Hong Kong binds Lankan torture victim's hands

A Hong Kong court has slammed the door shut on a Sri Lankan torture claimant who argued for his right to work, rejecting his appeal unanimously and reasoning that there were no such rights enshrined in the constitution, known as the Basic Law.

There was not even a right to work under common law, the court ruled.

The ruling by five judges of the Court of Final Appeal, Hong Kong's apex court, was seen as yet another blow to hundreds of refugees, mostly Pakistanis and Africans. A few Sri Lankans are also adversely affected along with others. Most live in slum like conditions as exposed by NGOs and get government cash and food handouts through an NGO, the International Social Service Hong Kong (ISSHK) branch.

The handouts include a rental allowance of HK$1,200, (about 20,000 rupees), about HK$1,000 worth of groceries and a small amount for public transport. In Hong Kong, one can rarely find a single square foot of floor space for HK$1,200.

ISSHK has been condemned by refugees and NGOs for distributing suspect items through several mainly South Asian-owned shops.

There have been complaints of rotten vegetables, and milk not authorised for sale in Hong Kong. Some have seen dodgy Pakistani jam and unappetising China-made canned ham. One Pakistani shop has come under scrutiny for smuggled cigarettes.

Despite the recent ruling, refugees continue to do dirty and dangerous jobs to make a quick buck in money town. Some even run businesses such as renting rooms and operating small restaurants, while collecting handouts provided with public money.

In challenging the Director of Immigration's denial of the right to work, the Sri Lankan was joined by three refugees from Burundi and Pakistan in their appeals to the highest court. One of them is in jail for a drugs offence. None of them has a right to enter or remain in Hong Kong. In November 2012, a lower court also dismissed their appeals. But the highest court considered their appeals "because important issues are raised and should be dealt with in the public interest,'' the court said.

In presenting their case for a constitutional right to work, the appellants relied on Article 14 of the Hong Kong Bill of Rights, Article 6 of the International Covenant on Economic, Social and Cultural Rights, and Article 33 of the Basic Law. They argued that given the constitutional right to work in Hong Kong and, any exercise of discretion by the Director of Immigration not to permit them to work can only be justified by the application of the proportionality test.

They also cited Article 3 of the Bill of Rights and contended that not permitting them to work constituted inhuman and degrading treatment. In addition, they argued that a right to work existed at common law.

But the Court of Final Appeal held that section 11 of the Hong Kong Bill of Rights Ordinance (Cap.383), subject to section 5 of the same Ordinance, intended to except immigration legislation that deals with a person's entry into, stay in and departure from Hong Kong, and such immigration control included the aspect of whether a person should be permitted to work. Therefore, the appellants are unable to rely on Article 14 of the BOR.

The court also held that Article 6 of the ICESCR cannot be relied on. International treaties do not confer or impose any rights or obligations on individual citizens unless and until they are made part of domestic law by legislation.

The judges ruled that Article 33 of the Basic Law confers the right of freedom to choose an occupation, but not a right to work. "Article 33 does not refer to the right to work in general. It is much narrower than that, dealing only with the freedom of choice of occupation. If it was intended that a wider right was to exist, the article would simply have said so, or it would have been made much clearer, rather than to adopt a somewhat elliptical technique.''

The court also said it is difficult to conceive of the existence of a right to work under the common law.

The Sri Lankan has been in Hong Kong for more than 13 years and had been allowed to work at various times. The court noted that he is recognised as the first person in Hong Kong to have succeeded in his torture claim. He had been screened in under the Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment, or Punishment, in May 2005, five years after arrival.

Torture claims are evaluated by the Immigration Department. As for refugees, Hong Kong, which is not a party to the United Nations Convention Relating to the Status of Refugees (1951), does not grant asylum. Although China is a party to the convention, Beijing did not apply it to Hong Kong, a magnet for refugees. In the 1970s alone, thousands came from Vietnam on boats. In later years, HK became a port of call for hordes of Africans and Pakistanis.

The convention defines a refugee as a person who "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who …" (Art 1A(2))[2].

In Hong Kong, refugee claims are determined by Office of the UN High Commissioner for Refugees HK office, under a 2009 Memorandum of Understanding between the Government and the UNHCR. The UNHCR cannot be sued.

According to the NGO, Vision First, only four asylumseekers have succeeded in the past 21 years. More than 12,400 have sought asylum in that period. Sobering statistics for potential refugees including those from Sri Lanka, who seek a pot of gold in Hong Kong!