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Interview with Lynette Nam, Legal Officer at Justice Centre Hong Kong

Last summer I was fortunate enough to spend three weeks as a summer intern at Justice Centre Hong Kong. Justice Centre Hong Kong is a non-profit human rights organisation working fearlessly to protect the rights of Hong Kong’s most vulnerable forced migrants: refugees, other people seeking protection, and survivors of torture, human trafficking and forced labour. The experience was an incredible insight into the difficulties faced by those seeking asylum in Hong Kong. I left with great admiration for many of the wonderful people I worked with, in particular my supervisor, Lynette Nam.

Lynette is an Australian qualified lawyer and holds a dual degree in Bachelor of Arts/Laws (Hon) from the University of Queensland. Before joining Justice Centre, Lynette worked at Fragomen Worldwide, an international immigration law firm, in Australia and Hong Kong.

I asked her a few questions about her experience as a Legal Officer.

What made you decide to work for Justice Centre Hong Kong?

When I started law school in Australia, I had no idea what I wanted to do. For a long time, I felt disengaged. It wasn’t until the fourth year of my degree, when I studied Refugees and Migration Law as an elective, that I came to realize the depths of injustice that forced migrants experience in their journey, and felt compelled to qualify and practice. When an opportunity at Justice Centre Hong Kong presented itself, it was an easy decision to make the leap from the corporate world to the human rights field.

The new government system for processing protection claims in Hong Kong is the Unified Screening Mechanism, introduced in March 2014. What are the main concerns with this new system and, in particular, what issues have you come across with your clients?

The primary concern with the new system is the quality of decision-making by both the first tier (Immigration Department) and second tier (Appeal Board) decision-makers. The reasoning given for refusing (what we often assess to be) meritorious claims is often irrational, and at times, rife with prejudice. In a recent example, the Appeal Board refused the appeal of a gay man because it was not accepted that he was gay. The reasons given for this disbelief included that he was not outwardly feminine (the Appeal Board specifically referred to the fact that he was broadly built, and was not wearing a feminine shirt or high heels, and that he claims he was raped by a man (the Appeal Board opined that he would have consented to sex with the male rapist if he were gay.)

The USM was implemented not by political will, but by judicial order. The ramifications of this are visible in the bare bone structure of the system. Other than the quality of decision-making, our concerns include the lack of policies and guidelines for interviewing vulnerable witnesses, including children and victims of sexual and gender-based violence; the lack of transparency in decision-making; the requirement for a detailed written signification containing sufficient facts to indicate legal grounds to lodge a claim. The foregoing issues all contribute to a troublingly low success rate of 0.7%.

For our clients, a significant barrier to their ability to move forward is the lack of durable solutions in Hong Kong. After an indefinite wait for their immigration (and where refused, appeal) decision, by which they are granted protection in Hong Kong, they are not given any pathways to residency or the right to work; but again face another indefinite and protracted period awaiting resettlement to a third country.

What are the main differences between your work at Justice Centre and your previous experiences in immigration and human rights law?

While I had previously practiced immigration law in Australia and also delivered human rights training to refugees on the Thai-Burma border, my work at Justice Centre is more fast-paced and frontline, in both the nature of the work and the issues we are tackling. It also has greater potential for impact. In my day-to-day work at Justice Centre, I am communicating directly with refugees, torture survivors, victims of trafficking and victims of forced labour, and to help them access protection and justice. I also identify cases of strategic importance to bring before the High Court.

What are the most challenging aspects of your current profession?

The most challenging aspect of my work is walking the daily tightrope between sustaining hope and managing expectations. Inevitably, clients pour a disproportionate amount of hope into Justice Centre. Where clients express a complete lack of hope, we also seek to support them in regaining their identity and purpose. However, given the low success rate and lack of durable solutions in Hong Kong, my work is often also one of expectation management. Other challenges include the lack of financial and human resources, and the dominance of xenophobia and racism in the wider domain.

What areas of your work at Justice Centre, and with human rights law in general, do you find most rewarding?

There is great satisfaction in achieving success, protection and justice for each individual client. What is also rewarding is our work in driving systemic change.

The flipside of a new and flawed system is the potential for change. At Justice Centre, we identify strategic cases to litigate, and engage in research, policy and advocacy work to magnify the impact of litigation. During my four years at the organisation, I have seen our work translate directly into small but important shifts in law and policy, that expand the rights of forced and/or exploited migrants in Hong Kong.

Next year you are attending a conference on torture rehabilitation and presenting specifically on gender-based violence victims. What are the main issues you will be highlighting in your presentation?

It is clear from working directly with migrant women that there are significant legal and practical hurdles for victims of gender-based violence seeking protection, justice and rehabilitation in Hong Kong, including a troublingly high rate of refusal, lack of means for rehabilitation and redress, and no prospect of a durable solution. Efforts to achieve gender justice in Hong Kong too often leave behind some of the most vulnerable and voiceless victims – those seeking asylum in the city who are fleeing gender-based violence, and/or remain trapped in cycles of abuse.

