LCQ22: Non-refoulement claims


Hong Kong (HKSAR) -      Following is a question by the Dr Hon Elizabeth Quat and a written reply by the Secretary for Security, Mr John Lee, in the Legislative Council today (July 12):
 
Question:

     Regarding the torture claims or non-refoulement claims lodged under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (claims), will the Government inform this Council:
 
(1) of the number of new claims in the first half of this year (with a breakdown by source country of claimants) and the top four countries from which the claimants originated;
 
(2) of the current number of claims pending and, among such claims, the number of cases in which the claimants have lodged an appeal against the rejection of their claims; the manpower deployed and the expenses incurred by the Immigration Department (ImmD) for handling appeal cases in each of the past three years; the number of cases the handling of which that ImmD expects to complete in the second half of this year;
 
(3) of the new measures in place to further expedite the screening of claims, and the relevant details;
 
(4) as the Government stated earlier that it would conduct a review on the Immigration Ordinance (Cap. 115), including a study on tightening the various timeframes in the screening procedures, of the details and progress of the review; whether it will shorten the deadlines for submission of applications and documentary proofs by claimants; if so, of the details; if not, the reasons for that;

(5) given that some claimants, upon the authorities' rejection of their claims and dismissal of their appeals, have (i) applied to the United Nations High Commissioner for Refugees Sub-office in Hong Kong for screening of refugee status, or (ii) lodged judicial reviews, so as to continue staying in Hong Kong, of the respective current numbers of these two types of cases; of the average and the longest length of stay of such claimants in Hong Kong, and the public expenditure incurred in respect of such claimants, in the past three years;
 
(6) as quite a number of claimants entered Hong Kong illegally, of the (i) number, (ii) details and (iii) effectiveness, of the joint operations mounted by the Government and the Mainland authorities since January last year to combat the smuggling of illegal immigrants;
 
(7) as it has been reported that some claimants borrowed or purchased Hong Kong identity cards from their fellow countrymen and used them for applying for loans or taking up illegal employment, of the measures that the Government has put in place to combat such activities; given that the recognisance forms (commonly known as "going-out passes") that ImmD currently issues to claimants may become worn-out easily, making it difficult to verify the identities of the holders, whether the Government will consider issuing to claimants identity documents which are more durable and secured; if so, of the details; if not, the reasons for that;
 
(8) as ImmD has, since January this year, implemented an online pre-arrival registration for Indian nationals as a measure to prevent the screening mechanism for claims from being abused, of the effectiveness of the measure; whether the Government will consider extending this measure to cover other major source countries of claimants; if so, of the details; if not, the reasons for that;
 
(9) as it has been reported that some claimants' real intention for coming to Hong Kong is to seek medical treatment, of the attendance of claimants for public healthcare services, as well as the number of those claimants in need of regular follow-up consultations and the relevant details (including the types of illnesses they suffered), in each of the past three years; if such information is unavailable, whether it will collect such information;
 
(10) of (i) the respective numbers of claimants who were repatriated voluntarily and involuntarily, (ii) their average length of stay in Hong Kong before repatriation, and (iii) the manpower and public expenditure involved in repatriating such claimants, in each of the past three years; whether such expenditure has been on the rise in recent years; how the Government handles cases in which the claimants are uncooperative in the course of repatriation; and
 
(11) whether the Government will consider afresh setting up reception centres for claimants; if so, of the details; if not, the reasons for that and whether it has other measures in place to completely prevent the screening mechanism for claims from being abused?

Reply:

President,
 
     The unified screening mechanism (USM) was implemented in March 2014 to screen non-refoulement claims on all applicable grounds, including, i.e. apart from risks of torture, also risks of cruel, inhuman or degrading treatment or punishment, etc.

under the Hong Kong Bill of Rights Ordinance (Cap. 383) and risks of persecution, to decide whether the claimant may be removed.
      
     Since early 2016, the Government has been conducting a comprehensive review of the strategy of handling non-refoulement claims from various dimensions including pre-arrival control, screening procedures, detention, and enforcement and removal. 
      
     My reply to the various parts of Dr Hon Elizabeth Quat’s question is as follows:
 
(1) to (3) In the first half of 2017, ImmD received 1 128 non-refoulement claims, a decrease of 55 per cent and 41 per cent respectively as compared with the monthly averages of 2015 and 2016.  Most of the claimants originated from South-Asian and Southeast-Asian countries such as India (21 per cent), Pakistan (21 per cent), Bangladesh (13 per cent) and Vietnam (12 per cent).
 
     During the same period, ImmD determined 2 033 claims; another 871 claims were withdrawn.  As at end June 2017, there were 8 205 claims pending determination by ImmD, a decrease of 25 per cent and 18 per cent respectively since end 2015 (10 922 pending claims) and end 2016 (9 981 pending claims). 
      
