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LCQ12: Non-refoulement claims

     Following is a question by the Hon Ip Kwok-him 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 recently received by the Immigration Department (ImmD) from illegal immigrants for non-refoulement in order to resist removal to another country (non-refoulement claims) has risen continuously. It is suspected that some overseas intermediaries, in their capacity as immigration consultants, help foreigners to come to Hong Kong and take up work unlawfully in Hong Kong by lodging non-refoulement claims. Some claimants brought with them documents for non-refoulement claims provided by Hong Kong lawyers before arriving in Hong Kong, and some even had their claims lodged by lawyers on their behalf before their flights landed, thus making ImmD unable to refuse their entry right away. The aforesaid situations have aroused the concern of members of the public as to whether the non-refoulement claim mechanism is being abused. In this connection, will the Government inform this Council:

(1) of the number of non-refoulement claims received by the authorities each month since the implementation of the unified screening mechanism for non-refoulement claims in March 2014 and, among such cases, the respective numbers of cases the non-refoulement claims of which have been (i) substantiated and (ii) rejected (with a breakdown by claimant's nationality and ground for lodging the claim);

(2) of the number of claimants, among the claimants in (1) whose claims have been rejected, who are still staying in Hong Kong and their average length of stay in Hong Kong;

(3) of the various amounts of public expenditure incurred for handling non-refoulement claims each year since December 2009 (including expenditures on legal aid, humanitarian assistance and payroll);

(4) of the respective numbers of solicitors and counsels currently listed on the Legal Aid Panels; the respective numbers, in each year since December 2009, of solicitors and counsels listed on the Panels who handled non-refoulement claims, and the respective average numbers of cases handled by them; and

(5) whether it has studied if the following measures were adopted by overseas places in the past three years for preventing abuse of their non-refoulement mechanisms: stepping up law enforcement efforts to intercept illegal immigrants, expediting the procedure for assessing claims, setting a statutory time limit for lodging claims, capping the legal aid costs, and reviewing the arrangements for granting visa-free access to visitors; if it has studied, of the results, and whether it will follow the relevant practices?



    Foreigners 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 (Note 1), 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 (CIDTP), 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.

     It must be reiterated that the United Nations Refugees 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 Ip's question is as follows:

(1) and (2) The Government commenced the unified screening mechanism (USM) in March 2014, with 6 699 non-refoulement claims pending screening then. By end of 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. Figures on the processing of torture/non-refoulement claims since December 2009 are at Annex 1.

     Amongst the 2 602 non-refoulement claims determined, 12 are substantiated (with two of them substantiated by the Torture Claims Appeal Board (TCAB) on appeal), including four Cameroonians, three Rwandans, two Jordans, two Pakistanis, and one Sri Lankan. Claims are substantiated if, having considered all relevant factors (including facts of the case, supporting evidence, credibility of the claimant, country of origin information, etc.), ImmD/TCAB considers that there are substantial grounds for believing that the claimant will face a risk of being subjected to torture, CIDTP, or persecution if he is removed to his country of origin. Amongst the rejected claimants, 1 897 have lodged an appeal to TCAB, 440 have departed or are pending removal arrangements, and 253 are remaining in Hong Kong for other reasons (e.g. imprisoned, pending prosecution, lodged a judicial review, etc.). They have been in Hong Kong for an average of seven months since their claim was rejected.

(3) Expenditure arising from the screening of claims has risen from $287 million in 2010-11 to $644 million in this financial year, with an annualised rate of growth of around 18 per cent; detail figures are at Annex 2. The expenditure comprises:

* Publicly-funded legal assistance: operated and managed by the Duty Lawyer Service (DLS), expenditure under the scheme has risen from $10 million in 2010-11 to $108 million this year (the average legal cost per case (Note 2) from $20,000 in 2010-11 to $30,000 at present);   

* Humanitarian assistance: provided by the Social Welfare Department through a non-government organisation, the expenditure has risen from $151 million in 2010-11 to $329 million this year; and

* Manpower for screening claims: the manpower expenditure under ImmD, TCAB and the Department of Justice has risen from $126 million in 2010-11 to $207 million this year.

 (4) According to figures provided by DLS, there are now about 440 lawyers who have received relevant training on the roster to provide legal assistance to claimants. Since December 2009 when the relevant scheme commenced operation, the number of duty lawyers handling torture/non-refoulement claims each year ranges from 200 to 400, i.e. each duty lawyer handled around three to seven cases per year. The most cases handled by a duty lawyer in a given year is 26.

(5) Procedures of USM follow the statutory mechanism for torture claims which was formulated in accordance with previous court rulings and should meet the high standards of fairness required by law. Since commencement of USM, the Government has been studying procedures and experiences in other jurisdictions with a view to improving our screening procedures, expediting the screening process, and strengthening our enforcement action against illegal immigrants within the existing legal framework. Details are as follows:

* Expediting the screening process: The time provided to claimants under USM is longer than that in other common law jurisdictions. For example, in Canada, Australia and New Zealand, claimants must submit a completed claim form when they lodge a claim. In Hong Kong, claimants currently have 49 days to complete a claim form (including 28 days under the statutory mechanism, and an additional 21 days given to claimants as an administrative arrangement in response to DLS' strong request when USM commenced). The Government will review in due course whether this administrative arrangement shall cease in order to expedite the screening process.

     Also, the Government has started reviewing the screening procedures in the light of operational experience immediately after commencement of USM in March 2014. 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.

* Publicly-funded legal assistance: We note that other common law jurisdictions, including the United Kingdom, Australia, New Zealand, and Canada, have in place a cap for fees for similar legal assistance (ranging from 13 to 23 hours (Note 3), or, having regard to the local legal costs over there, an equivalent of HKD$3,000 to $15,000 (Note 4)). There are also merits tests. At present, DLS does not have such a cap in place, and claimants are not subject to merits test prior to appeal. Each claimant receives 57 hours of legal assistance on average, costing around $30,000 per claim.  We have conveyed the above findings to DLS and requested its financial management strengthened to ensure the proper use of public funds. If legal expenditure under the Scheme continues to rise at current rate, the Government will consider introducing further administrative or statutory measures to control its growth as required, including the capping of legal expenditure.

* Intercepting illegal immigrants at source: 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 law enforcement agencies (LEAs) to follow up with local enforcement agencies over there. 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. LEAs will not acquiesce to any criminal activities; stringent enforcement action will be taken against them.

* Visa policy: Hong Kong has always adopted a liberal visa regime to facilitate business and tourism. However, the Government will also review our visa policy from time to time and make necessary adjustments so as to ensure that, while facilitating travel convenience for genuine visitors, the policy is not subject to abuse by those with a dubious purpose. The visa-free arrangement of specific countries is also subject to review and adjustments from time to time having regard to the prevailing circumstances in order to strike a balance between facilitating genuine visitors and maintaining effective immigration control.

Note 1: Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 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."

Note 2: Including fees paid to the duty lawyer and manpower expenditure for court liaison officers who provide legal executive support to duty lawyers, but excluding the DLS' operating cost, management staff, and interpretation and translation costs.

Note 3: Excluding the actual hours for attending screening interviews.

Note 4: Already including the cost for the lawyer to hire legal executive support as needed.

Ends/Wednesday, October 28, 2015
Issued at HKT 20:05


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