Four years ago, a 22-year-old university graduate from Madagascar named Anna Rakoto* saw an online advertisement for a fashion retail job in Fuzhou, China, and eagerly applied. With guaranteed training, a decent salary, and potential connections to major international brands, it seemed like a dream. Her application was quickly accepted and, just a month later, an employment broker based in Madagascar arranged to smuggle Rakoto onto a flight to China so she wouldn’t have to pay for an expensive ticket.
Unbeknownst to Rakoto, the International Organi-zation for Migration (IOM), which provides resources and services to trafficking victims, had raised an alarm about Malagasy women being forced into unpaid labour or sex trafficking in China. In the first half of 2019, hundreds of Malagasy women were sent “on false pretense of legitimate work to China and end up exploited in forced labour and sold as brides,” according to IOM.
And so it was for Rakoto. As soon as they landed in the southeastern industrial city, the smuggler took Rakoto to a nondescript hostel that housed 10 other Malagasy women then instructed them to wait for representatives to arrive, at which point they would be assessed and recruited. Another two weeks went by before any representatives came. When they finally arrived, Rakoto remembers dozens of Chinese men taking the young women, one by one, into different rooms for the ‘interview’ process.
During Rakoto’s recruitment interview, she says a man told her that he was an executive of a fashion company and asked her questions about where she was from. “He then forced himself on top of me and raped me for hours,” Rakoto recalls. “My body was frozen.”
Rakoto’s nightmare lasted almost a year, during which time she barely went outside and ate just one meal a day. She was also forbidden from contacting her family. “It felt like I was living in hell – day in, day out.”
The smuggler then revealed another twist. Some of the Chinese men wanted to marry select women and, if they agreed, those women would be guaranteed work. Rakoto wasn’t chosen, and so the smuggler took her to Hong Kong to source more clients.
One night, when the broker was sleeping, Rakoto escaped, walking out of the hotel and onto the streets of Tsim Sha Tsui on Hong Kong’s Kowloon peninsula. Alone and penniless, Rakoto found herself stranded in an unfamiliar city and on a precarious two-week tourist visa that was running out.
She walked for hours and found herself in Chungking Mansions. There, she says a French-speaking Malagasy woman – also seeking asylum in Hong Kong – invited Rakoto to stay in a tiny flat in one of the building’s towers.
Sharing a space with a number of other asylum-seeking women, Rakoto waited for her visa to expire, then filed a protection claim. While it might sound counterintuitive, in Hong Kong, asylum seekers are often advised to submit their claim once their tourist visa expires.
“For many years, the immigration [department] has adhered to the practice of processing a claim for non-refoulement protection only after the claimant has overstayed,” explains Benjamin Chan, a barrister from South China Chambers who provides legal representation to asylum seekers and refugees. “This results in their being liable for removal. The practice was the subject of a legal challenge in BK v Director of Immigration and CK v Director of Immigration. Both BK and CJ failed. Their appeals were dismissed by the Court of Appeal.”
Hong Kong’s ‘inhospitable’ environment
While Rakoto’s claim was being processed, she realised that she was pregnant. The father soon disappeared after learning about the forthcoming child, leaving Rakoto to give birth alone in a public hospital.
Around the same time, Hong Kong immigration authorities processed Rakoto’s protection claim through the government’s Unified Screening Mechanism (USM) which was introduced in 2014 to ‘unify’ two formerly separate systems that analysed claims of torture and persecution. Rakoto says she explained the dangers of returning to Madagascar, but the immigration officer saw it differently. She recalls him saying that if Rakoto had managed to escape from the trafficking ring in China, she could also survive if she returned home. “The smuggler lives in my village [in Madagascar],” she says. “If I go back, they’ll punish and torture me to death for running away.”
Given that Hong Kong never signed the UN’s 1951 Refugee Convention or the UN’s Trafficking in Persons protocol, the city does not grant asylum and allow refugees to resettle. Instead, a successful claim via the USM can at best prohibit the deportation of asylum seekers who can prove a “well-founded fear” of torture and persecution in their home country. This law is commonly known as ‘non-refoulement.’
“All the doors were shut, and I was completely alone in Hong Kong. I also didn’t know a word of English, so it was hard for me to explain the details of the dangers of returning to Madagascar,” Rakoto says, describing her first interview with the Immigration Department, in which she says they questioned her without an interpreter.
Rakoto’s case is not an isolated one. Another Malagasy woman also ended up in Hong Kong after escaping a human trafficking ring in Fuzhou in 2016. Onia Merina* says she endured forced labour conditions and sexual violence in a textile factory that she believes is owned by a businessperson from Madagascar.
On arriving in Hong Kong, Merina learned that the city doesn’t accept refugees. She sought non-refoulement protection, nonetheless, submitting a protection claim based on well-founded fears of returning to Madagascar. Merina says the female smuggler who lied to her about the ‘job’ in China could kill her or take her back to China. “We weren’t allowed to keep a single dollar, but I kept some money and I’m sure they know, so if they find out they’ll cut my hands off and kill me.”
