Tuesday, April 03, 2012

Kafka With Local Characteristics: Ben Hlavaty's Tale

We'll let the Taipei Times start us off:
The problems for Ben Hlavaty, a US citizen, began when he and his Taiwanese spouse divorced in May 2008. Until then, Hlavaty had an Alien Resident Certificate (ARC) through his marriage and did not need a work permit to work at the TFD, his employer since December 2007.
Ben's press conference and other links. This story is long and convoluted, but it tells a tale that over the years I've seen many variations on. If you read between the lines, you can easily see that somewhere along the line, somebody with access to his records or knowledge of his work history decided to screw him -- it is hard to see otherwise how anyone could have decided he was working in Taiwan illegally for three years with an ARC and paying taxes and receiving insurance.

LINKS to Ben's presser:  FocusTaiwan  公視 (Video)  民視 中央社 (CNA Chinese) 新浪網 (Sina)

Ben's story in his own words is below the fold. Go thou and read!!!!

On Thursday, March 29, 2012, the Taipei High Administrative Court ruled against my appeal of the Council of Labor Affairs’ decision to ban me from working and order my deportation as punishment for my previous employment with the Taiwan Foundation for Democracy. Though I possess a master’s in Taiwan Studies and have taken a serious interest in Hengchun Folk Music, I may have been able to treat expulsion from Taiwan as a messy divorce and thus start my life anew elsewhere. That is, I would be able to do so if it were not for the one whom I love even more deeply than myself – my five-year-old son Isaac.

Of course, it was common knowledge at the Foundation that I was a divorcé to a local woman and a single father in Taiwan. So when I received my new Taiwan resident visa in Hong Kong and applied for my Alien Resident Certificate in Taipei, all accomplished with the smoothest convenience thanks to the Ministry of Foreign Affairs, I was overjoyed not only to live near my son and try to start a friendship with his mother, but also to be working as a proud part of the whole mechanism that built Taiwan’s image on the international stage as “Asia’s beacon of democracy”.

When in late 2010 the newly appointed Foundation President Huang Teh-Fu (黃德福) under the Ma administration fired me without cause given and refused my three-month severance pay, I felt it to be an irony of Orwellian proportions. My other superiors believed I had worked very well, even in the absence of my director who was due to return soon from paternity leave. Furthermore, how could a human rights assistance organization trample on the rights of workers? Naturally, I offered a legal challenge to President Huang's decision. I was successful, and a settlement was reached. However, before I could find a new job to support my son, the Bureau of Labor Affairs demanded an explanation as to why I had been illegally working during my three-year employment with the Foundation.

Figuring this to be a bureaucratic mistake, I submitted my defense, including copies of my MOFA invitations, my income tax records, my ARC that lists my work for the Foundation as my reason of stay, etc. Then I was fined NT$30,000 for not having a permit through the proper channels. On the advice of civil servants, I submitted an appeal, believing that the mistake would clear up. Then the CLA slapped me with a three-year work ban and ordered me to leave Taiwan within fourteen days.

With the help of sympathetic CLA employees, I wrote my appeal of the deportation and submitted it to the CLA Appeals Committee, who well over a month later felt that they could not review it and handed it to the top level, the Executive Yuan. The EY, in turn, sent me a letter, ordering my deportation to proceed, as my appeal was improperly written according to EY standards and I could not be contacted to change it. I then filed a complaint at the American Institute in Taiwan, who subsequently told me that they were not in the habit of telling the Taiwan government what to do.

As for gaining an ARC through my split custody, the Bureau of Consular Affairs has repeatedly told me to get a work permit first, after which I could change the reason to that of my child. Together with my son's grandparents, I submitted a written plea explaining my present work ban by the CLA, meaning that all applications of my work permit were to be denied for three years. BOCA had a private talk with me afterward. I was told to find a cram school and to get a work permit, after which I may be able to change my reason of stay. Later, I received a phone call from BOCA requesting me to return the file they had forgotten to take back from me.

At court, my defense covered many sides. We produced copies of my labor insurance from my Foundation days, which must have meant that the Bureau of Labor Insurance, who is subordinate to the CLA, had found me legal during those three years. We pointed out that I have a child in Taiwan to whom I have a responsibility, and I possess split custody. We explained that I had a valid ARC and resident visa, I reported all my taxes and I received health insurance. And then there is Article 48 of the Employment Services Act, which exempts work permits for counselors and researchers of governments and their subordinate academic research institutions. In fact, it seems to me that certain EY bodies believed I was legal under Article 48, and then after I was fired and agreed to a settlement, changed their minds.

