Removal Assessment Section Immigration Department

Screening of non-refoulement

claims under the unified screening mechanism (“USM”)

Presented by Chief Immigration Officer WONG Yuk-tung

June 2017

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Content

Who may claim non-refoulement protection in Hong Kong Making of a non-refoulement claim The USM and grounds to be considered A glance on the screening process Briefing Session Duties of a claimant The Non-refoulement Claim Form (“NCF”) Extension of time for returning the completed NCF Deemed withdrawal of a claim

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Screening interview Interviewing protocol Considerations of a claim Decision of a claim Appeal / Petition

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Who may claim non-refoulement protection in Hong Kong?

A person who is outside the country of his nationality and in Hong Kong may claim for non-refoulement protection only: -

a) the person is subject or liable to removal (including deportation) from Hong Kong and, apart from a Risk State, he does not have a right of abode or right to land in, or right to return to, any other State in which he would be entitled to non-refoulement protection; or

b) the person is a person whose surrender is requested in surrender proceedings.

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Making of a non-refoulement claim

A person must signify to an immigration officer in writing his intention to seek non-refoulement protection.

The written signification must give a general indication of the person’s reasons for claiming non-refoulement protection in Hong Kong, which may include reasons that relate to an act falling within the meaning of any applicable grounds set out in the USM.

The USM and grounds to be considered

The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“the CAT Convention”) has been extended to Hong Kong since 1992.

Article 3(1) of the CAT Convention requires State Parties not to 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.

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Convention Against Torture

On 3 December 2012, the statutory scheme (Part VIIC of Immigration Ordinance) for processing torture claims has been implemented.

Torture claims are handled and processed in accordance with the Immigration Ordinance.

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In December 2012, the Court of Final Appeal (“CFA”) ruled in Ubamaka that if there are substantial grounds for the ImmD to believe that there is a personal and substantial risk of an absolute and non-derogable right under the Hong Kong Bill of Rights (“HKBOR”) being violated on a person (being a person who is not having the right to enter and remain in Hong Kong) by the receiving country, it constitutes a ground for restraining the Government of the HKSAR from proceeding to remove / deport that person to that country.

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Absolute and non-derogable rights under HKBOR

In Ubamaka, the CFA ruled that a claimant who invokes the protection of BOR3 must meet two main requirements that –

a) the ill-treatment (physical and / or mental suffering) he would face if expelled attains what has been called “a minimum level of severity” and

b) he faces a genuine and substantial risk of being subjected to such ill-treatment. In assessing the severity, the threshold is very high, and it generally involves actual bodily injury or intense physical or mental suffering.

The CFA reiterated that the correct approach is to examine relevant facts of particular cases. The same holds true for BOR2.

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Non-refoulement protection will be afforded to claimants who are on substantial grounds of absolute and non-derogable rights under the HKBOR being violated if removed or deported to the risk state.

However, not all the rights under the HKBOR are absolute and non-derogable.

To date, no other rights, besides BOR2 and BOR3 have been ruled as absolute and non-derogable in engaging HKSAR Government’s non-refoulement obligation by a local court.

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The precise scopes of the “right to life” under BOR2 and

“torture or CIDTP”) under BOR3 are not defined under HKBORO.

The assessment of the likelihood of infringement of BOR2 and BOR3 through removal of a claimant is a highly fact-sensitive issue based on the information to be provided by the claimant in support of his non-refoulement claim. Reference will be made to relevant and updated jurisprudence.

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In respect of other rights under the HKBOR (which is

derogable and/or not absolute), the immigration reservation in section 11 of the HKBORO stipulates that, as regards persons not having the right to enter and remain in Hong Kong, the HKBORO does not affect any immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of any such legislation.

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The 1951 Convention Relating to the Status of Refugees (“the RC”)or its 1967 Protocol has never been applied to Hong Kong.

The HKSAR Government has a long-established firm policy of not granting asylum to or determining the refugee status of anyone.

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Convention relating to the Status of Refugees

In March 2013, the CFA ruled, in C & Ors v the Director of Immigration and Another that in exercising the powers to execute the removal or deportation of a person to a State of putative persecution, on the basis of the practice of the Director of Immigration of taking into account humanitarian considerations and taking a well-founded fear of persecution as a relevant humanitarian consideration, the ImmD has to assess whether that person has established a well-founded fear of persecution before the removal or deportation of the person to that State.

