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LCQ1: Abuse of the mechanism for non-refoulement claims

     Following is a question by the Hon Paul Tse and a reply by the Secretary for Security, Mr Lai Tung-kwok, in the Legislative Council today (October 28):
     It has been reported that the number of claims received by the Immigration Department (ImmD) in recent months from persons of Indian nationality for non-refoulement in order to resist removal to another country (non-refoulement claims) has risen substantially. It is suspected that some employment agencies in India have conspired with Hong Kong law firms to solicit persons of Indian nationality to come to Hong Kong to make such claims in order to stay in Hong Kong for unlawful employment. In addition, officials of ImmD recently said that they believed that some people were abetting the claimants to abuse the screening mechanism for non-refoulement claims, for example, by adopting an uncooperative attitude in the course of the processing of their claims by the authorities in order to extend their stay in Hong Kong. In this connection, will the Government inform this Council:

(1) of the nationalities of the people, apart from those of Indian nationality, by whom a relatively large number of claims were lodged since the implementation of the unified screening mechanism for non-refoulement claims (unified mechanism) in March 2014; given that a law firm has concurrently represented several persons of Indian nationality to make non-refoulement claims, whether the authorities have investigated if the law firm participated in soliciting persons of Indian nationality to come to Hong Kong to make such claims; if they have investigated, of the outcome; if not, the reasons for that;

(2) of the total amount of public expenditure incurred by the Government on processing non-refoulement claims since the implementation of the unified mechanism; given that there are already 10 200 cases received in the first eight months of this year pending determination, whether the Government has assessed if the $640 million-odd funding provision for this financial year is sufficient; if it is not sufficient, of the amount of shortfall; and

(3) whether it will publicise to foreign countries through the Internet and other channels the message that persons making non-refoulement claims in Hong Kong will not be issued employment visas, and that the Government will stringently combat unlawful employment and the acts of abetting others to work unlawfully in Hong Kong; whether it will consider urging, through the Ministry of Foreign Affairs of China, the Indian Government to assist in curbing intermediaries abetting its nationals to make such claims; whether it will enact legislation to provide for a time limit for lodging claims and the procedures for screening claims?



     Foreigners (Indians included) who smuggled themselves into Hong Kong, who overstayed their limit of stay allowed at entry, or who were refused entry by the Immigration Department (ImmD) upon arrival in Hong Kong will be removed from Hong Kong in accordance with the Immigration Ordinance (Cap. 115). To safeguard immigration control and for public interest, they should be removed as soon as practicable.  

     However, pursuant to the United Nations Convention Against Torture which applies to Hong Kong since 1992, as well as multiple local court rulings since 2004, if a foreigner claims that he would face risks of torture, cruel, inhuman or degrading treatment or punishment or persecution if he is removed to his country of origin, then ImmD must determine whether his claim is substantiated following procedures that meet "high standards of fairness"; meanwhile ImmD may not remove him to his country of origin.

     The Government commenced the unified screening mechanism (USM) in March 2014, with 6 699 non-refoulement claims pending screening then. By end September 2015, ImmD has determined 2 602 claims; and 1 918 claims were withdrawn.  However, during the same period, ImmD received another 8 271 claims, bringing the total number of claims pending screening to 10 450.

     It must be reiterated that the United Nations Refugee Convention has never applied to Hong Kong, and persons claiming non-refoulement here will not be treated as "refugees". They will not be allowed to settle in Hong Kong, regardless of the result of their claim. They must leave when the risk they allegedly face ceases to exist. That said, if a non-refoulement claim is substantiated on grounds of persecution, the claimant will be referred to the United Nations High Commissioner for Refugees for consideration of arrangement of resettlement in a third country.

     My reply to the various parts of Hon Paul Tse's question is as followsĄG

(1) and (3) Most of the 10 450 pending claimants originate from South or Southeast Asian countries, with Indians accounting for the most (20 per cent), followed by Vietnamese (about 20 per cent), Pakistanis (18 per cent), Bangladeshis (12 per cent), and Indonesians (10 per cent), i.e. 80 per cent of all claimants came from one of these five countries.

     According to immigration records, 46 per cent of claimants smuggled into Hong Kong, 47 per cent entered as visitors but did not leave Hong Kong before their limit of stay expired (i.e. overstaying). The remaining 7 per cent are mostly persons who lodged a non-refoulement claim on the spot after being refused permission to land upon arrival.

