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Procedural fairness considerations for child claimants before TCAB/NRCPO

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Dear Security Bureau,

I refer to three relevant judgements handed down by the Court of Appeal, namely Fabio Arlyn Timogan & Ors [2020] HKCA 971 (27 November 2020) (“Fabio”), Jasvir Singh & Others [2021] HKCA 53 (14 January 2021) (“Jasvir Singh & Ors”), and Alaya and Another [2021] HKCA 206 (1 March 2021) (“Alaya & Anor”). In these judgements, the Court formulated and reaffirmed an approach on the procedural fairness considerations for child claimants in TCAB hearings in observance of the high standard of fairness established by the Court of Final Appeal (See Fabio, [34]-[35], Jasvir Singh & Ors, [30], and Alaya & Anor, [24]). In respect of these Court holdings and rulings, I would appreciate if you could provide information on the following.

Question 1
Has the Torture Claims Appeal Board/Non-refoulement Claims Petitions Office ("TCAB/NRCPO") updated its Principles, Procedures and the Practice Directions (PPP), or issued any circulars/guidelines to Adjudicators to draw Adjudicators’ attention to these judgements, and specifically the mentioned paragraphs?
(a) If so, please provide a copy of such documents.
(b) If not, please advise on relevant measures taken (and/or due to be taken) by the TCAB/NRCPO in order to facilitate the Adjudicators’ understanding of and adherence to the relevant Court rulings in conducting TCAB/NRCPO proceedings.

Question 2
In light of the Court’s findings that separate and individual consideration of children’s non-refoulement claims by decision-makers is required, has/will the TCAB/NRCPO update its PPP, or issue any circulars/guidelines to Adjudicators to ensure that USM claims made by minors will obtain individual consideration from those made by their parents; (i.e., so as to “consider each claim by reference to the personal circumstances of each claimant”; see: Fabio, [34])?

(a) If so, please provide a copy of such documents.
(b) If not, please kindly specify the reasons for this approach, and how the TCAB/NRCPO would ensure compliance of its decisions with evolving procedural fairness requirements in non-refoulement case law in general.

Question 3
As provided for in Sections 4 and 16 of Schedule 1A of the Immigration Ordinance (Cap. 115; “the Ordinance”), the TCAB/NRCPO Chairperson is “responsible for making any arrangements that are practicable to ensure that members discharge their functions in an orderly and expeditious manner” alongside the power to “give directions, generally or in a particular case, on the practice and procedure of the Appeal Board in hearing and determining an appeal, so long as the direction is consistent with Part VIIC [of the Ordinance]”. As set out by Section 5A(1)(c), a Deputy Chairperson may also exercise their power to give directions in a particular case, upon delegation by the Chairperson.
In light of such, could you please provide:

a) Whether the TCAB/NRCPO Chairperson has intended to give/has given directions or make any special/different arrangements in relation to the conduct of TCAB/NRCPO proceedings involving minor claimants in general and/or in particular cases.
(i) If so, please advise on the details of such directions or arrangements (omitting any confidential information where applicable).
(ii) If not, whether on request or of its own motion the TCAB/NRCPO Chairperson would in principle be agreeable to providing such general directions on the practice and procedure of the TCAB/NRCPO in hearing and determining such appeals, with the aim to assist Adjudicators in performing their functions in an orderly and expeditious manner.

b) Whether the TCAB/NRCPO has any mechanism in place for the Chairperson and Deputy Chairpersons to play a particular role in ensuring the quality and consistency of decision-making by the TCAB/NRCPO in general.
(i) If so, please kindly elaborate on such supervisory practices.