Merina continues: “Immigration didn’t give me a date for the first interview after I sent them my claims and I had to wait a long time [for them] to hear my case. All I thought was that I had been rejected.”
In 2016, Merina was called to her first and last interview with immigration authorities, a meeting that lasted just half an hour. A year later, the Immigration Department mailed their decision in a letter. Her instinct was right: They rejected her claim. When Merina asked the immigration officers why they declined to offer any explanation. She has since been searching for legal representation to help file an appeal but has had no luck so far.
Combatting ‘new slavery’
The international community has made great strides over the past half century to combat slavery and forced servitude. Unfortunately, that trend may be reversing as human trafficking recently hit historic highs. In 2017, the UN’s International Labour Organization (ILO) estimated that more than 40 million people worldwide are living in conditions of forced labour or marriage. The ILO has labelled this phenomenon “new slavery.”
With regard to Hong Kong, the government recognises human trafficking as a form of modern-day slavery and has made considerable efforts to eliminate the practice. As a result, the US State Department’s 2019 Trafficking In Persons (TIP) report has upgraded the region from the Tier 2 Watch List to Tier 2.
However, countries classified as Tier 2 (such as Hong Kong, Denmark, Egypt, Germany, Ghana, and Ireland) still fail to meet the minimum standards to combat trafficking, which include “internal trafficking crimes, including domestic servitude, [and] forced begging.” And according to the report, there is no comprehensive anti-trafficking law in Hong Kong, noting that “officials continue to penalise trafficking victims for unlawful acts traffickers compelled them to commit.”
The report also criticises the Hong Kong government for failing to adequately investigate trafficking claims; convict labour traffickers; make sufficient efforts to ensure the safe repatriation of victims to their home countries; or enact legislation to fully criminalise all forms of trafficking.
While Hong Kong has recently introduced a victim identification mechanism and increased training for officials and law enforcement, the US State Department’s report recommends that the government investigate and prosecute suspected sex and labour traffickers; improve their victim-centred approach; and, most importantly, allow foreign victims to work and study in Hong Kong while participating in judicial proceedings against traffickers.
When it comes to why Merina and Rakoto’s claims may have been rejected, researchers from the Justice Centre Hong Kong, a local human rights NGO, provide insights in a 2017 report. The report notes that those who overstay their visas, even when advised to do so, may see more skepticism from officials because they are by default ‘illegal’ immigrants.
As the report notes: “There is an impression that ‘real’ refugees ‘file claims immediately upon entering the city.” If they come to Hong Kong and do not request protection upon arrival, it can cast doubt on their claim and make it harder to substantiate. In addition, Hong Kong’s opaque definition of human trafficking makes the situation all the more challenging. Article 4 of the Hong Kong Bill of Rights, the city’s domestic legislation apparatus, states that holding any individual in slavery, servitude or “requiring them to perform forced or compulsory labour” is prohibited without fully defining whether forced labour also covers human trafficking crimes. The term “trafficking” isn’t used in the Bill at all. “With a highly circumscribed definition of human trafficking,” the Justice Centre report explains, “almost nobody receives ‘official’ categorisation as a victim of trafficking.”
“It’s unfortunate for those who resort to seeking protection in Hong Kong, as the success rates are consistently low and it is a very expensive city to live in,” says Chan. Having worked on a number of asylum cases, Chan says employment and resident status remain the top two restrictions for asylum seekers.
Applying for employment and obtaining residential status are illegal for asylum seekers unless their protection status has been determined, thus limiting access to public services and benefits. For Chan, Hong Kong is ultimately “an inhospitable environment for asylum seekers.” Asylum seekers are forced to live in decrepit conditions in one of the most expensive cities in the world, Chan explains. This also leaves them at risk of being exploited – some employers may take advantage of asylum seekers, knowing they are ‘illegal’ and can’t report abuse or seek recourse.
The possibility of asylum protection with regards to trafficking and the UN Convention Against Torture may even be lost on authorities, according to Chan. “In assessing a claim based on trafficking, a question sometimes arises as to whether the claimant faces a real risk of being re-trafficked upon return to the country of origin.” Chan adds that an individual’s vulnerable position calls for a victim-centred assessment to determine whether their claims are well-founded and warrant protection.
In December 2018, the Legislative Council’s Panel on Security proposed restrictive amendments to the USM, citing an increase in the number of non-refoulement claims. The proposed changes include speeding up the removal of rejected cases; continuing the indefinite detention of asylum seekers awaiting updates of travel documents from their countries of origin; and barring “overstayers” from entering Hong Kong by introducing a fine of HK$100,000.
Cyrus Cheung, administrative secretary for the Review Division for the Security Bureau, responded via email to Ariana that asylum seekers have “every reasonable opportunity to substantiate their claims under the USM.” By expediting the duration of handling claims since early 2019, “the clearance of the backlog, new claims received could be handled by the department readily,” Cheung went on to write. The Bureau is slated to submit an amended bill before the end of the year.