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In light of the CFA judgments in Ubamaka and C and the Ors, the Administration has, on 2 July 2013, announced its plan on the Panel of Security of the Legislative Council to introduce the USM.

Accordingly, under the USM commenced on 3 March 2014, non-refoulement claims would be assessed on all applicable grounds if a claimant would be subjected to risk of torture under Part VII C of the Immigration Ordinance, risk of his absolute and non-derogable rights being violated under the HKBOR (including right to life under Article 2 and torture or CIDTP under Article 3 of the HKBOR), or risk of persecution risk under the RC.

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Commencement of the USM

Since the commencement of the USM, the ImmD has informed claimants that once a non-refoulement claim is made, the claim will be screened on all applicable grounds under the USM in one go.

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• If a non-refoulement claim is made, claimant would be notified in writing and be informed to come up to ImmD for a briefing session

Making of a non-refoulement claim

•Taking fingerprints and photo •Date of the pre-scheduled screening interview informed •Referral made for legal assistance

Serving of “Notice to Persons Making a Non-refoulement Claim”(“Notice”) at briefing

session

• Informing claimant deadline of the submission of the NCF i.e. within 28 days from the issue date of the Written Request and reminding the date of the pre-scheduled screening interview

Written Request issued by the ImmD

A glance on the screening process

A glance on the screening process (Cont’d)

•The NCF can be completed either in English or Chinese • extension of time for postponing the submission of the NCF would only be given on justifiable grounds

Submission of NCF by the claimant

•Claimant can attend with the presence of his legal representative • Interpreter will be arranged if so requested

Screening interview

•Unless the claim is withdrawn, a decision must be made on the claim and to indicate substantiation or rejection (Notice of Decision “NoD”)

Notice of Decision issued by ImmD

•Claimant can file an appeal/petition within 14 days after being notified the decision of refusal

Appeal/petition by the claimant

Taking fingerprints and photograph.

Notice would be served with the date of pre-scheduled interview notified.

NCF would be provided for completion and claimant informed to return the completed NCF together with all supporting documents within 28 days from the date of the written request.

Providing information about the publicly-funded legal assistance – provided by the DLS or a Pilot Scheme to be rolled out in mid-May 2017.

The Briefing Session

The burden of proof is on the claimant to establish that he should be afforded non-refoulement protection on any applicable grounds.

Claimants are obliged to provide all information relevant to the claim and make prompt and full disclosure of all material facts in support of the claim, including any documents supporting those facts.

Duties of a claimant and Burden of Proof

The case officer is mindful of the difficulties of proof faced by the claimant, the task of ascertaining and evaluating all relevant facts is shared between the claimant and the case officer.

Claimants also need to comply with every requirement, procedure and condition prescribed by ImmD in establishing claim.

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Claimant must return the completed NCF within 28 days from the date of the written request issued by the ImmD (21 days from the date of the briefing session) together with all documents supporting his claimant that are readily available.

Claimant must provide all material facts and supporting documents in support of his non-refoulement claim in answers to the NCF. Failure to make a prompt and full disclosure of all material facts and supporting materials at the first available opportunity without reasonable excuses may damage credibility.

The NCF is not taken as completed unless it is with every part duly completed and signed .

The Non-refoulement Claim Form (NCF)

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If any documents are not readily available and may only be submitted after the return of the NCF, Claimant still has the opportunity to submit the documents provided that he has clearly indicated in writing upon the return of the completed NCF such an intention with detailed reasons given. Depending on individual circumstances, claimant will be given reasonable time to submit such documents.

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Any application to extend the 28-day time limit for returning the completed NCF must be made in writing before the expiry of the time limit with full explanations as to why the time limit cannot be met.

Each application for extension will be considered on its merits.

R v. Director of Immigration [2013] HKCFI 876: “[i]f the claim should be particularly complicated which would warrant an extension of time for the work, the DLS (legal representative) should state the justifications in a concrete manner so that the Director can understand the nature of the complexity and to allow a reasonable extension to suit the facts of the case.”