Question 4
Considering the Court’s finding that “serious consideration” is to be given for separate representation of minor claimants in USM proceedings in paragraphs 46-49 of Fabio, has the TCAB/NRCPO formulated any relevant policy/guideline to handle appeals where minor claimants are without the representation/separation representation of a lawyer through either the Duty Lawyer Scheme (“DLS”) or the Pilot Scheme?

a) If so, please provide a copy of such policy/guideline.
b) If not, please advise on the TCAB/NRCPO’s arrangements when handling appeals in which minor claimants are unrepresented or only represented by their parents/guardians.
c) Does the TCAB/NRCPO have the power to direct the Duty Lawyer Scheme, Pilot Scheme, Official Solicitor’s Office and/or other public bodies to provide representation for minor claimants in such appeals? If so, how and under what circumstances would the Board exercise this power (i.e., according to what principles and/or criteria)?
d) Where the TCAB/NRCPO is considered to lack such a power or otherwise declines to exercise this power, how does the Board ensure that sufficient evidence and/or information is obtained such that it can fairly determine such appeals for unrepresented children in line with relevant high standards of fairness and the required approach as outline within Fabio?

I would like draw your kind attention to Jasvir Singh & Ors at paragraph 32, where the Court of Appeal held that “[i]f the court finds that it is reasonably arguable that *the Board had not considered the minor’s non‑refoulement claim in a manner consistent with the above propositions*, or that there are underlying matters in that particular case which may show that *there may be grounds specific to the minor’s claim which had not or had not been adequately advanced to the Board on his behalf because of the lack of legal representation*, the court should consider granting leave to the minor to apply for judicial review and direct that he be represented by the official solicitor to continue his judicial review application pursuant to Order 80, rule 2 of the RHC.

Alternatively, as in the case in Fabio where the court did find such underlying materials, with the consent of the Director, the court may at the same time dispose of the substantive judicial review application and remit the minor’s nonrefoulement claim to the Board for reconsideration, *directing that legal representation to be provided for him at the rehearing before the Board.* (emphasis added)”

d) From both a case management and a public cost-saving perspective, would the TCAB/NRCPO and/or the Security Bureau be agreeable to consider any measures mandating the provision of publicly funded legal assistance, through either the DLS or Pilot Scheme, to all child claimants in TCAB/NRCPO appeals based on the practical consideration that such cases may otherwise inevitably be remitted to the TCAB on procedural fairness grounds due to the lack of legal representation?
(i) If so, please kindly provide the details of such measures/proposed measures.

Question 5
In addition to the Court’s holdings of child-specific risks in Fabio at paragraphs 34-35 and 53, I would like to invite your kind consideration of the case law on joint endeavour and the Court of Appeal’s recent rulings on the Adjudicator’s duty of joint endeavour in Kulwinder Kaur v Director of Immigration & Anor [2022] HKCA 48, more specifically in paragraph 44 where the Court held “…In our view, the characterisation of an Adjudicator’s duty to investigate a claim as one of ‘joint endeavour’ is founded upon the requirement of observing high standard of fairness in determining the claim.”

In light of such, please advise whether the TCAB/NRCPO has considered the following measures in facilitating Adjudicators’ understanding of their duty of joint endeavour to fairly investigate and assess child-specific risks in appeals involving minor claimants, particularly those without the benefit of legal representation. If so, please provide details and a copy of such documents where available. If not, please specify reasons and the TCAB/NRCPO’s plan to facilitate Adjudicators’ understanding of and adherence to such duties.

a) Amend the PPP to the effect that such considerations become part of the procedural rules for TCAB/NRCPO proceedings;
b) Issue any circulars/guidelines to remind Adjudicators of their duties in relevant decision-making;
c) Mandate Adjudicators to attend relevant training organised by the legal professional bodies;
d) Facilitate Adjudicators to attend relevant training organised by the legal professional bodies;
e) Have directions issued by the TCAB/NRCPO Chairperson on such matters.

