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LCQ9: Torture claims
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     Following is a question by the Hon Dennis Kwok and a written reply by the Secretary for Security, Mr Lai Tung-kwok, in the Legislative Council today (January 21):

Question:

     Mandated refugees and screened-in torture claimants (refugees and claimants) have no right to work in Hong Kong but the Director of Immigration (Director) may exercise discretion to permit such persons to take employment.  Yet, some refugee groups have recently relayed to me their concerns that the Immigration Department takes unduly long time in processing applications from such persons for taking employment and the Director rarely grants such applications. In this connection, will the Government inform this Council:

(1) of the procedures that the Director follows, and the factors that he takes into consideration, in determining whether or not to permit refugees and claimants to take employment in Hong Kong, and the weight attributed to each of the factors; and

(2) of the average time taken by the Immigration Department to process the applications for taking employment in Hong Kong received from refugees and claimants in 2014; whether the Director has plans to shorten the processing time; if so, of the specific changes to be implemented and the expected outcome; if not, the justifications for that?

Reply:

President,

     Non-refoulement claimants whose claim has been substantiated by the Immigration Department (ImmD) or the Torture Claims Appeal Board (substantiated claimants) and refugees recognised by the United Nations High Commissioner for Refugees in Hong Kong (mandated refugees) have no right or permission to enter or remain in Hong Kong.  They are accordingly prohibited from taking any employment in Hong Kong under the Immigration Ordinance (Cap. 115).

     In February 2014, the Court of Final Appeal upheld in GA & Ors v. Director of Immigration [(2014) 17 HKCFAR 60] that substantiated claimants and mandated refugees have no constitutional or other legal rights to work in Hong Kong.

     Notwithstanding the above, the Director of Immigration (the Director) may exercise his discretion exceptionally and on a case-by-case basis to consider an application for permission to take employment from a substantiated claimant or mandated refugee (applicant) who has no other choice but be stranded in Hong Kong for a substantial period of time pending departure (or resettlement) and the prospect of the applicant's departure (or resettlement) in the near future is slim.

     Our replies to the two parts of the question are as follows:

(1) Upon receipt of an application from a substantiated claimant or mandated refugee for permission to take employment in Hong Kong, the Director will be prepared to consider the application further if he is satisfied that the applicant has no other choice but be stranded in Hong Kong for a substantial period of time pending departure (or resettlement) and the prospect of the applicant's departure (or resettlement) in the near future is slim.  The Director will consider such an application on a discretionary and exceptional basis, having regard to individual case merits and the entire circumstances of the case, taking into consideration an array of factors such as details of the intended employment and the prospective employer, personal circumstances and health condition of the applicant, security concerns (if any) to the community, impact on the relevant local employment sector, impact on the maintenance of effective immigration control in Hong Kong, whether there is any record of the applicant's failure to cooperate with the authority concerned in the course of any departure (or resettlement) arrangements, etc. The Director will also take into account any strong compassionate or humanitarian reasons or other special extenuating circumstances when making the decision.

     In order to facilitate the Director's consideration of the application, applicants are required to submit their requests with relevant information of the intended employment and the prospective employer, personal circumstances and health condition, etc. with supporting documents where applicable.

(2) All applications for permission to take employment from a substantiated claimant or mandated refugee will be handled by the ImmD as soon as practicable. The time required to assess and decide on an application depends on the complexity of individual applications and whether the applicant has submitted all the required information and supporting documents in a timely manner.  Among the applications received in 2014, the ImmD was able to make a decision in two to five weeks after all the required information and supporting documents had been received from the applicants.  Applicants will be reminded by the ImmD that any failure to submit the required information or supporting documents clearly set out in the ImmD's correspondences will inevitably lead to longer processing time.

Ends/Wednesday, January 21, 2015
Issued at HKT 16:23

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