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LCQ1: Comprehensive review of strategy of handling non-refoulement claims

     Following is a question by the Hon Albert Ho and a reply by the Secretary for Security, Mr Lai Tung-kwok, in the Legislative Council today (January 27):


     The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Convention) has applied to Hong Kong since 1992. On the 13th of this month, when the Chief Executive attended a press conference after delivering this yearˇ¦s Policy Address, a reporter asked whether Hong Kong could consider withdrawing from the Convention. In response, the Chief Executive said that "if needed, we could do so". In this connection, will the Government inform this Council:

(1) whether it has assessed if it can achieve the outcome of the Convention ceasing to apply to Hong Kong; if it has, of the details; if not, the reasons for that;

(2) whether it has assessed the resultant impact on Hong Kong's international image on protection of human rights in the event that the Convention ceases to apply to Hong Kong; if it has, of the details; if not, the reasons for that; and

(3) as China is a State Party to the Convention and matters about the Convention ceasing to apply to Hong Kong should be dealt with by the Central Authorities, whether it has raised the relevant proposal with the Central Authorities; if it has, of the response of the Central Authorities; if not, the reasons for that?



     My consolidated reply to the various parts of Hon Ho's question is as follows.

     Foreigners who smuggled themselves into Hong Kong, who overstayed their limit of stay allowed, 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, Article 3(1) of the United Nations Convention Against Torture (CAT), which applies to Hong Kong since 1992, 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 Prabakar that, to a foreigner who has made a torture claim, his life and limb are in jeopardy and his fundamental human right not to be subjected to torture is involved. Accordingly, the Government must determine his torture claim independently in a way that meets the "high standards of fairness". In accordance with CFA's ruling, ImmD put in place an administrative mechanism to screen torture claims.

     In December 2008, the Court of First Instance (CFI) ruled in FB that the Government must allow claimants to have access to legal assistance, and if claimants are unable to afford so, the Government must provide legal assistance to claimants out of public funds. At the same time, CFI ruled on various aspects of the procedures for handling torture claims to make them compliant with the "high standards of fairness" required in Prabakar.

     To implement the above judgment, the Government enhanced the screening mechanism by administrative means. At the same time, the Government started working on a legislative exercise to underpin the procedural framework for screening torture claims by statutory provisions. In July 2012, the Legislative Council passed the Immigration (Amendment) Ordinance 2012; the amended Ordinance commenced in December 2012. Since then, ImmD screens torture claims on the basis of the amended Immigration Ordinance.

     However, in December 2012, CFA made another ruling in Ubamaka that, apart from torture, pursuant to Article 3 of the Hong Kong Bill of Rights (HKBOR), if a foreigner subject to removal has a real risk of being subjected to "cruel, inhuman or degrading treatment or punishment" (CIDTP) after being removed, then the Government cannot remove that person either.

     Three months later, in March 2013, CFA ruled in C that according to ImmD's established practice based on humanitarian consideration, the Government is also obliged to independently assess whether a foreigner has a risk of being subjected to persecution in his country of origin before removing him there.

     In other words, apart from torture claims, if a foreigner who faces removal claims that he may be subjected to CIDTP or persecution in his country of origin, the Government must screen his claim under procedures that meet with high standards of fairness, or else it would be a violation of the CFA judgments above.

     To implement the two CFA judgments and to prevent a claimant from raising one claim after another to resist removal pursuant to CAT,  HKBOR, the Immigration Ordinance and the two CFA judgments, the Government decided to commence the Unified Screening Mechanism (USM) in March 2014 to screen claims in one go.

     In short, the HKSAR Government implements USM as required under CAT, HKBOR, the Immigration Ordinance, and the CFA judgments above.

     Since commencement of USM, the number of claimants increased significantly by 330 per cent to 440 per month. At end 2015, the number of claimants pending screening reached almost 11 000.

     The significant increase in claims and the display of behaviours abusing screening procedures have caused public concerns over the social and public order issues brought about by the prolonged presence of a large and growing number of claimants in Hong Kong.

     Our top priority is to adopt appropriate measures, under the prevailing legal requirements, to intercept illegal immigrants at source and to expedite the screening process to remove unsubstantiated claimants to their country of origin as soon as possible. We will launch a comprehensive review of the strategy of handling non-refoulement claims in the following four dimensions:

(a) Pre-arrival control: To consider introducing pre-arrival registration to deter the arrival of economic migrants; to update the law to strengthen penalties against human smuggling and to step up enforcement against smuggling syndicates; and to review visa-free policies as required, etc;

(b) Screening procedures: To provide statutory underpinning to USM procedures; to tighten the overall timeframe for screening claims, prohibit delaying tactics and screen out manifestly unfounded claims early; to review the provision of publicly-funded legal assistance; to enhance the operation of Torture Claims Appeal Board; and to enhance ImmD's capability to collect countries of origin information, etc;

(c) Detention: to consider strengthening ImmD's legal power to detain claimants, and to identify and refurbish suitable facilities for expanding immigration detention capacity if necessary; and

(d) Removal and enforcement: to strengthen liaison with local Consulates General to expedite the removal process; to step up enforcement against criminal activities such as unlawful employment; and to enhance publicity in Hong Kong and overseas, etc.

     The review has just begun and we will brief the Panel on Security on the details soon. During the review, the Government will actively consider all feasible options and seriously assess legal issues arising from all proposals having regard to the Basic Law, HKBOR, past CFA judgments and the latest overseas jurisprudence. We will also assess whether the proposals are feasible and whether they can effectively tackle our exacerbating problems of illegal immigration and overstaying. We will comprehensively review our strategy from all angles of the wide range of complex issues involved. In principle, we will maintain an open mind to any proposal during the review. That said, having regard to the requirement laid down in law in relation to the screening of non-refoulement claims, we have no plans to assess the question of cessation of application of CAT at present.

     Thank you, President.

Ends/Wednesday, January 27, 2016
Issued at HKT 15:05


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