It is my understanding that a 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, was held on 30 April 2021.

f) Please advise if TCAB/NRCPO Adjudicators were invited to the said training. If so, please kindly provide the number of currently serving Adjudicators who attended it.

g) Please provide whether appeals involving minor claimants would only be assigned to Adjudicators who attended the training, by powers vested in the Chairperson or a Deputy Chairperson by Sections 5A(1)(a) and 6 of Schedule 1 of the Ordinance, or otherwise.
(i) If not, similar to Question 3b) above, whether there is any mechanism in place to ensure the quality and consistency of decision-making by the TCAB/NRCPO in such appeals.

h) Please indicate the average amount of time needed for the TCAB/NRCPO to assign Adjudicators to the appeals (or schedule hearings after receiving the Notice of Appeal, whichever more appropriate for your data collection) involving minor claimants and those not involving minor claimants, respectively, in the calendar year of 2021.

Question 6
As evidenced by the three judgements, the Court intended to enhance procedural fairness considerations for child claimants in USM proceedings. In this regard, may I invite your kind consideration of the Explanatory Note of Practice Direction 6, where it begins with “[t]he concept of ‘the welfare of the child’/‘the paramount interests of the child’ though not defined in legislation is at the heart of all litigation regarding children.” Whilst PDSL6 is intended for matrimonial and family proceedings in Court and TCAB/NRCPO proceedings are administrative by nature, please kindly provide:

a) Whether the TCAB/NRCPO has formulated any child-appropriate procedures/guidance for appeals involving child claimants.
(i) If so, please provide a copy of such documents.
(ii) If not, whether the TCAB/NRCPO would be agreeable to formulate relevant procedures/guidance, in the form of updates to the PPP, directions by the Chairperson or otherwise, to facilitate Adjudicators’ discharge of their duties, while bearing in mind the best interests of child claimants.

b) Whether the TCAB/NRCPO would be agreeable to circulate/arrange training for Adjudicators, where available, regarding the UNHCR Guidelines on International Protection for Child Asylum Claims (available at https://www.refworld.org/docid/4b2f4f6d2...), which was cited in Fabio in footnote 6, to Adjudicators in facilitating their discharge of duties.

c) Whether the TCAB/NRCPO would be agreeable to adapt Practice Direction 5 headed “Guidance on Meeting Children”, with suitable modifications, to ensure the welfare of child claimants in TCAB/NRCPO proceedings, particularly when children are to testify before the TCAB/NRCPO.

d) Whether the TCAB/NRCPO would be agreeable to circulate/arrange training for Adjudicators, where available, for the following authorities/guidance recognised widely by international refugee law:
(i) UNHCR’s Technical Guidance: Child Friendly Procedures (available at: https://www.refworld.org/docid/61b7355a4...)
(ii) UK’s Home Office Guidance on children’s asylum claims (available at: https://assets.publishing.service.gov.uk...)
(iii) Australian Administrative Appeals Tribunal’s Guidelines on Vulnerable Persons (available at: https://www.aat.gov.au/AAT/media/AAT/Fil...).

Please kindly provide your response as a Word file attachment to this email. Thank you very much for your assistance on this.

Regards,
Preston Cheung

Dear Mr Cheung,
Your application for Access to Information has been received. The
application is now under processing. We will give you a reply as soon as
possible.

Security Bureau

From: Preston Cheung <[FOI #986 email]>
To: FOI requests at Security Bureau <[Security Bureau request email]>,
Date: 15/02/2022 17:08
Subject: Freedom of Information request - Procedural fairness
considerations for child claimants before TCAB/NRCPO

--------------------------------------------------------------------------

Dear Security Bureau,

I refer to three relevant judgements handed down by the Court of Appeal,
namely Fabio Arlyn Timogan & Ors [2020] HKCA 971 (27 November 2020)
(“Fabio”), Jasvir Singh & Others [2021] HKCA 53 (14 January 2021) (“Jasvir
Singh & Ors”), and Alaya and Another [2021] HKCA 206 (1 March 2021)
(“Alaya & Anor”). In these judgements, the Court formulated and reaffirmed
an approach on the procedural fairness considerations for child claimants
in TCAB hearings in observance of the high standard of fairness
established by the Court of Final Appeal (See Fabio, [34]-[35], Jasvir
Singh & Ors, [30], and Alaya & Anor, [24]). In respect of these Court
holdings and rulings, I would appreciate if you could provide information
on the following.