     Our figures indicate that 74 per cent of claimants are male, 76 per cent are between 18 and 40 years old, and 94 per cent came to Hong Kong alone without their family.

     Most claimants (around 70 per cent) lodged a claim only after having been intercepted or arrested by ImmD or the Police. Claimants who overstayed have hidden in Hong Kong for an average of 19 months before lodging a claim.

     The Government is very concerned with recent reports that some agencies in India are suspected to be arranging Indian nationals to come to Hong Kong under a fictitious "asylum visa", providing a range of "services" including transporting them from India to Hong Kong, providing legal service to ensure that they enter successfully and lodge a non-refoulement claim for them afterwards, and, while they are pending screening, arranging unlawful employment for them. Apart from serious abuses to our non-refoulement screening mechanism, such "services" exposed in the reports may also involve a number of serious criminal offences amounting to human trafficking.

     Our law enforcement agencies (LEAs), including ImmD and the Police, are conducting in depth investigation through different channels. LEAs will not acquiesce to any criminal activities; stringent enforcement action will be taken against them.

     In recent months, the Government has had multiple meetings with the Consul General (CG) of India in Hong Kong to express our profound concern against Indian agencies allegedly arranging Indian nationals to enter Hong Kong for unlawful employment. We pointed out to CG that such activities may involve a number of serious criminal offences and requested the Indian Government to render all possible assistance in combating such crimes. The Government also proposed visits to India by LEAs to follow up with local enforcement agencies over there. However, we may not divulge further details at this stage lest the relevant work would be undermined.

     Other than India, we will soon be in contact with the local Consulates of such countries as Vietnam and Pakistan to discuss how to combat their nationals smuggling into or overstaying in Hong Kong, as well as those syndicates which arrange such smuggling activities.    

     At the same time, we will seek to promulgate and clarify our immigration policy through different channels to the people in relevant countries.
     All of our efforts above are fully supported by the Office of the Commissioner of the Ministry of Foreign Affairs in Hong Kong.

     In fact, other than investigation and publicity work, we will also conduct a holistic research on different measures to address and tackle our present problem, including intercepting illegal immigrants at the source, improving the screening procedures for non-refoulement claims, expediting the screening process to minimise abuses, and reducing incentive for foreigners to take up unlawful employment in Hong Kong. We will also consider whether the relevant legislation need to be amended to plug various loopholes.

(2) As regards expenditure, in the current financial year, the estimated expenditure arising from the screening of claims amounts to $644 million, an increase of 21 per cent from last year. This includes $207 million for manpower expenditure under ImmD, the Torture Claims Appeal Board, and the Department of Justice to screen non-refoulement claims, $108 million for the provision of publicly-funded legal assistance for claimants through the Duty Lawyer Service (DLS)as required by law, and $329 million to provide humanitarian assistance to claimants whilst they are stranded in Hong Kong to prevent them from falling destitute. As the legal cost per claim processed under the publicly-funded legal assistance scheme has continued to rise, the Government has requested DLS to strengthen its financial management to ensure the proper use of public funds.

     At the same time, given the surge in the number of non-refoulement claims, I have requested the Director of Immigration to explore all possible ways within the existing legal framework to expedite the screening of claims by more efficient use of available resources. In July 2015, the Government briefed the Panel on Security of this Council on a number of administrative measures which can be promulgated without amending the present legislation, including advancing scheduling of screening interviews and providing screening bundle to claimants to save them from having to lodge a data access request. We sought an early implementation of these measures to expedite the screening of claims. It is estimated that the time required to process a claim can be reduced from 25 weeks to 15 weeks. Although some stakeholders are still maintaining a different view on these measures, we will continue to liaise with them and explain the importance of commencing these measures to expedite screening, with a view to securing the co-operation of relevant stakeholders and commencing these measures to expedite screening as soon as possible.

     The above notwithstanding, we predict that the expenditure arising from the screening of claims may continue to rise. We are reviewing whether our existing resources are adequate, and will seek additional resources under the prevailing mechanism if necessary.

     Thank you, President.

Ends/Wednesday, October 28, 2015
Issued at HKT 16:26


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