Extension of time for returning NCF

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It furthers, “General statements like the complexity of the case or that the lawyer needs time for more conferences and without more are unhelpful for the Director’s consideration on whether an extension is justified.”

After all, application will only be acceded to if the case officer is satisfied that, by reason of special circumstances, it would be unjust not to allow a further period to return the completed non-refoulement claim form.

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•If the claimant is unable to return the NCF due to serious illness, he should produce a medical certificate for verification.

•The claimant should not assume that his application for time extension (if any) will definitely be approved, as approval for such application would be subject to whether there are special circumstances in his case which would make it unjust not to allow for a further period for returning the completed NCF.

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A non-refoulement claim is treated as withdrawn on failure to return the completed NCF within the prescribed 28-day period or any further period as allowed by an immigration officer pursuant to an extension application made by the claimant.

A deemed withdrawal non-refoulement claim will be treated as withdrawn in entirety on all applicable grounds.

A claim treated as withdrawn in the circumstances may only be re-opened if there is sufficient evidence in writing to satisfy that the delay was due to circumstances beyond the person’s control.

Deemed withdrawal

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Upon notice serving during the briefing session, claimant will be given a pre-scheduled interview date which is normally fixed beyond the date of submission of the NCF.

The screening interview is a forum for clarifying issues and for testing claims which are considered to be material for the claim made.

It will be the principal opportunity for the claimant to respond to any requests for clarification of his case by the case officer and to provide further information or documents relating to the non-refoulement claim.

Screening Interview

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The claimant must provide information or answer any question put by the case officer at the interview. A failure to do so without reasonable excuse may damage his credibility.

If the claimant’s legal representative fails to turn up at the interview pre-scheduled, the case officer will normally not be able to postpone the scheduled interview to give the claimant more time to get legal advice or representation.

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The case officer may proceed with the interview in the absence of the claimant’s legal representative.

If the claimant is unable to attend a scheduled interview due to illness, he should produce a medical certificate for verification.

If the claimant fails to attend an interview or otherwise fails to proceed with the claim, the case officer may make a decision on his non-refoulement claim based on all the available information.

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A legal representative may accompany the claimant to attend the interview(s).

The role of a legal representative in the interview includes ensuring the claimant understand the interview process and have reasonable opportunities to provide all relevant information.

Legal representatives are requested to:

Give prior notice in writing of their intention to attend the interview;

Be punctual; Carry and show identification; Not answer questions on behalf of the claimant;

Interviewing Protocol

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Legal representatives are requested to (cont’d):

Ensure that the interview record is accurate and contains statements made by the claimant and ensure the case officer would ask the claimant if there is any addition, deletion or alteration before ending the interview;

Comment and make observations at the conclusion of the interview; and

Bring to the attention of the case officer any relevant lines of questioning which were curtailed or have not been pursued. (They will not, however, be expected to formulate specific questions.)

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There are certain limited circumstances in which a case officer should deny a legal representative’s access to an interview. Examples include but not limited to:

If a claimant expressly states that he/she does not wish a legal representative to be present.

If the case officer considers that a legal representative is seriously disrupting the course of interview.

Any decision to exclude a legal representative after a warning is given will be made with due regard primarily to fairness of the assessment process.

Access to the screening interview by other persons Only claimant, the assigned duty lawyer, interpreter and

the case officer (interviewer) present at screening interview

No other persons are allowed to attend the screening interview save that he has obtained the prior permission from the case officer 5 days in advance of the interview by making such an application in writing.

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Consideration of a claim

In determining whether a non-refoulement claim is substantiated, the immigration officer must, having regard to the individual circumstances of the case, take into account all relevant considerations (e.g. relevant country information, and the possibility of internal relocation).

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Decision of a claim

Unless the claim is withdrawn, it must be decided whether the claim is substantiated or rejected.

The claimant will be informed of the decision in a written

form, i.e. by a notice of decision (“NoD”).

Appeal / Petition

Upon being notified of a refusal decision, the claimant may lodge an appeal or make a petition by filing with TCAB a notice of appeal/petition within 14 days from the date of the NoD, late filing of the appeal/petition may only be allowed by TCAB if it is satisfied that by reason of special circumstances it would be unjust not to allow the late filing of the notice.

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