Question 1

Has the Torture Claims Appeal Board/Non-refoulement Claims Petitions
Office ("TCAB/NRCPO") updated its Principles, Procedures and the Practice
Directions (PPP), or issued any circulars/guidelines to Adjudicators to
draw Adjudicators’ attention to these judgements, and specifically the
mentioned paragraphs?

(a) If so, please provide a copy of such documents.

(b) If not, please advise on relevant measures taken (and/or due to be
taken) by the TCAB/NRCPO in order to facilitate the Adjudicators’
understanding of and adherence to the relevant Court rulings in conducting
TCAB/NRCPO proceedings.

Question 2

In light of the Court’s findings that separate and individual
consideration of children’s non-refoulement claims by decision-makers is
required, has/will the TCAB/NRCPO update its PPP, or issue any
circulars/guidelines to Adjudicators to ensure that USM claims made by
minors will obtain individual consideration from those made by their
parents; (i.e., so as to “consider each claim by reference to the personal
circumstances of each claimant”; see: Fabio, [34])?

(a) If so, please provide a copy of such documents.

(b) If not, please kindly specify the reasons for this approach, and how
the TCAB/NRCPO would ensure compliance of its decisions with evolving
procedural fairness requirements in non-refoulement case law in general.

Question 3

As provided for in Sections 4 and 16 of Schedule 1A of the Immigration
Ordinance (Cap. 115; “the Ordinance”), the TCAB/NRCPO Chairperson is
“responsible for making any arrangements that are practicable to ensure
that members discharge their functions in an orderly and expeditious
manner” alongside the power to “give directions, generally or in a
particular case, on the practice and procedure of the Appeal Board in
hearing and determining an appeal, so long as the direction is consistent
with Part VIIC [of the Ordinance]”. As set out by Section 5A(1)(c), a
Deputy Chairperson may also exercise their power to give directions in a
particular case, upon delegation by the Chairperson.

In light of such, could you please provide:

(i) If so, please advise on the details of such directions or arrangements
(omitting any confidential information where applicable).

(ii) If not, whether on request or of its own motion the TCAB/NRCPO
Chairperson would in principle be agreeable to providing such general
directions on the practice and procedure of the TCAB/NRCPO in hearing and
determining such appeals, with the aim to assist Adjudicators in
performing their functions in an orderly and expeditious manner.

b) Whether the TCAB/NRCPO has any mechanism in place for the Chairperson
and Deputy Chairpersons to play a particular role in ensuring the quality
and consistency of decision-making by the TCAB/NRCPO in general.

(i) If so, please kindly elaborate on such supervisory practices.

Question 4

Considering the Court’s finding that “serious consideration” is to be
given for separate representation of minor claimants in USM proceedings in
paragraphs 46-49 of Fabio, has the TCAB/NRCPO formulated any relevant
policy/guideline to handle appeals where minor claimants are without the
representation/separation representation of a lawyer through either the
Duty Lawyer Scheme (“DLS”) or the Pilot Scheme?

a) If so, please provide a copy of such policy/guideline.

b) If not, please advise on the TCAB/NRCPO’s arrangements when handling
appeals in which minor claimants are unrepresented or only represented by
their parents/guardians.

c) Does the TCAB/NRCPO have the power to direct the Duty Lawyer Scheme,
Pilot Scheme, Official Solicitor’s Office and/or other public bodies to
provide representation for minor claimants in such appeals? If so, how and
under what circumstances would the Board exercise this power (i.e.,
according to what principles and/or criteria)?

d) Where the TCAB/NRCPO is considered to lack such a power or otherwise
declines to exercise this power, how does the Board ensure that sufficient
evidence and/or information is obtained such that it can fairly determine
such appeals for unrepresented children in line with relevant high
standards of fairness and the required approach as outline within Fabio?