     Since the commencement of USM, 8 355 claims were rejected by ImmD, out of which 7 619 lodged an appeal to the Torture Claims Appeal Board (TCAB).   As at end June 2017, 4 522 appeals were pending determination by TCAB.
      
     In the past three years, the number of TCAB members, the number of posts in TCAB's Secretariat and expenses incurred are tabulated below:
 
Financial year No. of members
(As at year end)
No.

of posts
in Secretariat
(As at year end)
Expenditure
($Million)
2014-15 19 11 13.8
2015-16 28 12 26.1
2016-17 73# 19 44.8
# Since June 30, 2017, the number of members is 90.
     
     ImmD has streamlined its internal administrative procedures and reviewed on how to optimise the use of available resources.  Subject to a commensurate increase in the capacity of providing publicly-funded legal assistance (PFLA), the number of claims determined can be increased to 5 000 or more per year.  However, the Duty Lawyer Service (DLS) can only refer 3 200 claims to its duty lawyers each year now.  In this regard, the Government will soon implement a new Pilot Scheme to refer some claims to qualified lawyers directly to provide PFLA to more claimants.  The Pilot Scheme allows us to test out a more flexible mode of operation and to explore how PFLA can be provided to claimants in the most effective manner.  The Pilot Scheme will be operated in parallel with DLS' existing scheme.  The Government will review the Pilot Scheme one year after its commencement and consider the best long-term arrangement.
 
(4) The Government is reviewing provisions under the Immigration Ordinance (Cap. 115) (the Ordinance) concerning the screening procedures for non-refoulement claims and related matters.  We will draw reference from the operational experience of USM, as well as relevant overseas laws and practices.  For screening and appeal procedures, we will examine whether it is necessary to clarify procedural steps or circumstances that are not covered by the existing provisions (e.g. claimants employing various delaying tactics, including not attending screening interviews for various reasons, repeatedly seeking time extension purportedly to submit additional supporting documents, submitting voluminous documents irrelevant to their claims, etc.); to enhance ImmD/TCAB's powers for handling various delaying tactics more effectively; to strengthen existing provisions on claimants' duties; and to set out the consequences of failing to proceed with the screening procedures according to ImmD/TCAB's directions and the law.  We will also consider tightening timeframes for various screening procedures (including submission of claim forms and filing of appeals to TCAB).  We will report to the Legislative Council on legislative proposals in due course.
 
(5) Upon commencement of USM, the Office of the United Nations High Commissioner for Refugees has ceased to accept and handle refugee claims in Hong Kong.
 
     As regards judicial review, according to Rule 3 of Order 53 under the Rules of the High Court (Cap.

4A), an application for leave to apply for judicial review must be made ex parte.  Generally speaking, ImmD or TCAB is not a party to the legal proceedings before leave is granted by the Court.  We do not have the statistics sought.
 
(6) Since early 2016, law enforcement agencies including the Police and ImmD have been working with Mainland authorities to step up efforts to combat syndicates which arrange the passage of non-ethnic Chinese illegal immigrants (NECIIs) into Hong Kong.  Since then, six joint operations have been conducted, successfully cracking down a number of cross-boundary criminal syndicates, including neutralising a forgery syndicate active in the Mainland and in Hong Kong.  A total of over 300 suspects, including over 90 core syndicate members, were arrested in the Mainland and in Hong Kong.  Meanwhile, border control and immigration authorities of relevant Mainland provinces intercepted a total of more than 40 000 foreign illegal immigrants and cracked down on 21 organised human smuggling syndicates, involving over 3 200 suspects in 260 cases of attempted smuggling into Hong Kong.  Since the commencement of relevant operations, the number of NECIIs in Hong Kong has been decreasing.
 
     In February 2017, the Mainland and Hong Kong governments held the fourth "Joint task force with Guangdong on combating smuggling of illegal immigrants across the Hong Kong-Guangdong boundary" in Hong Kong.  It was agreed that relevant provinces and regions (Guangdong, Guangxi, Yunnan, Macau and Hong Kong) would continue the dedicated joint anti-smuggling operations until mid-2019 to strengthen collaborations on investigation, intelligence exchange and law enforcement, so as to target and crack down on illicit activities by syndicates.
 
(7) A recognisance form (commonly known as "Form No. 8") issued under section 36(1) of the Ordinance is a proof that the holder is a person, being a person who is liable to be detained under the Ordinance, has been released on recognisance in lieu of detention, in such amount with such number of sureties and subject to such conditions as ImmD may reasonably require or impose.  The recognisance form is not an identity document.
 
