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Following is a question by the Dr Hon Elizabeth Quat and a written reply by the Secretary for Security, Mr Lai Tung-kwok, in the Legislative Council today (April 29):
Question:
The Government implemented the "unified screening mechanism" in March 2014 to determine claims for non-refoulement protection against expulsion, return or extradition from Hong Kong to another country on applicable grounds, including risks of torture under Part VIIC of the Immigration Ordinance (Cap. 115); torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights in 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 (non-refoulement claims). It has been reported that recently 13 men of Indian nationality made non-refoulement claims immediately upon their arrival in Hong Kong by air (with 12 of them taking the same flight), and nominated the same lawyer in Hong Kong of South Asian descent to represent them. Moreover, six non-refoulement claimants from Africa and three others of South Asian descent were arrested earlier for engaging in drug trafficking and illegal employment respectively during their stay in Hong Kong. When attending a committee meeting of this Council last month, some government officials pointed out that the number of non-refoulement claims received between March and the end of last year was significantly higher than before, and considered that there might be an abuse of the relevant mechanism. In this connection, will the Government inform this Council:
(1) of the maximum number of non-refoulement claims that the authorities can process annually, calculated on the basis of the existing screening mechanism and resources;
(2) as government information indicates that the number of pending non-refoulement claims was 9 618 as at the end of 2014, and that the number of such claims is on the rise, of the measures that the authorities will take to enhance the efficiency of the screening procedures, as well as the timetable for and details of a review of the unified screening mechanism;
(3) what items of humanitarian assistance that the authorities currently provide to non-refoulement claimants, as well as the number of recipients of such assistance and the relevant expenditure per person in each of the past three years;
(4) of the number of non-refoulement claimants arrested by the Police in each of the past three years during their stay in Hong Kong, with a breakdown by type of offences in which they were involved; of the authorities' measures to ensure that such claimants will not pose any problem to Hong Kong's law and order;
(5) whether the authorities will review the arrangements for granting visa-free access to nationals of certain countries, with a view to eliminating any abuse of the mechanism for non-refoulement claims and the problem of people working illegally in Hong Kong through making such claims;
(6) of the average length of stay in Hong Kong of non-refoulement claimants at present, and whether the authorities have assessed if it is common among such claimants to prolong the screening procedures by deliberately being unco-operative;
(7) of the current number of duty lawyers providing "publicly-funded legal assistance" to non-refoulement claimants and the arrangements for such claimants to nominate lawyers to represent them; among the lawyers who handled non-refoulement claims in the past five years, of the respective numbers of claims handled by the top 20 lawyers who had cumulatively handled the greatest numbers of such claims, and the number of such claims which were eventually found substantiated;
(8) whether the authorities will consider abolishing the arrangements for non-refoulement claimants to nominate lawyers to represent them, so as to eliminate the abuse of the mechanisms for non-refoulement claims and for publicly-funded legal assistance; if they will, of the details; if not, the reasons for that; and
(9) given that the estimated expenditure on publicly-funded legal assistance for non-refoulement claims in 2015-2016 is $108 million, of the authorities' measures to reduce such expenditure?
Reply:
President,
The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) has been applied to Hong Kong since 1992. Article 3 of the CAT stipulates 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 in the Prabakar case that the Government must screen claims lodged under Article 3 of the CAT (torture claims) under procedures that met "high standards of fairness". In December 2008, the Court of First Instance (CFI) of the High Court ruled in the FB case that the Government must implement a series of measures, including the provision of publicly-funded legal assistance to claimants during the torture claim screening process, to meet the high standards of fairness required.
The Government commenced operating an enhanced administrative mechanism in December 2009 to ensure that torture claims were screened under procedures meeting the high standards of fairness required by law. The statutory procedures underpinning the enhanced administrative mechanism commenced in early December 2012. Subsequently, pursuant to two relevant rulings by the CFA in December 2012 and March 2013, the Government commenced operating a unified screening mechanism (USM) (the procedure of which follows those of the statutory screening mechanism for torture claims) to screen non-refoulement claims lodged by foreigners subject or liable to be removed from Hong Kong to another country on applicable grounds. Apart from torture, these applicable grounds include (i) cruel, inhuman, or degrading treatment or punishment (CIDTP) under Article 3 of the Hong Kong Bill of Rights, and (ii) persecution drawing reference to Article 33 of the 1951 Convention relating to the Status of Refugees (the Refugee Convention). Torture claims lodged before commencement of the USM in March 2014 have become non-refoulement claims under applicable transitional arrangements.
