LCQ12: Non-refoulement claims

     Following is a question by the Hon Chan Han-pan and a written reply by the Secretary for Security, Mr Lai Tung-kwok, in the Legislative Council today (June 15):


     It is learnt that the number of people who lodged torture claims/non-refoulement claims under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment immediately upon entry into Hong Kong unlawfully has been on the rise recently.  Some members of the public have relayed to me that some of the claimants are actually "bogus refugees" who have abused the mechanism for making such claims in order to stay in Hong Kong to engage in illegal activities that endanger the personal safety of members of the public and undermine the law and order, such as taking up illegal employment, stealing and trafficking drugs.  In this connection, will the Government inform this Council:

(1) of the respective average, shortest and longest time taken by the authorities to handle the aforesaid claims in each of the past three years;

(2) of the respective numbers of cases in which the aforesaid claimants were prosecuted and convicted, in each of the past three years, for allegedly having committed crimes;

(3) given that the authorities are conducting a study on setting up a closed camp for detaining claimants to reduce their incentives to come to Hong Kong, of the progress of the study;

(4) whether it will consider introducing legislative amendments to empower the authorities to repatriate claimants to their countries of origin immediately upon conviction; if it will, of the details; if not, the reasons for that; and

(5) given that the claimants are mainly from South Asian countries such as Pakistan and Bangladesh, whether the authorities will implement measures to encourage and help local ethnic minorities to apply for vacancies of police officers with a view to handling crimes involving claimants more effectively; if they will, of the details; if not, the reasons for that?


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

     However, pursuant to multiple court rulings since 2004, if a foreigner claims to face a risk of being subjected to such risks as torture, cruel, inhuman or degrading treatment or punishment (CIDTP), or persecution, etc., upon being removed to his country of origin, ImmD cannot remove him there unless his claim is determined to be unsubstantiated under procedures which meet high standards of fairness.

     The Government reiterates that the United Nations Refugee Convention has never been applied to Hong Kong; non-refoulement claimants in Hong Kong are not to be treated as "refugees".  Their illegal immigration status will not change and they may not settle in Hong Kong, regardless of the result of their claim.  They will be removed to their country of origin when their claim is rejected or when the risk they face ceases to exist.

     Since 2014, there has been a continuous and worsening influx of illegal immigrants lodging non-refoulement claims to resist removal from Hong Kong.  The public expenditure and the social and public order implications arising from illegal immigration, their abuse of our screening system and the worsening crime situation have caused considerable public concern.  Injecting further resources to enhance screening output alone is unable to contain and reverse the situation.  The Chief Executive has announced, in the 2016 Policy Address, that the Government will launch a comprehensive review on the strategy of handling non-refoulement claims from four major dimensions including (1) pre-arrival control, (2) screening procedures, (3) detention, and (4) enforcement and removal to address fragilities in our present system.

     My reply to the various parts of the Hon Chan's question is as follows:

(1) The Government commenced the unified screening mechanism (USM) in March 2014.  As at the end of May 2016, ImmD has decided on 4 211 claims.  The average time taken to arrive at a decision from the time when the screening procedure commences is 28 weeks.  The time required to screen each claim may vary depending on the complexity of the case.  According to record, the shortest time required to decide on a case was two weeks whereas the longest required 49 months.  (According to record, the claimant in that case returned his claim form four months after screening commenced.  In the 29 months that followed, the claimant failed to attend his screening interview repeatedly for various reasons, including his poor psychiatric condition (but without medical proof), request for psychiatric examination, feeling physically unwell, his legal representative was unable to attend, etc.  When the USM commenced, the claimant was given a further 28 days to provide supplementary information, but he did not provide such information until three months later.  In the 12 months that followed, the claimant again refused to attend his screening interview repeatedly.  In summary, the screening interview was completed 48 months after the screening procedure commenced, and was decided within one month thereafter.)  During the comprehensive review, we will consider how to minimise such room for abuse.

