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LCQ14: Unified screening mechanism
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     Following is a written reply by the Acting Secretary for Security, Mr John Lee, to a question by Hon Tam Yiu-chung in the Legislative Council today (June 18):

Question:

     It has recently been reported by some media that the number of torture claim cases received by the Immigration Department is rising, but only very few of such cases have been substantiated after screening. There are views that the continuous increase in the number of torture claim cases has not only consumed public money, but also given rise to problems such as claimants engaging in illegal employment and criminal activities during their stay in Hong Kong. In this connection, will the Government inform this Council:

(1) of the time taken and expenditure incurred (including the expenditure for processing appeals lodged upon rejection of claims) on average in processing a torture claim by the authorities in the past three years; and the longest time taken for processing a torture claim and the expenditure on that case; and

(2) whether the authorities have studied ways to expedite the processing of torture claim cases and strengthen the immigration control system to reduce the impact of the rising number of torture claims on the Hong Kong community; if they have studied, of the details; if not, the reasons for that?

Reply:

President,

     Article 3(1) of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, applied to Hong Kong since 1992, 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 Court of Final Appeal (CFA) ruled that "high standards of fairness" must be demanded in the making of such determination. In view of the ruling by the Court of First Instance of the High Court in FB & Ors v. Director of Immigration ([2009] 2 HKLRD 346), the Immigration Department (ImmD) introduced an enhanced administrative screening mechanism for torture claims in December 2009 to ensure that the procedures would meet the high standards of fairness required by law. Subsequently, the Legislative Council (LegCo) passed amendments to the Immigration Ordinance (Cap. 115) (the Ordinance) in July 2012 to provide for a statutory framework, which commenced operation in December 2012, to underpin the screening mechanism for torture claims.

     Separately, following the CFA's rulings in two other judicial review cases, namely Ubamaka Edward Wilson v. Secretary for Security ([2013] 2 HKC 75) and C & Ors v. Director of Immigration ([2013] 4 HKC 563) in December 2012 and March 2013 respectively, the Administration commenced operating a unified screening mechanism (USM) in March 2014 to screen non-refoulement claims lodged by persons who do not have the right to enter and remain in Hong Kong against their removal from Hong Kong to another country on applicable grounds (other than torture under the Ordinance), including risks of torture or cruel, inhuman or degrading treatment or punishment (CIDTP) under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance (Cap.383) and persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees. Procedures of the USM follow those of the statutory screening mechanism for torture claims, which were enacted following extensive consultation with stakeholders and scrutiny by the LegCo, to ensure that they meet the high standards of fairness required by law.

     My reply to the various parts of the question is as followsĄG

(1) The ImmD must screen claims under procedures that meet the high standards of fairness required by law. Before the USM, most torture claims (nearly 70%) could be determined within five months after the commencement of the screening process under the statutory screening procedures, including submission of claim forms and supporting documents by the torture claimants, arranging and conducting screening interviews, and then making of determination by case officers of the ImmD. Claimants aggrieved by the ImmD's decision may lodge an appeal with the impartial statutory Torture Claims Appeal Board (TCAB) within 14 days. The TCAB requires three months on average to determine an appeal (longer if an oral hearing is required).

     However, the time required to screen a claim depends on whether the claimant is cooperative in providing the relevant grounds and documents. The processing time needed would be longer if the claimant does not co-operate (e.g. failing to contact his assigned duty lawyer, failing to attend scheduled interviews without reasonable excuse, failing to submit further supporting documents and evidences after seeking prolonged time extension, etc.). Among torture claims determined by the ImmD since the introduction of the enhanced administrative screening mechanism, the longest time taken to complete the screening process is 46 months. (According to the ImmD's record, the concerned claimant submitted the claim form almost 13 months after the commencement of the screening process, during which he sought to extend the deadline six times on various grounds such as supporting documents pending, requesting translation, and requesting access to his own personal data, etc. During the seven months after his claim form was submitted, his legal representative challenged the procedure of the enhanced administrative screening mechanism on different various grounds, and the ImmD was required to address these challenges after seeking legal advice. Within the next 20 months, the ImmD arranged for screening interviews 15 times (out of which the claimant was absent due to sickness for three times, and the screening interview could not be conducted because his legal representative was unavailable to attend for eight other times. In the five months after the last interview was completed, the claimant repeatedly requested the ImmD to withhold its determination so as to allow him more time to submit additional supporting documents. After his last such request was rejected, the ImmD determined the claim within three weeks.) For claims screened under the statutory screening mechanism which commenced in December 2012, the situation has improved - the longest time taken to complete the screening process of a claim is 13 months. (According to the ImmD's record, the concerned claimant submitted the torture claim form within a month after the commencement of the screening process. In the following 12 months, the ImmD arranged screening interviews nine times, out of which the legal representative was unavailable to attend for five times, and the screening interview could not be conducted for three other times because the claimant had absconded (re-arrested subsequently), absent due to sickness, etc. After successfully completing the interview, the ImmD determined the claim in seven days). The procedures of the USM follow those of the statutory screening mechanism and should be effective in screening non-refoulement claims while ensuring that high standards of fairness are met.

     Under the USM, the ImmD is required to take into account, in addition to torture under the Ordinance, other applicable grounds including CIDTP and persecution risks in screening each non-refoulement claim in a manner that meets the high standards of fairness required by law. Generally speaking, as the ImmD will screen all applicable grounds in one go, the screening and removal process should become more effective by preventing claimants from lodging sequential claims on different grounds to protract their presence in Hong Kong.

     The Administration's expenditure on screening of claims for the past three years is set out in Annex.

(2) After the USM has been implemented for a period of time, the Administration will consider how to improve and expedite the screening procedures while maintaining the high standards of fairness, taking into account operational experience and overseas practices. Further, as requested by the Duty Lawyer Service (DLS), the ImmD would continue to commence the screening process for eight claims every working day upon commencement of the USM. The ImmD estimates that 1 500 determinations can be made within the first year of the USM's operation (i.e. the 2014-15 financial year). The Administration will discuss with the DLS on increasing the daily number of case referrals so as to expedite the progress of screening.

Ends/Wednesday, June 18, 2014
Issued at HKT 19:30

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