As stated before, I lost. When my good Taiwan friends ask me why I had lost, I feel embarrassed as I really do not know. The court simply told me that my boy was still small and encouraged me to appeal the decision and also to find another way to stay in Taiwan. I was also told off the record that I had done nothing wrong. Regardless of good intentions, I find little comfort in these “jiayous” or unofficial reassurances of my innocence. After hearing my verdict, I could do nothing but think about Isaac and how he grows quiet when he thinks his baba will leave him. My Taiwan friends and family express disbelief at this story, assured that family matters would take highest precedence in court. How could such twisted justice in the end prevail in Asia’s beacon of democracy?

Though I write this with dismay, I realize that I can do nothing but appeal to a higher power. If I am going to be separated from my boy for my work in promoting Taiwan’s democracy and human rights at the request of MOFA, then I will go down fighting as an example to Isaac. Taiwan is my home, and though I had failed as many things, I will not fail as a father.
_______________________
Don't miss the comments below! And check out my blog and its sidebars for events, links to previous posts and picture posts, and scores of links to other Taiwan blogs and forums! Delenda est, baby.

23 comments:

MKL said...

Hang in there, ben! And good luck!

Readin said...

Regarding the picture of what appears to be an atrium of an office building: When I lived in Taiwan in the early 1990s, I saw such atriums (atria?) for my first time. The Daiya Baihua (Big Asia Department Store?) building (one of the tallest buildings in the city at the time) had one that started as soon as you got to the floor above the department store - and the atrium extended all the way to the top of the building.

I tutored a person at a tall new office building which I think was near the Songshan district and it too had a large atrium, this one extending from the first floor to to the top floor.

Both atriums (atria?) were extremely tall. In the US I had never seen an atrium taller than a few stories. But the ones I saw in Taiwan were 15, 20, maybe more.

I've often wondered about it. Was it Fengshui? Something to do with Earthquake resistance? Does anyone know?

Anonymous said...

It's not a punishment for his "previous employment with the Taiwan Foundation for Democracy." That Foundation is non-partisan, or as some people put it: bipartisan, in nature. Feel sorry for what he had been thru, and wish him all the best ever since.

何光煒 said...

I had the pleasure of sitting down with Ben and discussing his situation a couple of months ago. It's a really aggravating situation that, frighteningly enough, could happen to anyone, but it just happens that it affected a nice, law-abiding, respectful guy who has more of a reason than most to remain in Taiwan. I'm rooting for him.

Michael Turton said...

Readin, that one was in the Taichung City hall. I don't know why they are that way either. Something about heat disposal?

Michael Turton said...

That Foundation is non-partisan, or as some people put it: bipartisan, in nature.

I think you should read more closely about the changes since Ma came into office.

Readin said...

I'm a bit confused by one thing. The child in the picture in the Taipei Times isn't an infant. By now I would think the paperwork for the child's US citizenship (by having an American father) would be completed. Since Mr. Hlavaty has custody of the child, why can't he bring the child with him to the US? Why does he say "If I am going to be separated from my boy..."?

Marc said...

Readin asks about atrium style in architecture. Atria have been an architectural feature since Roman times. The interior central courts of antique Roman buildings are the inspiration for the modern style. Their main function is to create a sense of light and space in an enclosed interior.

Modern atria are found all over the world - notably the Shanghai Grand Hyatt, Lincoln Center in New York, the Burj al Arab in Dubai - and perhaps the most magnificent - the atrium of the Grand Hyatt in San Francisco.

The Taichung atrium was probably designed and built by the Sinotech firm, the former gov't engineering agency, since it resembles their HQ in Taipei. This style of atria is more practical or traditional, but not very exciting.

Michael Turton said...

Readin:

His custody is joint.

Michael

freetaiwan said...

Just to get things straight (because the Taipei Times article is a great example of chabuduo journalism):

- Ben Hlavaty was married to a ROC national
- Ben Hlavaty got a divorce from said ROC national
- Ben Hlavaty fathered a child with another ROC national and they were not married at time of birth or now

Had he been married to the mother, he could easily get a resident visa and ARC to be with his wife and son.

That should not be mixed up with his conflict with government agencies and semi-governmental agencies (that foundation for instance). In fact, there is no relation between the two. By working in a political environment, he put himself in a vulnerable position, especially as a foreigner.


By the way, if in the US a non-citizen woman gives birth to a child, she does not get any right to remain in the US unless the father is a US citizen AND acknowledges the child.

