LCQ8: Comprehensive review of strategy of handling non-refoulement claims
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Question:
It is learnt that in recent years, a large number of people of South Asian descent lodged, immediately upon illegal entry into Hong Kong, torture claims or non-refoulement claims (collectively referred to as claims) under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. While handling such claims, the Immigration Department issues recognisance forms (commonly known as "going-out passes") to such claimants for them to temporarily stay in Hong Kong. As at the end of last year, nearly 6 000 claims were pending screening. It has been reported that from time to time in recent years, there are claimants committing crimes in Hong Kong, thus undermining the law and order. In this connection, will the Government inform this Council:
(1) of the number of claimants arrested in each of the past three years on suspicion of having committed crimes and its percentage in the total number of claimants; how such percentages compare with the relevant percentages for Hong Kong permanent residents;
(2) whether the Police have, in the light of the patterns of the crimes committed by the claimants, deployed more police officers to patrol the districts concerned; if so, of the details; if not, the reasons for that; and
(3) whether the Government will consider afresh deploying existing resources, including existing or vacant correctional institutions, to set up closed camps for the claimants; if so, of the details; if not, the reasons for that?
Reply:
President,
The Government has been operating the unified screening mechanism (USM) since March 2014 to screen non-refoulement claims on all applicable grounds, i.e. a claim made by someone to be removed from Hong Kong to another country that if he is removed to that country, he will be subject to torture, or his absolute and non-derogable rights under the Hong Kong Bill of Rights (HKBOR) (section 8 of Cap 383) will be violated (including being arbitrarily deprived of his life as referred to in Article 2 and cruel, inhuman or degrading treatment or punishment as referred to in Article 3 of the HKBOR), or be persecuted, etc.
Non-refoulement claimants (including illegal immigrants and overstayers, etc.) are subject or liable to be removed from Hong Kong. Pursuant to the Immigration Ordinance (Cap 115), a claimant may be detained before his removal (including before commencement of the screening process of his claim, during screening, pending appeal and the hearing of such appeal, and during arrangement for his removal). The Immigration Ordinance also stipuates that the Immigration Department (ImmD) may require a claimant to enter into a recognisance as alternative to detention. Given previous court rulings that claimants could only be detained for a period of time that is considered reasonable under all circumstances, most claimants are currently released on recognisance in lieu of detention under the conditions imposed by ImmD.
In 2016, the Government commenced a comprehensive review of the strategy of handling non-refoulement claims. A number of measures have been implemented so far, such as preventing potential claimants from entering Hong Kong, expediting commencement of the screening process for pending claims, shortening the screening time per claim, appointing more members to the Torture Claims Appeal Board and increasing manpower of its secreatariat, expediting repatriation of rejected claimants, and stepping up enforcement actions against offences such as taking up unlawful employment.
My reply to the various parts of Dr Hon Leung’s question is as follows:
(1) According to the Police’s records, the number of non-ethnic Chinese (NEC) persons on recognisance (mostly non-refoulement claimants) arrested for suspected criminal offences (i.e. the 64 crimes categorised by the Police by the type of crimes) in the past three years is as follows:
| Crimes | 2015 | 2016 | 2017 |
| Shop theft | 277 | 463 | 428 |
| Serious drug offences | 159 | 179 | 200 |
| Miscellaneous thefts | 110 | 161 | 170 |
| Wounding and serious assault | 100 | 117 | 173 |
| Serious immigration offences | 85 | 117 | 111 |
| Forgery and coinage | 80 | 85 | 63 |
| Disorder/fighting in public place | 64 | 37 | 29 |
| Others | 238 | 347 | 368 |
| Total | 1 113 | 1 506 | 1 542 |
According to the Police’s statistics, the total number of persons arrested (including the abovementioned NECs released on recognisance) for criminal offences in 2017 was 30 366.
Separately, according to ImmD’s records, the number of NEC persons on recognisance (mostly non-refoulement claimants) arrested for taking up unlawful employment in violation of section 38AA of the Immigration Ordinance in the past three years is as follows:
| Year | Number of persons arrested |
| 2015 | 232 |
| 2016 | 302 |
| 2017 | 381 |
(2) The Police have always been concerned with the situation of crimes committed by NEC persons in Hong Kong. To handle the related issues in a focused manner, formulate relevant strategies and coordinate combating operations, the Police set up the "Crime Wing Working Group on NEC Involvement in Organised Crime and Triad Activities", chaired by the Chief Superintendent of Police of the Organised Crime and Triad Bureau (OCTB) and consisted of representatives from the Criminal Intelligence Bureau and Crime Formations of all regions.
On combatting crimes at district level, OCTB launched new strategies in 2017 to tackle the problem of NEC committing crimes with emphasis on four aspects, namely training, intelligence gathering and sharing, multi-agency cooperation and enhanced enforcement actions.
In addition, to reduce the economic incentives for non-refoulement claimants to take up unlawful employment, ImmD has continued to step up targeted inspection and intelligence gathering against venues like factories, restaurants, food processing industries, premises under renovation, recycling centres, container depots and warehouses in relevant districts and conduct raids (including joint operations with other law enforcement agencies as necessary) as appropriate.
In 2017, ImmD conducted 758 targeted operations against NEC illegal workers, representing a 27 per cent increase over 2016. A total of 478 NEC illegal workers and 270 local employers were arrested in the operations. Also, ImmD will continue to enhance publicity to remind employers that employing a person who is not lawfully employable is a serious offence liable to immediate imprisonment.
(3) Sections 32 and 37ZK of the Immigration Ordinance stipulate that the Director of Immigration may detain illegal immigrants during the removal procedures and the screening process of their non-refoulement claims respectively. ImmD has formulated a detention policy on how such powers will be exercised. For example, matters to be considered for detention include whether the person concerned has conviction(s) associated with crime(s) of serious or violent nature, whether there is doubt on his true identity and whether he has a record of absconding.
Persons detained under the Immigration Ordinance may be detained in places stipulated under the Immigration (Places of Detention) Order (Cap 115B), including the Castle Peak Bay Immigration Centre (CIC), ImmD’s detention facilities at boundary control points, as well as sites and buildings that are set apart for the purposes of prisons under the Prisons Ordinance (Cap 234) and specified in the Schedule of the Prisons Order (Cap 234B). At present, illegal immigrants detained by ImmD (including claimants) are mostly detained at CIC.
We are also considering different measures from the legal, public security and resources perspectives, which include making available more detention facilities and providing more effective operational support to detention facilities. The Government will carefully consider different views in formulating suitable proposals. The Government is considering proposals on amending the Immigration Ordinance with a view to implementing effective measures to prohibit claimants’ delaying tactics during the screening and removal procedures.
Ends/Wednesday, March 28, 2018
Issued at HKT 15:59
Issued at HKT 15:59
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