Non-refoulement claims lodged under the USM are not asylum claims. The Refugee Convention and its 1967 Protocol have never applied to Hong Kong. The Government maintains a firm policy of not granting asylum to or determining the refugee status of anyone.
Our policy objective is to screen non-refoulement claims effectively and in accordance with the high standards of fairness required by law, to provide non-refoulement protection to those substantiated claimants, and to remove rejected claimants from Hong Kong as soon as possible. Lodging a claim does not change the fact that non-refoulement claimants are illegal immigrants or overstayers. The ImmD will periodically review a claim even if it has been substantiated; if the risk giving rise to the claim has ceased to exist due to changes in circumstances of the claimant or the risk state, the ImmD will consider revoking his non-refoulement protection and removing him from Hong Kong.
My reply to the various parts of Dr Hon Quat's question is as follows:
(1) After commencement of the USM, in 2014-15, the ImmD has determined 1 509 non-refoulement claims. With the experience garnered, the ImmD expects that, with its existing manpower, the number of non-refoulement claims determined will increase to at least 2 000 in 2015-16.
(2) Having regard to operating experience, the Government is reviewing the existing screening procedures for more effectiveness while meeting the high standards of fairness. Our initial proposals include (i) improving the claim form, (ii) streamlining the arrangements for scheduling screening interviews, (iii) providing screening bundles to claimants to save them from having to lodge a personal data access request and their lawyers' time and costs for having to go through personal records that are irrelevant to the claim, and (iv) with reference to overseas experience (from other common law jurisdictions including the United Kingdom, Canada, and Australia), considering the introduction of a standardised legal cost for handling each claim (which can be increased where the individual circumstances so justify). The Hong Kong Bar Association (HKBA), the Law Society of Hong Kong (LSHK), the Duty Lawyer Service (DLS), and some non-governmental organisations have provided initial responses to our proposals. The Government is consolidating and considering their views.
(3) Non-refoulement claimants are illegal immigrants or overstayers. According to the Immigration Ordinance, Cap. 115, they may not take up employment in Hong Kong. On humanitarian grounds, the Government, in collaboration with non-governmental organisation, has been offering in-kind assistance, including temporary accommodation, food, clothing, other basic necessities, transport and public utilities allowances, and counselling to claimants in need to prevent them from becoming destitute. The relevant expenditure and service users during the past three years are tabulated below:
Financial Humanitarian Service users
year assistance (monthly
($million) average)
--------- ------------- -------------
2012-13 191 5 687
2013-14 204 5 153
2014-15 246 7 357
In addition, the Hospital Authority or the Social Welfare Department will grant one-off waivers of medical expenses at public clinics or hospitals to claimants on a case-by-case basis. If minor claimants will not be removed from Hong Kong within a short period and would wish to attend school whilst here, the Education Bureau will arrange for their school placements as appropriate.
(4) Any person in Hong Kong, regardless of his background, should abide by the laws of Hong Kong. Since 2012, the numbers of non-ethnic Chinese illegal immigrants or overstayers on recognisance (mostly non-refoulement claimants) arrested for unlawful employment or other criminal offences (mainly theft, physical assault, or drug-related offences) are tabulated below:
Year Unlawful Other criminal
Employment offences
---- ---------- --------------
2012 190 493
2013 165 659
2014 166 738
2015 40 225
(January
to March)
In recent years, we have observed that unlawful employment activities of non-Chinese illegal workers had shifted from traditional black spots of illegal workers in urban areas (e.g., where they transport goods or hawk etc.) to dispersed remote areas of the New Territories such as recycling yards, scrap yards, etc. The ImmD will continue to take comprehensive enforcement action on the basis of intelligence and expand the area of operations, making the operations more effective. The ImmD will also strengthen its co-ordination with other law enforcement agencies (including the Police and the Labour Department) to take joint action, and dispatch personnel to black spots for inspections and arrests. In 2014, the ImmD has conducted over 13 000 anti-illegal workers actions, of which over 500 were joint actions with other departments. Further, to raise public awareness of the serious consequences of unlawful employment, the ImmD launched a series of promotional activities, such as distributing leaflets in different languages and issuing press releases. New Announcement in the Public Interest is also launched on radio to raise public awareness of the serious consequences of employing illegal workers. Any person who employs a person not lawfully employable is liable to a maximum fine of $350,000 and three years' imprisonment.