何光煒 said...

freetaiwan seems to have little sympathy for Ben. But you can't blame him for getting involved in a "political situation." He worked at a foundation meant to promote democracy--an idea that should be universally accepted in Taiwan. What I'm most curious about is why he got fired in the first place.

Anonymous said...

Hello, this is Ben Hlavaty. I am very happy to see that this news has garnered this much discussion.

I would like to clarify that I do not have any children out of wedlock. My son's mother and I were married at the time of his birth.

Thank you for your interest, as it strengthens my hope and courage.

Readin said...

Thanks Marc, but the San Francisco Hyatt is very ornate and the Lincoln Center is both ornate and not very tall. From what I've seen in the West, atriums are not very tall or they are extremely ornate - the latter indicating that the atrium is there to impress, not so much for funtionality.

Atria, particularly very high atria, don't come cheap. They use up a lot of space that could otherwise be rented out as offices. But what I saw in Taiwan was very high atria that wasn't very ornate. It gave me the impression that it HAD to be there and that they weren't willing to spend more money on it than absolutely necessary.

Anonymous said...

Thanks for the details freetaiwan. I'm shocked that Taipei Times omitted such crucial deails of Ben's situation. Hopefully, TT will publish a clarification.

Readin said...

freetaiwan: "Had he been married to the mother, he could easily get a resident visa and ARC to be with his wife and son."

何光煒: "But you can't blame him for getting involved in a "political situation.""

Can I blame him for having a child out of wedlock? Apparently if he had been a man (by which I mean a real man, not just someone with male equipment) he would be able to get a resident visa to stay with his family.

Michael Turton said...

Thanks for the details freetaiwan. I'm shocked that Taipei Times omitted such crucial deails of Ben's situation. Hopefully, TT will publish a clarification.

Can I blame him for having a child out of wedlock? Apparently if he had been a man (by which I mean a real man, not just someone with male equipment) he would be able to get a resident visa to stay with his family.

Hello, this is Ben Hlavaty. I am very happy to see that this news has garnered this much discussion.

I would like to clarify that I do not have any children out of wedlock. My son's mother and I were married at the time of his birth.


Free, given that you are slanderously incorrect, what does a real man do?

Michael

Anonymous said...

Why not just get a JFRV through your son? Problem solved.

Marc said...

Well, Readin, as I said, the atrium design such as that in the photo is a more traditional modern design, done without complex geometries of the others I mentioned.

I suppose modern atria fulfill some of the concepts of modern architecture - the straight, clean lines and the use of empty space, austerity, an encouragement not to clutter or fill space with anything. (If you look around at most new architecture in Taipei it also fulfills these concepts.)

I have spent a lot of time at one atrium building in Taipei and observed how people use the space. It lends itself to more individuality, because it removes the complexity of social interaction that would typically occur in a full-floor design. The opaque ceiling lets in light to create a feeling of freedom of thought, of spirit. Often, I saw employees doing qi gong or tai ch'i in the lobby. Everything in the building lends itself to calmness, reflection, de-stress.

I asked if the building was more earthquake resistant. It was not more than other building designs, though that would depend more on the materials used, not the design itself. It is also not particularly a green design, in that the whole building incl the vast empty interior space is still heated or cooled artificially.

Steve said...

"Why not just get a JFRV through your son? Problem solved."

I don't actually think that's possible in Taiwan because the son is HIS dependent.

His best alternative would have been to apply for an APRC before all of this happened (having a child allows you to add marriage-based ARC time to time spent on a work-based ARC or even a second marriage), but having been served with a deportation order I don't see how that is now possible.

Readin said...

Ben Hlavaty: "I would like to clarify that I do not have any children out of wedlock."

Me earlier (before seeing Mr. Hlavaty's post):Can I blame him for having a child out of wedlock?

Me now: Mr. Hlavaty, I'm sorry for criticizing based on faulty information.

Anonymous said...

@Steve 11.07

As long as the son is a Taiwanese citizen, he can get a JFRV based on it. I know a few foreign parents in the same situation and they all have JFRV based on their children. As long as the child is under 18 (or 21 or whatever the legal age is in Taiwan), it is easy to do.

Steve said...

I'd like to point out that I may have been wrong in saying Ben couldn't have obtained a JFRV based on his Taiwanese child.

Page 10 of this document:
http://www.immigration.gov.tw/public/Data/11714474471.pdf seems to say that he could have applied for an extension of his JFRV, but the wording strongly implies it's up to the whim of the immigration authorities as to whether he'd be successful.

Attentive Reader said...

Where is Free Taiwan's apology or explanation?