Response to statements issued by Hong Kong Bar Association and Law Society of Hong Kong

18 February 2013

In response to the statements issued by the Hong Kong Bar Association and the Law Society of Hong Kong, an Immigration Department(ImmD) spokesman commented today (February 18) that the Government respects the Court of Final Appeal's (CFA) judgment in Ubamaka v Secretary for Security (Ubamaka). Over the years, in discharging its deportation or removal duties, if a person claims that he will be subjected to torture, or cruel, inhuman or degrading treatment or punishment (inhuman treatment) upon deportation or removal, the ImmD has always considered in detail and in accordance with the law the reasons against deportation or removal raised by the person concerned and decided whether to execute the removal or deportation or to exercise discretion to temporarily withhold the deportation or removal actions. The ImmD is studying the CFA's judgment in detail, seeking legal advice from the Department of Justice, and actively exploring the various possible options to ensure the relevant duties are carried out in accordance with the CFA's judgment.

"We noted that the CFA pointed out in the relevant judgment that, if a deportee can sufficiently establish a threat of Article 3 of the Hong Kong Bill of Rights (BOR) being violated (i.e. he will face a real risk of being subjected to torture or to inhuman treatment) once sent back to the receiving country, it constitutes a ground for restraining the ImmD from proceeding with the deportation", the spokesman said.

On December 21, 2012, the CFA ruled in Ubamaka that section 11 of the Hong Kong Bill of Rights Ordinance (Cap.383) (section 11) is consistent with the Basic Law and constitutionally valid. As stipulated in section 11, for persons not having the right to enter and remain in Hong Kong, the Ordinance does not affect any immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of any such legislation. However, the CFA also pointed out that if a person can sufficiently establish a real risk of being subjected to torture or to inhuman treatment by the receiving country once sent back to that country, it constitutes a ground for restraining his or her deportation.

The CFA also clearly pointed out that a person must establish that, once expelled, he faces a real risk of being subjected to torture or to inhuman treatment and the risk shall attain "a minimum level of severity"; such claim has to pass a "very high threshold" before it is accepted as substantiated.

As to whether the ImmD will screen refugee claims, we must stress that the 1951 United Nations Convention relating to the Status of Refugees is not applicable to the HKSAR. Therefore, the HKSAR Government has a long-established policy of not granting refugee status and that it has no obligation to screen individuals seeking refugee status under the Convention. The issues will arise in an appeal which will be heard before the CFA this March. As the appeal will be heard soon, it is not appropriate for us to comment further on the relating issues at this stage.