and unfairly biased manner. Lin hoped that
the report and accompanying media attention on the plight of
asylum seekers would improve UNHCR operations. UNHCR refuted
Soco's allegations in a July 11 press release, which outlined
UNHCR guidelines and procedures. According to Sokhan, Soco's
report was "unprofessional" and she claimed that Lin had not
conferred with UNHCR before, during, or after the survey.
Moreover, said Sokhan, Soco did not understand the legal and
budgetary restraints which UNHCR faced in adjudicating the
numerous refugee claims in Hong Kong.


16. (C) Around the same period, several media reports
highlighted the fact that some asylum seekers in Hong Kong
were homeless and destitute because the Government did not
provide sufficient financial assistance or permit them to
work legally. Chu strongly rejected criticism that asylum
seekers were treated inhumanely by the Government, but he
also emphasized that the city did not want to be seen as a
haven for asylum seekers. The Government was generous in
allowing them to stay in Hong Kong in the first place while
awaiting assessment of their refugee and torture claims, said
Chu. He said the Government also provided some asylum
seekers with accommodations, education and medical
assistance, as well as a transportation allowance.

Asylum Seekers in Detention
--------------


17. (C) One of the more controversial aspects of Hong Kong's
asylum policies is the city's detention policy. Under a May
2006 court ruling, people seeking refuge in Hong Kong under
the Torture Convention are not necessarily exempt from being
sent to detention centers while awaiting a decision. "It
shouldn't be a crime to seek asylum. They haven't done
anything wrong," Lin told the "International Herald Tribune"
on July 1. However, Chu refuted the claim that torture
claimants had been indiscriminately detained in large number
for unwarranted reasons. The 120-plus asylum seekers
currently under detention had criminal backgrounds, used
forged documents to enter Hong Kong, or posed a security
threat to society, said Chu.


18. (C) Some of the confusion leading to the detention of
asylum seekers may be the result of the HKG's vague policy on
detention. The Government encourages, but cannot force, all
asylum seekers to submit a claim to UNHCR or the Government
within the legal validity of their stays in Hong Kong; many
only put in claims after their visas have expired. After
filing claims, asylum seekers are then encouraged to register
with the Department of Immigration so that they can be given
a letter of recognizance -- which acknowledges their refugee
or torture claims with UNHCR or the Government -- and grants
them a proper immigration status in Hong Kong. However, what
many asylum seekers do not realize is that the Department of
Immigration will temporarily detain them while checking their
records. If the asylum seekers do not have criminal
backgrounds, they are released and asked to register on a
regular basis with the Department of Immigration; they also
may be eligible for social welfare assistance. If they are
found to have criminal backgrounds (including immigration
violations),the Government will detain the asylum seekers
during adjudication of their refugee or torture claims. Many
asylum seekers, fearing detention, never receive a letter of
recognizance or welfare benefits and end up destitute.

Legislators Urge HKG to Cooperate with UNHCR
--------------


19. (C) In the wake of the negative publicity surrounding
asylum issues, Legco held a special session on July 18.
Legislators from the Panel of Security and Welfare Services
passed a motion urging the Government to cooperate with UNHCR
to speed up the screening of asylum seekers, to change their
policy on detention, and to provide educational opportunities
and legal aid to torture claimants. Legislator and Civic
Party Vice Chairman Fernando Cheung told the "South China
Morning Post" on July 17 that "the present policy is just
absurd. It could take over two years for an asylum case to
be processed. But once a claimant overstays his visa during
the wait, he will be treated as an illegal immigrant and will
be locked up if he is caught." In the past several months,
there have also been a series of high profile hunger strikes
and protests organized by asylum seekers and their supporters
in detention centers, demanding their immediate release.
While activists continue to push the Government to reconsider
its stance on the Refugee Convention, the Government does not

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seem likely to change its detention policy or its approach to
asylum issues.
Sakaue