LCQ4: Torture claims

     Following is a written reply by the Secretary for Security, Mr Lai Tung-kwok, to a question by the Hon Tang Ka-piu in the Legislative Council today (May 7):


     It has been reported that there was a sharp upward trend in recent years in the number of cases in which persons who were seeking asylum and making torture claims (collectively referred to as "claims") committed criminal offences during their stay in Hong Kong, and some of the offences were of serious nature.  It has also been reported that most of the people interviewed consider that the policies on handling such claims in Hong Kong are too lenient and flawed with loopholes, and such claimants' stay in Hong Kong has created law and order problems.  In this connection, will the Government inform this Council:

(1) of the respective numbers of claims received and accepted by the authorities as at the end of April this year;

(2) regarding those cases the claims of which were rejected in the past five years, of the average time taken by the authorities to assess the claims and the average length of stay of the claimants in Hong Kong;

(3) regarding those cases the claims of which were rejected in the past five years, of the respective numbers of claimants who had been absent from screening interviews and those claimants who stayed in Hong Kong throughout the period of appeal or judicial review, with a breakdown by the number of years of their stay in Hong Kong;

(4) of the following information of the claimants in the past five years: (i) the number of claimants who registered their marriage in Hong Kong; (ii) the total number of Hong Kong-born children of the claimants and the average number of Hong Kong-born children of each claimant; (iii) the number of claimants arrested for  alleged contravention of criminal offences (including those under the Immigration Ordinance (Cap. 115)) in Hong Kong before their claims were made, (iv) the number of claimants arrested for criminal offences after they had made the claims, and (v) the number of claimants arrested for illegally taking up employment while their claims were being assessed;

(5) whether it knows which Southeast Asian countries are States Parties to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; whether it has conducted any study on the policies of those countries on handling torture claims for its reference, and whether it knows the following information of those countries: (i) the number of claims accepted in the past five years, (ii) the coverage of the humanitarian aid rendered to the claimants, and (iii) their related expenditures each year; and

(6) given that the Immigration Department implemented a unified mechanism in March this year to assess all non-refoulement claims, of the details of the mechanism and the expected completion time for processing claims which are pending screening?



     The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) has been applied to Hong Kong since 1992. The Immigration Department (ImmD) introduced an enhanced administrative screening mechanism for torture claims in December 2009 to ensure the procedures meet with the high standards of fairness as required by the Court. Subsequently, the Legislative Council passed amendments to the Immigration Ordinance (Cap. 115) in July 2012 to provide for a statutory framework, which commenced operation in December 2012, to underpin the screening mechanism for torture claims.

     Following the Court of Final Appeal (CFA)'s rulings in two relevant judicial review cases in December 2012 and March 2013, the Government commenced operating a unified screening mechanism (USM) on March 3, 2014 to screen, in addition to torture claims, non-refoulement claims lodged by any foreigners who do not have the right to enter and remain in Hong Kong (illegal immigrants and overstayers) against their removal from Hong Kong to another country on other applicable grounds including risks of 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) (BOR3 risk) and persecution (persecution risk) 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 current statutory screening mechanism for torture claims to meet with the high standards of fairness required by law.
     My reply to the various parts of the question is as followsĄG

(1) to (3) and (6) The Administration introduced an enhanced administrative screening mechanism for torture claims in December 2009. At that time, 6 395 torture claims were outstanding. In addition, from December 2009 to February 2014, the ImmD received 4 969 new torture claims, making a total of 11 364 claims. During the same period, the ImmD determined 4 755 torture claims (22 substantiated and 4 733 rejected).  Separately, 4 108 claims were withdrawn or cannot be further pursued.  As at end of February 2014, there were 2 501 torture claims pending determination.

     Among the 4 733 rejected torture claimants, 1 535 have left Hong Kong. The rest is remaining in Hong Kong for such various reasons as having made a non-refoulement claim on applicable grounds (other than torture) following the rulings by the CFA in December 2012 and March 2013, having applied for judicial review, being imprisoned, etc. Counting from the date on which their torture claim was rejected by the ImmD, they have been staying in Hong Kong for an average of 13 months.

     When the USM commenced operation on March 3, 2014, apart from the 2 501 torture claims pending determination then, there were 2 962 other non-refoulement claims lodged by persons whose torture claim was previously rejected or withdrawn, and another 1 236 non-refoulement claims lodged on applicable grounds (other than torture) by persons who have never made a torture claim before, making a total of 6 699 outstanding non-refoulement claims.  

     The ImmD must screen claims under procedures that meet the high standards of fairness required by the Court. Before commencement of the USM, most torture claims (nearly 70 per cent) could be determined within five months under the statutory screening procedures, including submission of claim forms and supporting documents by the torture claimants, arranging and conducting screening interviews, and then determination by the ImmD's case officers. Nevertheless, more time may be needed for these screening procedures if the claimant did not cooperate (e.g. claimant did not contact his assigned duty lawyer, failed to attend scheduled interviews without reasonable excuse, seeking extensions to produce further supporting documents and evidences but submitting no such information subsequently, etc.)  Of the 4 056 interviews arranged by the ImmD from December 2012 to February 2014, 1 685 (around 42 per cent) could not be completed as scheduled.

     Under the USM, the ImmD is required to take into account, in addition to torture, other applicable grounds including BOR3 and persecution risks in screening each non-refoulement claim in a manner that meets the high standards of fairness required by the Court. Generally speaking, as the ImmD will screen each non-refoulement claim on all applicable grounds in one go, the screening and removal process should become more effective as claimants can no longer lodge sequential claims on different grounds to protract their presence in Hong Kong. The ImmD estimates that more than 1 500 non-refoulement claims can be determined in 2014-15.

(4) The ImmD does not maintain the relevant statistics.  The Immigration (Amendment) Ordinance 2009 came into effect on November 14, 2009, adding a new section 38AA to the Immigration Ordinance to prohibit illegal immigrants or persons who are subject to removal or deportation orders from taking any employment or establishing/joining in any business. From the commencement of the Ordinance to end February 2014, 743 non-ethnic Chinese illegal immigrants (NECIIs) and overstayers released on recognizance (most of them being asylum seekers or torture claimants) were arrested by the ImmD for breach of section 38AA.  Separately, in the past five years, 2 607 NECIIs and overstayers were arrested by the Police for other criminal offences (mainly theft, common assault or drug related offences).

(5) When formulating the relevant mechanisms (including the enhanced administrative screening mechanism in 2009, the statutory mechanism in 2012 and the current USM), the HKSAR Government drew reference to the experience of neighbouring countries and other common law jurisdictions.

     According to information on the United Nations website, Cambodia, Indonesia, Laos, the Philippines, Thailand, Vietnam, the East Timor, etc. are signatories to the CAT. The Administration does not maintain relevant statistics and expenditures of these countries.

Ends/Wednesday, May 7, 2014
Issued at HKT 16:48