Response on torture claim screening policy

27 April 2013

In response to media enquiries, an Immigration Department (ImmD) spokesman commented today (April 27) that the allegation against ImmD adopting an "effective zero-per-cent recognition rate" in respect of torture claims was unfounded.

"The standard of fairness of any screening mechanism should be examined by looking at the actual procedures in place and support available to claimants. Whether a torture claim may be established by the claimant depends entirely on the individual circumstances of a case. Any purported correlation between the number of substantiated claims and the standard of fairness or effectiveness of the screening procedures has no rational basis. We reject any allegation that the existing mechanism is unfair to torture claimants in any way", the spokesman said.

Under the current mechanism, which was designed in accordance with previous Court rulings meeting high standards of fairness, claimants have every reasonable opportunity and all the necessary support to establish their claim. 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 for clarification 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.

Throughout the process, qualified interpretation service is provided to the claimants in their own native language as required. Medical examination by qualified medical practitioner is arranged for claimants whose physical and/or mental condition is relevant to his claim and is in dispute. Publicly-funded legal assistance from barristers and solicitors who received specialised training on handling torture claims is available to claimants for free.

Claimants aggrieved by ImmD's decisions have a right to lodge an appeal to the statutory Torture Claims Appeal Board, which comprises retired judges and magistrates. If a claimant is still aggrieved after his claim has been reviewed by the Appeal Board, he may further challenge it by way of judicial review; where in need, he can acquire legal aid in accordance with the Legal Aid Ordinance (Cap.91).

"The only reason that a torture claim is rejected is that there is no substantial ground to justify that the claimant will be in a danger of being subjected to torture. Indeed, we note that in several recent cases relating to the screening of torture claims, the Court has rejected all systemic challenges against the enhanced mechanism, upholding the torture claim decisions made thereunder", the spokesman added.

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) has been applied to Hong Kong since 1992. Article 3 of CAT provides that no State Party shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture (the non-refoulement protection). Torture claims made under Article 3 of CAT have been handled by the ImmD. Any alien in Hong Kong subject or liable to removal, including illegal immigrants and overstayers, will temporarily not be removed to the risk country if he makes a torture claim, until his claim is determined as unsubstantiated.

Since the implementation of the enhanced mechanism in December 2009 to March 2013, the ImmD has decided on 3,110 claims, five of which are substantiated. 4,348 cases remain to be decided. The ImmD estimates that 2,000 decisions can be made in 2013-14.