(5) As at end March 2015, 9 738 non-refoulement claims were pending determination. These claimants are mostly from Pakistan (20%), India (19%), Bangladesh (13%), Vietnam (13%), Indonesia (11%), the Philippines (4%), and Sri Lanka (3%). At present, among these countries, persons with a passport issued by India, Indonesia, or the Philippines enjoy visa-free access to Hong Kong.
The ImmD will review the visa policies from time to time and introduce changes where circumstances so warrant, with a view to striking an appropriate balance between providing travel convenience, promoting economic and trade activities, and maintaining effective immigration control. The ImmD will continue to impose effective immigration control and take enforcement action. It will also process entry applications into Hong Kong for visit, employment, investment, training, residence and study in accordance with the prevailing immigration policies and procedures, and prevent undesirable persons who are likely to pose a threat to the security, prosperity and well-being of Hong Kong from entry.
(6) When the screening procedures commence, a non-refoulement claimant must return a non-refoulement claim form to set out the basis of his claim, together with any supporting document(s). In addition to the statutory period of 28 days stipulated under Part VIIC of the Immigration Ordinance, Cap. 115, the Government agreed to the DLS' request last year to provide an extra 21 days to complete the claim form through administrative means so that the USM could commence smoothly (the Government will review in due course whether to continue to provide the extra 21 days), bringing the total to 49 days (claimants in need may apply for extension). After receiving the claim form, the ImmD will arrange screening interview(s) with the claimant; arranging and completing the screening interview(s) generally require 13 weeks. After obtaining all relevant information (including the claimant submitting the claim form and supporting documents and attending the screening interview(s) arranged by the ImmD), the ImmD may determine the claim in around five weeks. In other words, the ImmD can usually determine a non-refoulement claim six months after the screening procedures have commenced.
However, the time required to screen a claim depends on whether the claimant is co-operative in providing the relevant grounds and documents. The processing time 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 obtaining time extension, etc.). However, under the present jurisprudence, even if a person is suspected to be abusing the mechanism (including lodging a claim through his legal representative before arriving Hong Kong) or fails to co-operate with the ImmD, the ImmD must still handle every step of the screening procedures in accordance with the high standards of fairness required by law, otherwise the claimant may seek to lodge a judicial review on grounds of procedural unfairness, which further delays his removal. If the delay in processing a claim is related to the claimant's legal representative (e.g. there had been cases where a duty lawyer seeks an extension on grounds that he is taking an overseas vacation), the ImmD will raise the issue with the DLS or the relevant legal professional body.
Amongst the 9 738 claimants pending determination at end March 2015, the duration of their presence in Hong Kong (since first lodging a claim) averages at 2.7 years.
(7) to (9) After commencement of the USM, non-refoulement claimants continue to receive publicly-funded legal assistance during the whole screening process in accordance with the CFI's ruling in the FB case. Such assistance has been provided through the DLS since commencement of the enhanced administrative mechanism in December 2009. At present, there are around 480 duty lawyers (including barristers and solicitors) who have received specialised training on DLS' roster to provide assistance to claimants.
When the screening procedures commence, the ImmD would refer a non-refoulement claimant to the DLS, which would assign a duty lawyer in accordance with its prevailing assignment system to handle the case. The assignment system is set up by the DLS and its Council (which comprises mostly of members appointed by the HKBA and the LSHK). Generally speaking, if a claimant does not request for a nominated lawyer, the DLS will assign a duty lawyer to the claimant according to its roster, subject to the requirement that a duty lawyer may not handle more than 25 claims at any one time. A claimant may request for a nominated lawyer, which will be decided by the Administrator of the DLS on a discretionary basis. If the claimant has a pre-existing lawyer-client relationship with the nominated lawyer, that lawyer is handling less than 25 claims at that time, and the Administrator considers that the nominated lawyer can handle the case in a timely and efficient manner, the Administrator would normally approve the claimant's request to be represented by that nominated lawyer. According to the DLS' records, the number of cases handled by lawyers who has been assigned most cases since December 2009 is tabulated at Annex.
The estimate for providing legal assistance to non-refoulement claimants for 2015-16 is $108 million, which increased by $17.5 million over last year. Drawing reference to overseas experience (from other common law jurisdictions including the United Kingdom, Canada, and Australia), the Government is considering the introduction of a standardised legal cost for handling each claim (which can be increased where the individual circumstances so justify). The Government will continue to work with the DLS and remind them to uphold the principle of effective use of public funds. We will also liaise with relevant stakeholders (including the HKBA and the LSHK) to constantly improve the operation of the publicly-funded legal assistance scheme to ensure that public resources are put into best uses.
Ends/Wednesday, April 29, 2015
Issued at HKT 19:01
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