     Non-refoulement claimants are persons who entered and/or remained in Hong Kong illegally; such immigration status of theirs would not change, regardless of the results of their claims.  They are not Hong Kong residents; and ImmD will not issue any form of identity documents to them.
      
     The Registration of Persons Ordinance (Cap. 177) stipulates that any person who without lawful authority or reasonable excuse uses, or has in his custody or possession an identity card of another person, or transfers an identity card to another person commits an offence and is liable on conviction on indictment to a fine at level 6 (HK$100,000) and to imprisonment for ten years.  ImmD will continue to step up enforcement actions and strengthen relevant intelligence gathering and exchange to combat these illegal activities.
      
(8) The pre-arrival registration (PAR) requirement for Indian nationals was implemented in January 2017.  Since then to end June 2017, the average number of Indian visitors overstaying after arrival in Hong Kong was 10 per month, a 72 per cent decrease over the fourth quarter of 2016 (monthly average of 36 Indian overstayers).  The Government will continue to closely monitor the trend of overstaying visitors and fine-tune PAR as appropriate or consider whether it is necessary to extend PAR to other countries.
 
(9) Non-refoulement claimants are not Hong Kong residents.  When they use medical services provided by public hospitals, they are required to pay for the medical expenses chargeable for "non-eligible persons".  Non-refoulement claimants with financial difficulties who could not afford such expenses can apply for a medical fee waiver with the Medical Social Services Units of public hospitals and clinics or with the Integrated Family Services Centres under the Social Welfare Department.  Medical social workers/social workers will assess the patient's financial and social situation on a discretionary basis.  In case non-refoulement claimants require urgent medical services, they may seek medical treatment from the Accident and Emergency services at public hospitals under the Hospital Authority (HA) first, and then apply for the medical fee waiver with the relevant units afterwards.  In the past three years, the number of inpatient cases and outpatient attendances in public hospitals with fee waiver for non-refoulement claimants are set out below:
 
  2014 2015 2016
Inpatient cases with fee waiver 954 1 421 1 826
Outpatient attendances with fee waiver 10 792 15 685 17 555
 
     Separately, doctors will usually determine the need for follow-up appointments based on individual patients' clinical situation.  At present, HA does not maintain statistics on individual patients' follow-up appointments and breakdown on disease types.
 
(10) Since commencement of USM and up to end May 2017, 1 753 rejected claimants have departed or are pending removal arrangements.  ImmD will remove rejected claimants as soon as practicable.  Relevant steps include applying to the consulate of relevant countries-of-origin in Hong Kong or in the Mainland for travel documents for rejected claimants not holding valid travel documents, liaising and coordinating with airlines, etc.  ImmD does not maintain statistics on their length of presence in Hong Kong before removal. 
 
     For those who resist being removed, ImmD will first explain the case in detail to them and request their co-operation during removal arrangements.  If they remain resistant to be removed, ImmD will, under the powers conferred by the Ordinance, conduct repatriation by force, including coordinating with relevant consulates in Hong Kong and with airlines.  Where necessary, ImmD will consider assigning a suitable number of officers to escort removees in flight during repatriation operations by force.
      
     In the past three years, manpower deployed and expenses incurred by ImmD on removing NEC persons (including rejected claimants) are tabulated below:
 
Financial year No.

of posts
relating to removal
Expenditure relating to removal
($Million)
2014-15 183 5.25
2015-16 183 6.34
2016-17 183 6.64
2017-18 (Estimate) 218 7.93
 
     As ImmD and TCAB expedite screening of claims and hearing of appeals, we expect that more rejected claimants will have to be removed.  ImmD has commenced a review on the removal procedures, including discussing with major source countries (e.g. Vietnam, Pakistan) on how to expedite the removal process, and created 35 posts in 2017-18, so as to ensure the timely removal of rejected claimants.
 
(11) The Director of Immigration is empowered under the Ordinance to detain certain persons (including claimants) under various circumstances.  In 2014, the Court of Final Appeal ruled in a judicial review case that ImmD's detention power is subject to the common law Hardial Singh principles.  Under those principles, ImmD cannot continue to detain a person if it cannot complete the removal procedures (including the screening procedures) within a reasonable time.
 
     We will examine the suggestion of "closed camp" and "detention centre" made by some members of the public.  As regards ImmD's detention power, we will study whether we need to amend the relevant provisions so that ImmD may detain various persons (including claimants) in light of actual circumstances.  We are also considering different measures from the legal, public security and resources perspectives, including using existing or recommissioning vacant prisons or penal institutions to detain illegal immigrants, and providing more effective operational support to detention facilities.



Published on: 2017-07-12

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