Dear Mr Cheung,
I refer to your request for access to information. In consultation with the Duty
Lawyer Service (DLS), our consolidated reply is provided as below, please.
Training Course
2.
There were 236 duty lawyers (including 143 barristers and 93 solicitors) who
attended the training course on “Representing Child Claimants under the USM: Post-
Fabio”, jointly presented by the Hong Kong Bar Association and the Clinical Legal
Education Department of the University of Hong Kong, held on 30 April 2021.
Among these attendees, 230 duty lawyers (including 141 barristers and 89 solicitors)
are still listed under the Scheme and receiving assignments from DLS to-date, or as of
15 February 2022. Starting from 3 May 2021, assignment of cases involving minors
to duty lawyers has been based on the new assignment policy, i.e. non-refoulement
claims involving minor claimants will only be assigned to duty lawyers listed under the
Scheme who attended the abovementioned training course.
Cases involving minor claimants
3.
The respective number of cases involving minor claimants referred to DLS by
the Immigration Department (ImmD) and the Torture Claims Appeal Board (TCAB)
since May 2021 is tabulated as below-
Minor cases
Minor cases
Month
referred by ImmD referred by TCAB
May-21
2
12
Jun-21
13
7
Jul-21
9
12
Aug-21
6
18
Sep-21
7
11
Oct-21
5
4
Nov-21
3
14
Dec-21
7
8
Jan-22
14
3
Feb-22
1
4
Mar-22
0
0
25 Apr-22
4
2
Total
71
95
4.
The average time needed for DLS’ assignment of non-refoulement claims to
duty lawyers between 2010 and 2021 is tabulated as below –
Average no. of days required for
Years
assignment
2010
16.48
2011
16.71
2012
4.36
2013
2.18
2014
2.03
2015
2.65
2016
3.66
2017
2.73
2018
2.93
2019
3.43
2020
3.31
2021
4.10
5.
In 2021, there were 157 cases referred to DLS by TCAB and the duty lawyers
were separately assigned for the minor claimants. The average time needed for DLS
to assign duty lawyers to the claims made by minors and their parents in 2021 was 2.06
days and that needed for DLS to assign duty lawyers to the appeals was 6.38 days.
6.
As for those cases where duty lawyers deem meritorious to file an appeal, the
relevant claimants would be represented by the same duty lawyers and hence it is not
necessary to have assignment again.
Legal representation for minor claimants
7.
As stated in our earlier reply on 5 January 2022, all cases related to non-
refoulement claims handled by DLS are referred to DLS by ImmD. DLS will provide
legal assistance to minor claimants in proceedings under the Unified Screening
Mechanism (USM) if their cases are referred by ImmD. It would however be subject
to the advice given by the assigned duty lawyers as to whether it is meritorious to file
an appeal at the appeal stage. DLS’ Non-refoulement Scheme, as an administrative
body, has to defer to the legal advice and professionalism of the duty lawyers. Apart
from the training course on USM organised by the Law Society of Hong Kong or the
Hong Kong Bar Association, duty lawyers assigned to represent minor claimants are
also required to have full attendance of the abovementioned training course held on
30 April 2021. With solid experience in dealing with claims made by adult claimants
over the years, duty lawyers assigned to represent minor claimants are undoubtedly
eligible.
8.
The abovementioned training course provided duty lawyers with a substantive
understanding of the law pertaining to minor claimants and the necessary practical skills
for handling claims involving minors. Guidance on child-specific risks or the child-
appropriate threshold for harm was discussed and presented in depth in the training
course from which duty lawyers should have gained sufficient and comprehensive
knowledge in relation to the child-specific risks or the child-appropriate threshold for
harm.
Second opinion
9
As for the option of seeking a second opinion, we have earlier replied that if
duty lawyers opine that it is not meritorious to file an appeal in the concerned cases and
to continue representing the relevant claimants for such appeal, DLS normally will not
re-assign these cases to other duty lawyers unless the relevant claimants request for a
second opinion. The same applies to minor claimants. DLS will not proactively
suggest the relevant minor claimants and their parents/guardians seeking a second
opinion, unless such request is made by the minor claimants and/or their
parents/guardians as DLS did not yet know at that stage whether the claimants would
like to file an appeal on their own or through DLS. If they file an appeal to TCAB on
their own, TCAB will refer their cases to DLS for considering whether it is meritorious
to offer legal representation for their appeals. DLS will then re-assign the concerned
cases to other duty lawyers seeking their second opinion of the merit of their appeals.
If the duty lawyers giving their second opinion are also of their professional view that
there is no ground for appeal by the relevant minor claimants, DLS will refer the cases
to the Official Solicitor’s Office (OSO) for their assistance though OSO is not one of
the agents providing publicly-funded legal assistance to non-refoulement claimants.
In 2021, there were 157 minor claimants who were given second opinion by duty
lawyers.
10.
Based on the fact that all duty lawyers offering legal representation to minors
claimants are experienced professionals who will do their own research to acquire
updated Country of Origin Information, DLS will not set out any criteria or guidance in
this regard. In general, DLS will approve all research costs claimed by duty lawyers
unless those research items were previously claimed by the same duty lawyers.
