The Government announced today (February 7) that a unified screening mechanism (USM) will commence operation on March 3 (Monday) to determine claims for non-refoulement protection against expulsion, return or extradition from Hong Kong to another country on applicable grounds including risks of (i) torture under Part VIIC of the Immigration Ordinance, Cap. 115; (ii) torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383; and (iii) persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (the Refugee Convention).
For persons subject or liable to removal or deportation (or whose surrender is requested in surrender proceedings) from Hong Kong who claim that the expulsion, return or extradition of them to another country would expose them to the above risks, they may lodge non-refoulement claims with the Immigration Department (ImmD). Under the USM, the ImmD will assess their non-refoulement claims on all applicable grounds in one go.
"The USM will enhance implementation of our policy objective to process claims for non-refoulement protection against expulsion, return or extradition to another country under procedures that meet with the high standards of fairness required by law, and at the same time prevent abuse by economic migrants who aim to protract their unlawful stay in Hong Kong," a Government spokesman said.
Procedures of the USM will follow those of the current statutory screening mechanism for torture claims made under Part VIIC of the Immigration Ordinance, Cap. 115, including the requirement for claimants to provide grounds and evidence in a non-refoulement claim form, and afterwards to attend a screening interview with immigration officers to provide information and answer questions relating to their claims.
To allow the Torture Claims Appeal Board (TCAB) to consider appeals/petitions lodged by aggrieved claimants in one go, the Chief Executive has delegated his authority under Article 48(13) of the Basic Law to all TCAB Members, in their personal capacity, to handle petitions in regard to grounds other than torture risks under Part VIIC of the Immigration Ordinance.
Suitable arrangements will be put in place for those claimants who have previously lodged a torture claim with the ImmD such that their non-refoulement claims on other grounds than torture risks under Part VIIC of the Immigration Ordinance will also be considered under the USM.
Claimants may continue to receive publicly funded legal assistance through the Duty Lawyer Service under the USM.
The United Nations High Commissioner for Refugees (UNHCR) will henceforth cease the screening of asylum claims under its mandate in Hong Kong. Foreigners who seek non-refoulement protection in Hong Kong may approach the ImmD to make non-refoulement claims.
"The commencement of the USM does not affect the Government's position that the Refugee Convention and its 1967 Protocol have never been applied to Hong Kong and our firm policy of not determining the refugee status of or granting asylum to anyone," the spokesman emphasised. "The UNHCR will continue to provide international protection to refugees in accordance with its mandate. In this connection, persons whose non-refoulement claim is substantiated under the USM on grounds of persecution risk will be referred to the UNHCR for recognition as refugees under its mandate and, if so recognised, arrangement of resettlement of them to a third country."
Following two Court of Final Appeal (CFA) judgments handed down in December 2012 and March 2013 respectively, the Administration briefed the Legislative Council's Panel on Security in July 2013 on its plan to introduce the USM, based on the existing statutory screening mechanism for torture claims made under Part VIIC of the Immigration Ordinance, to determine non-refoulement claims on all applicable grounds in one go under procedures that meet with the "high standards of fairness" required by law.
The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment has been extended to Hong Kong since 1992. Article 3(1) of that Convention provides that "no State Party shall expel, return ('refouler') or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture".
In June 2004, the CFA ruled in Sakthevel Prabakar v. Secretary for Security ( 7 HKCFAR 187) that given the momentous importance of a determination on torture claims to claimants, high standards of fairness must be demanded in the making of such a determination. The ImmD introduced an administrative screening mechanism for torture claims thereafter. In December 2009, the administrative screening mechanism was enhanced in light of the Court of First Instance's judgment in another judicial review case, FB & Ors v. Director of Immigration and Secretary for Security ( 2 HKLRD 346). Legislative provisions underpinning the enhanced administrative mechanism have commenced operation since December 2012.
Ends/Friday, February 7, 2014
Issued at HKT 17:01