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Following is a written reply by the Secretary for Security, Mr Lai Tung-kwok, to a question by the Hon Dennis Kwok in the Legislative Council today (November 21):
Question:
Since December 2009, the Government has implemented an "enhanced screening mechanism", which is a non-statutory and administrative scheme (the Current Mechanism), for handling torture claims made under Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Even though the claimants have access to legal representation under the Current Mechanism, there has not been one successful claim so far. The Immigration (Amendment) Ordinance 2012 (Amendment Ordinance), which provides for a statutory process for making and determining claims, will come into operation on December 3, 2012. In this connection, will the Government inform this Council:
(a) given that there has not been a successful claim under the Current Mechanism so far, whether it has reviewed the effectiveness of the assessment criteria under the Current Mechanism in identifying persons in danger of being subjected to torture and protecting them from torture in accordance with CAT; if it has, of the outcome and details of the review; if not, the reasons for that; and
(b) whether the assessment criteria to be employed to weigh the relevant considerations as set out in the Amendment Ordinance are different from those employed under the Current Mechanism; if not, of the reasons for that; if so, what the differences are, whether it has assessed if the number of successful claims will increase upon the commencement of the Amendment Ordinance, and how it will monitor the new assessment criteria's effectiveness in identifying persons in danger of being subjected to torture and protecting them from torture in accordance with CAT?
Reply:
President,
The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention) has been applied to Hong Kong since 1992. Under Article 3 of the Convention, a person should not be expelled, returned or extradited to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. Torture claims made under the Convention in Hong Kong are handled by the Immigration Department (ImmD).
Since December 2009, the ImmD, following consultation with the legal profession and drawing reference to similar mechanisms in major common-law jurisdictions, has introduced an enhanced screening mechanism for torture claims (enhanced mechanism) to ensure that screening procedures would meet the "high standards of fairness" as required by the Court. Enhancements introduced include the provision of publicly-funded legal assistance to claimants, new petition procedures involving adjudicators with legal background determining petitions with oral hearings where fairness so requires, and enhanced training for immigration officers and adjudicators responsible for making decisions on claims and petitions respectively.
Publicly-funded legal assistance through the Duty Lawyer Service is available to each claimant upon application. At present, over 260 barristers and solicitors, who have received training on handling torture claims, are on a roster to provide legal assistance to claimants throughout the entire screening process.
Our reply to the various parts of the question is as follows:
(a) Under the current enhanced mechanism, as required by "high standards of fairness", claimants are given every reasonable opportunity to establish their claims, including submitting detailed grounds through a questionnaire with supporting documents or evidence; attending a screening interview with immigration officers to further provide information or answer questions; and making further representations to adjudicators, who are all former judges or magistrates, at petitions.
In determining whether there are substantial grounds for believing that a torture risk exists, the responsible immigration officer (and adjudicator on petitions) must consider the individual circumstances of each claim and take into account all relevant considerations. In this regard, all information provided by the claimant, including the grounds for the claim and any further submissions with supporting documentary evidence, together with other objective information, such as country of origin information, will all be considered as required by "high standards of fairness". Reference will also be drawn to relevant case law, as well as other relevant materials applicable to the individual claim, including the United Nations Committee against Torture's General Comments on the implementation of the Convention and decisions on individual cases.
Following Article 3 of the Convention, if the claimant can establish that there are substantial grounds for believing that there is a foreseeable, real and personal risk of him being subjected to torture in the torture risk country, the claim will be accepted as substantiated.
Each decision on a claim must be made individually, taking into account all relevant considerations including personal circumstances provided by the claimant. Whether a torture claim may be established by the claimant is a matter which depends entirely on the particular circumstances of a case. It is not apparent that there should be any correlation between the number of substantiated claims and the standard of fairness or effectiveness of the screening procedures.
(b) The Immigration (Amendment) Ordinance 2012, enacted in July 2012, will come into operation in December 2012. It provides for a statutory framework to underpin the current enhanced mechanism for determining torture claims, which includes the establishment of the Torture Claims Appeal Board ("the Appeal Board") to hear appeals against refusal decisions on claims.
Under the statutory mechanism, after a claimant has submitted the grounds of the claim and supporting facts in a torture claim form, the responsible immigration officer must arrange a screening interview for the claimant to further provide information and answer questions relating to the claim. Decisions on torture claims must be given to claimants in the written form and with reasons for the decisions. Claimants aggrieved by such decisions have a right to lodge an appeal to the Appeal Board, which may decide to hold an oral hearing if it considers that the appeal cannot be justly determined otherwise.
The amended Ordinance provides that, among other things, a torture claim must be accepted as substantiated if there are substantial grounds for believing that the claimant would be in danger of being subjected to torture if removed or surrendered to a torture risk country, and all relevant considerations are to be taken into account in determining a torture claim.
Immigration officers responsible for assessing torture claims and the Appeal Board will continue to consider each claim on its own merits by taking into account all relevant considerations, including those set out in (a) above, in accordance with the requirement of "high standards of fairness" as laid down by the Court and relevant provisions under the amended Ordinance.
Ends/Wednesday, November 21, 2012
Issued at HKT 15:27
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