11.
All cases (including those involve minor claimants) are handled by duty
lawyers with the assistance of DLS’ Court Liaison Officers. Court Liaison Officers
will immediately report to their seniors if they find any inappropriateness regarding the
quality of legal representation of the duty lawyers. The Chief Court Liaison Officer
or the Assistant Chief Court Liaison Office will be well noted of their advice and action.
The Administrator, being a qualified lawyer of 36 years standing with experience in
private practice, will examine all the unusual cases reported to her and give due
directions and advice accordingly. In addition, all minor claimants involved are
referred and accompanied by their parents/guardians when being interviewed by duty
lawyers. If their parents/ guardians find any inappropriateness regarding the legal
representation during the process, they may voice out anytime.
12.
In 2021, 11 claimants contacted DLS after having received letters from TCAB
for fresh appeal and legal assistance providing second opinion was arranged for them.
Referral to Official Solicitor’s Office
13.
Regarding the particular case involving a minor claimant that DLS referred to
OSO for separate legal representation on 15 January 2021, upon receipt of the written
reply from OSO informing that they were not in a position to assist, DLS sent the same
to the assigned duty lawyer for consideration and advice. Since the relevant duty
lawyer did not provide any further advice, DLS provided a copy of the reply from OSO
to the claimant with the content explained via the assistance of an interpreter.
14.
On 18 February 2021, the relevant minor claimant was referred to DLS by
TCAB asking DLS to consider if legal representation would be offered. In response,
another duty lawyer was assigned to provide a second opinion to the minor claimant
and it was considered not meritorious to file an appeal. TCAB was informed that no
legal representation would be offered to the minor claimant.
15.
Despite OSO’s refusal as mentioned above, DLS has been maintaining a
policy to refer cases involving minor claimants to OSO for assistance under the said
circumstances. As at 27 April 2022, DLS issued 147 letters to OSO seeking their
assistance to minor claimants, however all of which were given a negative reply.
Others
16.
The number of appeals before TCAB with DLS representation in 2021 with
quarterly breakdown is tabulated as below-
No. of appeals
No. of claimants (adult &
Quarters in 2021
represented by DLS
minor) represented by DLS
Jan-Mar 2021
20
23
Apr-Jun 2021
15
17
Jul - Sep 2021
21
21
Oct - Dec 2021
23
25
Total
79
86
17.
The respective number of adult claimants and minor claimants who received
DLS representation on appeal to TCAB in 2021 with quarterly breakdown is tabulated
as below-
No. of adult claimants
No. of minor claimants
Quarters in 2021
represented by DLS
represented by DLS
Jan-Mar 2021
13
10
Apr-Jun 2021
7
10
Jul - Sep 2021
12
9
Oct - Dec 2021
16
9
Total
48
38
18.
The respective number of adult claimants and minor claimants who were
declined DLS representation on appeal to TCAB in 2021 with quarterly breakdown is
tabulated as below-
No. of adult claimants
No. of minor claimants
Quarters in 2021
declined by DLS
declined by DLS
Jan-Mar 2021
352
29
Apr-Jun 2021
490
28
Jul - Sep 2021
436
22
Oct - Dec 2021
434
15
Total
1712
94
19.
Among those who were declined DLS representation before TCAB above, the
respective number of adult claimants and minor claimants who requested a second
opinion in 2021 with quarterly breakdown is tabulated as below-
No. of adult claimants
No. of minor claimants
provided with second opinion
Quarters in 2021
provided with second opinion
(claimants took initiative to seek
(referred by TCAB)
second opinion)
Jan-Mar 2021
4
15
Apr-Jun 2021
2
27
Jul - Sep 2021
9
22
Oct - Dec 2021
1
9
Total
16
74
20.
Among those who requested a second opinion above, the respective number
of adult claimants and minor claimants who were eventually provided with DLS
representation in 2021 with quarterly breakdown is tabulated as below-
No. of adult claimants
No. of minor claimants
provided with second opinion provided with second opinion
Quarters in 2021
who were eventually provided who were eventually provided
with DLS representation
with DLS representation
Jan-Mar 2021
3
9
Apr-Jun 2021
2
6
Jul - Sep 2021
8
5
Oct - Dec 2021
1
4
Total
14
24
21.
As reiterated above, if the relevant claimants decide to file an appeal on their
own, their cases will be referred back to DLS by TCAB to see if DLS will provide legal
representation to the minors involved, who are unrepresented or only represented by
their parents/guardians, in their appeal proceedings before TCAB. DLS will then re-
assign the cases to other duty lawyers seeking their second opinion of the merit of their
appeals. All duty lawyers are eligible and competent enough to handle cases related
to non-refoulement claims, including cases involving minor claimants. Their
professionalism and expertise are the basis on which DLS can fully rely on.
22.
As at 27 April 2022, DLS represented 73 minor claimants in their appeals after
they were referred by TCAB and second opinion was provided to them. As at 27 April
2022, 89 minor claimants were referred to us by TCAB and were declined legal
representation after second opinion was sought. So far, none of the said minor
claimants have approached DLS or been referred again by TCAB for DLS’s further
action.
Security Bureau
