On 19 February 2013, legislator Dennis Kwok wrote to the Security Bureau for clarifications on the administration’s position after the Court of Final Appeal judgment “Ubamaka“.
He wrote, “(This judgment) held that the right guaranteed under Article 3 of the Hong Kong Bill of Rights, i.e. the right to freedom from torture or cruel, inhuman or degrading treatment or punishment, is non-derogable and absolute even for those persons having no right to enter and remain in Hong Kong. As a result, torture claimants facing refoulment can now rely not only on the Convention Against Torture, but also on the Hong Kong Bill of Rights Ordinance as long as he can establish “two main requirements: (i) that the ill-treatment which he would face if expelled attains what has been called ‘a minimum level of severity’ and (ii) that he faces a genuine and substantial risk of being subjected to such mistreatment.” Then Dennis asked:
a) Whether the Administration will take immediate steps to cease, at least temporarily, repatriating persons who have previously made, or who have expressed an intention to make, a torture claim;
b) Whether the Administration will consider further amending the Immigration Ordinance to ensure that the current statutory process for making and determining claims is in full compliance with the judgment in Ubamaka;
c) If not by amending the Immigration Ordinance, whether the Administration will issue new guidelines for determining torture claims;
d) How can the Administration ensure that the current statutory process for making and determining claims is in full compliance with the judgment in Ubamaka?
The Secretary for Security replied, “the Administration must very carefully and thoroughly consider the judgment and its implications in detail and seek legal advice from the Department of Justice before deciding on the most appropriate way forward. Rest assured that the Administration is actively exploring various possible options to ensure that the Immigration Department will continue to discharge its duties effectively, efficiently and in accordance with the law”.
In other words, the government is still unsure how to process CIDTP claims. For the time being, let’s hope that front-line Immigration officers in Skyline Tower have been properly instructed on receiving and filing CIDTP claims – without infringing upon claimants’ rights – as Vision First has witnessed and taken action against lately. It shouldn’t be necessary to threaten High Court action for such simple procedures three months after the Ubamaka judgment. Any abuses should be reported immediately for corrective action.
You may read Dennis Kwok’s letter here
You may read the reply he received on 26 March 2013 from the Security Bureau here
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