One of the suggestions under consideration is to minimise the time in which an individual can lodge an appeal from two weeks to one. Merina, one of thousands who lodged appeals last year, expressed dismay at the proposal, since the current timeline is already challenging for asylum seekers. Having only a week to secure legal representation and gather documents and evidence would put tremendous pressure on asylum seekers.
Responding to these measures, Chan says that “proper regard to due process and fairness” would be absent. Tightening the timeframe would continue the current status quo of appeal cases which he says are “poor in quality” and enable officials to reject a claim in a shorter time. The quickened pace would particularly affect asylum seekers who were caught up in “unforeseen cases of health battles, human trafficking, and changes in political circumstances in their countries of origin,” he adds.
Since 2016, government moves to crack down on alleged “illegal immigrants” have increased. In 2018 alone, nearly 2,000 asylum seekers were deported and, so far this year, more than 100 asylum seekers have been repatriated to their country of origin every month, according to a report by the South China Morning Post.
The Secretary of the Security Bureau, John Lee, released a public statement earlier this year saying that the government’s proposed amendments were needed in order to deter criminal activities by illegal immigrants and visa overstayers.
Tegan Smyth, founder of Table of Two Cities, a local grassroots project where asylum seekers can share their culture and stories through the medium of food, says the ‘fake’ or ‘illegal’ labels often associated with asylum seekers stem from a failure to evaluate the reasons for seeking protection, which differ from case to case.
“The reality is that people in this position may actually be asylum seekers but the means in which they came to Hong Kong was through trafficking,” Smyth says, citing first-hand accounts of asylum seekers published on the Table of Two Cities website. A human rights lawyer by profession, Smyth explains that collectively framing a vulnerable group as ‘illegal’ is negligent and bigoted. While the USM framework excludes the international refugee law, she adds, it still recognises those who have experienced torture and persecution and should protect trafficking victims accordingly.
Matt Friedman, head of Hong Kong-based anti-slavery group The Mekong Club, says laws addressing trafficking cases are glaringly absent in Hong Kong. According to the US State Department’s 2019 Trafficking in Persons report, the official number of victims in Hong Kong last year stood at 29 but, in reality, Friedman says this is just the “tip of the iceberg.”
“Because the government of Hong Kong does not have sufficient laws in place to adequately address the needs of trafficked persons, when many victims are identified, they often enter the system as illegal immigrants because they overstayed their visa,” says Friedman. And while a move to apportion funding and resources to trafficking cases was proposed in 2018, he adds: “Little progress has been made to fully operationalise a comprehensive set of protective procedures.”
The government of Hong Kong does not have sufficient laws in place to adequately address the needs of trafficked persons.Matt Friedman
With their claims rejected, Rakoto and Merina’s only hope is to win on appeal. If successful, they could be eligible to earn an income as “protection claimants” while they wait to be resettled in a country that’s deemed safe. It’s particularly crucial for Rakoto to find a job as a single parent.
“I want to work and give my son a good future in Hong Kong, but it’s illegal to help my family. I just can’t stop thinking about how I could get deported back to Madagascar anytime, and I’m scared that returning could put my son in danger.”
Acts of Kindness
These small deeds helped asylum seekers feel more at home in Hong Kong.
“I’ll always remember how I made my first friend in Hong Kong. During our first month here, we were trying to find The Vine Church in Wan Chai for Sunday service. We got lost and started asking for directions on the street.
When my husband and I weren’t looking, my 5-year-old daughter Hannah* asked a Chinese woman in English: “Are you Christian? Do you know about a church here? I’m tired and my mother won’t let us sit down until we find the church.”
I felt very nervous and embarrassed. But the lady just smiled at Hannah then asked me for the name of the place. I showed her a photo on my phone and, since she was heading the same way, she asked us to follow her.
I knew very little English and I couldn’t say much. My kids told her where we came from and that we’re asylum seekers. When we made it to the church, I thanked her many times. She gave us her number and said: “Call me if you want someone to talk to or if you get lost again.”
We’re still friends today. Sometimes she visits us at home, teaches me English words and I cook her native food from Alexandria! Her name is Linda Chan and she is one of my favourite people.”
“When I feel stressed, I cook. One day in Hong Kong, I went to buy groceries to make a special Yemeni chicken stew but couldn’t find all the ingredients at ParknShop. In the spices aisle, I started talking to myself in Arabic about what black pepper to get. I felt a young worker at the store, who was stacking jars of sauces and condiments, look over at me.
I immediately went quiet, grabbed the cheapest bottle of black pepper, and started looking for coriander. I came across several small jars of green powders but was confused because I couldn’t read English and they all looked the same to me. I thought maybe the shop worker could help, so I asked him in English where to find coriander.
He shook his head and said something in Cantonese. I didn’t know what to say next. But he stood up and gestured for me to lead him to the aisle. While I tried to explain, he searched for all kinds of herbs on his phone.
When an image of coriander came up, I shouted: ‘This!’ We both laughed. He took me to the refrigerator and picked a fresh stalk of coriander. For the next 10 minutes, he helped me find the rest of the ingredients on my list through Google translate.
We couldn’t understand each other through words but somehow it worked. That memory always makes me smile.”