In recognition of this, I am conducting research to identify the key barriers to gender justice in Hong Kong, and explore how the international human rights framework may be utilised to advocate for equality, protection and justice.

I will be presenting this research at the 2nd Australia and New Zealand Refugee Trauma Recovery in Resettlement Conference in March 2019.

What are the international standards relating to the rights of those who have suffered gender-based violence? Do you think the protection afforded to victims by these standards is adequate? Why/Why not?

The international standards are contained in different conventions, which compliment each other, including CEDAW (Convention on the Elimination of All Forms of Discrimination), ICCPR (International Covenant on Civil and Political Rights), the Refugee Convention, UNCRC (UN Convention on the Rights of the Child) and CAT (Convention Against Torture). There is recognition that gender-based violence could constitute persecution and torture and that those who have been subjected to such violence should be afforded non-refoulement protection, rehabilitation and redress. While the principles are sound, protection appears generally unavailable and accessible in practice. The challenge is to convert the principles into practice.

8) In your experience, what are the psychological effects of suffering gender-based violence? How can trauma impact on an individual’s ability to make their claim for non-refoulement?

It is beyond my scope of expertise to give a detailed opinion on the effects of violence and impact of trauma. What I have observed, however, is that trauma manifests in different ways in different people. While one person may find it difficult to disclose incidents of sexual violence, another person may be fixated on irrelevant details associated with a particular incident. It is also not the case that every person who has experienced violence is traumatised.

In claiming protection, a person is expected to disclose all relevant facts in a coherent and detailed manner. It is also the case that decision-makers often expect survivors of violence to behave in a certain way. Decision-makers often incorrectly interpret manifestations of trauma (or sometimes the lack thereof) as indicators of lack of credibility.

How should legal systems and government departments adapt their rules of procedure to address the current concerns around victims of gender-based violence who seek protection in another country?

There should be recognition of state responsibility, in both the home country from which a victim has fled and the host country in which the victim is seeking asylum. In the current system, we see victims of gender-based violence being told to speak out, but being silenced by both the home country and host country when doing so. This is due to a perception that gender-based violence is a private act.

Asylum authorities should also adopt vulnerable witness procedures when interviewing potential victims of gender-based violence, in order to minimize retraumatisation and enable full participation.

How important is it that a legal officer of the same gender supports a victim of gender-based violence?

It is often the case that a victim of gender-based violence would prefer a lawyer of the same gender. It is important to respect the client’s choice, where possible. This is important in building trust and facilitating disclosure, and also helping the client regain control.

How can violent conflict leave women vulnerable to sex trafficking?

Women (and men and children) can become more vulnerable to sex trafficking in conflict situations, due to desperate economic situations, the weakening or complete breakdown of the rule of law, the lack of social and security services, among other reasons.

When people flee their homes, they leave behind the community structures that keep them safe for unfamiliar surroundings. They are often barred from working or otherwise stripped of their previous livelihoods. This makes them more open to taking risks or considering opportunities in illicit economies.

Refugees engaged in sex work are little discussed within humanitarian circles, why do you think it is so difficult for NGOs to respond to the concerns surrounding this practice?

A significant barrier is that a person who is trafficked is often controlled in such a way that their movements are restricted. Thus, those who are most vulnerable and in need are often unable to access the services of NGOs.

In your experience, what are the signals that your client is engaging in some form of sex work?

While we do not screen for sex work, or any other work, we do actively look for indicators that a client is (or is at risk of) being exploited. An incoherent account of their reasons for fleeing and travelling to Hong Kong, and any signs of control (being accompanied to appointments, or being unable to reach the client directly by phone) often indicate that a client may be in a situation of exploitation.

What are the main reasons, in your experience, that an asylum seeker will turn to this line of work?

In Hong Kong, persons seeking asylum live in a state of forced destitution. Desperation, the lack of a legalised framework for protection and fear of authorities, may make asylum seekers more vulnerable to exploitation.

Do you have any advice for students interested in embarking on a career in human rights law or working for an NGO?

If you are interested in human rights law and/or working for an NGO, before travelling down this path, first ensure that you are driven and committed. You may find yourself working the same (if not longer) hours than your fellow graduates, who will likely be making a great deal more in material terms. Commitment is important as change takes time. There is no quick fix, and your skills and experience will become increasingly valuable to a short-changed sector.

Where you find yourself interested, in spire of these factors, I would encourage you to steer your career in this direction, whether by doing pro bono work, by undergoing an internship, or in any way that keeps you engaged and exposed until the right opportunity comes along. When you do take the leap, what you will find is work that is raw, stimulating and immensely meaningful, and that provides an opportunity to connect with all the layers and colours of humanity. There is nothing else I would rather be doing.

Finally, it is a privilege to do this work. We are privileged to be educated and living in a peaceful society, where human rights matter. Make good use of it; even if you find yourself heading down a different path, there are ways to contribute.

Interviewer: Kathryn Handley, Vice President CUSWL