(2) According to the Police's record, since 2013, the number of non-ethnic Chinese (NEC) persons on recognisance (mostly non-refoulement claimants) arrested for criminal offences are at Annex.
     Separately, section 38AA of the Ordinance prohibits illegal immigrants or persons who are subject to removal or deportation orders from taking any employment or establishing/joining in any business.  According to ImmD's records, since 2013, the number of NEC persons on recognisance arrested for breach of section 38AA is tabulated below:

Year                    Number of persons arrested
----                    --------------------------
2013                    165
2014                    166
2015                    232
2016 (as at the end of  133
     The Government does not maintain figures relating to prosecution and conviction.

(3) The Government notes that recently, there are suggestions that we should draw reference to the experience of handling the Vietnamese boat people crisis in the 1980s and re-introduce closed camps in Hong Kong.  

     The power vested in the Government under the Ordinance to detain Vietnamese boat people is applicable only to those Vietnamese boat people who arrived Hong Kong in or before January 1998.  Since the 1980-90s, the Court has made a number of rulings in relation to the detention of illegal immigrants.  In particular, the Court of Final Appeal (CFA) ruled in 2014 in Ghulam Rbani vs the Director of Immigration [2014] HKCFA 21 that, although Article 5 of the Hong Kong Bill of Rights (HKBOR) (not subjected to arbitrary detention) does not affect ImmD¡¦s statutory power to detain illegal immigrants, such power is subject to the common law Hardial Singh principle, i.e., if ImmD cannot complete the removal procedures (including the screening procedure for non-refoulement claim) within a reasonable time, then the illegal immigrant cannot continue to be detained.  The suggestion also gives rise to other challenges from land and manpower resources perspectives.

     That being said, during the comprehensive review of the strategy for handling non-refoulement claims, we will research into proposals to empower ImmD to detain more claimants that would conform to legal and operational requirements, so as to deter them from coming to Hong Kong and delaying the removal/screening procedures.

(4) The Government commenced the USM to meet with the rulings of the Court.  In particular, in December 2012, the CFA ruled in Ubamaka Edward Wilson vs the Secretary for Security [2013] HKCFA 60 that the right not to be subjected to CIDTP under Article 3 of the HKBOR is absolute and non-derogable.  Therefore, no matter how undesirable or dangerous the conduct of an individual is, the Government may not remove him to another country where he has a real and substantial risk of being subjected to CIDTP.

     Pursuant to the Court's ruling, if an illegal immigrant claims that he has a risk of being subjected to torture, CIDTP, etc., at another country, even if he has committed a crime in Hong Kong, ImmD cannot remove him there in contravention of Article 3 of the HKBOR unless his claim is determined by ImmD to be unsubstantiated under procedures which meet high standards of fairness.

(5) Adhering to the principle of equal opportunities all along, the Police are committed to the recruitment of suitable candidates into the Police.  Candidates who meet the appointment requirements, possess the competences required of a police officer, share the same values of the Police, and endeavour to become a professional police officer to serve the community are welcome to apply to join the Police, irrespective of their races.

     From May 2011, candidates with Level two (i.e. grade E before 2007) or above in five subjects in the Hong Kong Certificate of Education Examination (including English), or equivalent, may apply for the post of Police Constable (PC), even without relevant certifications in Chinese language proficiency.  Such candidates will, however, be referred to sit for the Government Standard Examination conducted by the Civil Service Examinations Unit.  A pass in the examination is considered equivalent to meeting the Chinese language proficiency requirement.

     Candidates for the post of PC with foreign language skills, such as Hindi, Urdu, Nepali, Tagalog, French, German, Korean or Japanese, will be awarded additional scores upon passing an assessment.

     Furthermore, ethnic minorities (EM) are engaged by the Police as Police Community Liaison Assistants (PCLA) to enhance liaison with EM communities.  To date, there are 15 PCLA posts in 14 Police Districts.

Ends/Wednesday, June 15, 2016
Issued at HKT 14:28