I would like draw your kind attention to Jasvir Singh & Ors at paragraph
32, where the Court of Appeal held that “[i]f the court finds that it is
reasonably arguable that *the Board had not considered the minor’s
non‑refoulement claim in a manner consistent with the above propositions*,
or that there are underlying matters in that particular case which may
show that *there may be grounds specific to the minor’s claim which had
not or had not been adequately advanced to the Board on his behalf because
of the lack of legal representation*, the court should consider granting
leave to the minor to apply for judicial review and direct that he be
represented by the official solicitor to continue his judicial review
application pursuant to Order 80, rule 2 of the RHC.

Alternatively, as in the case in Fabio where the court did find such
underlying materials, with the consent of the Director, the court may at
the same time dispose of the substantive judicial review application and
remit the minor’s nonrefoulement claim to the Board for reconsideration,
*directing that legal representation to be provided for him at the
rehearing before the Board.* (emphasis added)”

d) From both a case management and a public cost-saving perspective, would
the TCAB/NRCPO and/or the Security Bureau be agreeable to consider any
measures mandating the provision of publicly funded legal assistance,
through either the DLS or Pilot Scheme, to all child claimants in
TCAB/NRCPO appeals based on the practical consideration that such cases
may otherwise inevitably be remitted to the TCAB on procedural fairness
grounds due to the lack of legal representation?

(i) If so, please kindly provide the details of such measures/proposed
measures.

Question 5

In addition to the Court’s holdings of child-specific risks in Fabio at
paragraphs 34-35 and 53, I would like to invite your kind consideration of
the case law on joint endeavour and the Court of Appeal’s recent rulings
on the Adjudicator’s duty of joint endeavour in Kulwinder Kaur v Director
of Immigration & Anor [2022] HKCA 48, more specifically in paragraph 44
where the Court held “…In our view, the characterisation of an
Adjudicator’s duty to investigate a claim as one of ‘joint endeavour’ is
founded upon the requirement of observing high standard of fairness in
determining the claim.”

In light of such, please advise whether the TCAB/NRCPO has considered the
following measures in facilitating Adjudicators’ understanding of their
duty of joint endeavour to fairly investigate and assess child-specific
risks in appeals involving minor claimants, particularly those without the
benefit of legal representation. If so, please provide details and a copy
of such documents where available. If not, please specify reasons and the
TCAB/NRCPO’s plan to facilitate Adjudicators’ understanding of and
adherence to such duties.

a) Amend the PPP to the effect that such considerations become part of the
procedural rules for TCAB/NRCPO proceedings;

b) Issue any circulars/guidelines to remind Adjudicators of their duties
in relevant decision-making;

c) Mandate Adjudicators to attend relevant training organised by the legal
professional bodies;

d) Facilitate Adjudicators to attend relevant training organised by the
legal professional bodies;

e) Have directions issued by the TCAB/NRCPO Chairperson on such matters.

It is my understanding that a 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, was held on 30 April 2021.

f) Please advise if TCAB/NRCPO Adjudicators were invited to the said
training. If so, please kindly provide the number of currently serving
Adjudicators who attended it.

(i) If not, similar to Question 3b) above, whether there is any mechanism
in place to ensure the quality and consistency of decision-making by the
TCAB/NRCPO in such appeals.

h) Please indicate the average amount of time needed for the TCAB/NRCPO to
assign Adjudicators to the appeals (or schedule hearings after receiving
the Notice of Appeal, whichever more appropriate for your data collection)
involving minor claimants and those not involving minor claimants,
respectively, in the calendar year of 2021.

Question 6

As evidenced by the three judgements, the Court intended to enhance
procedural fairness considerations for child claimants in USM proceedings.
In this regard, may I invite your kind consideration of the Explanatory
Note of Practice Direction 6, where it begins with “[t]he concept of ‘the
welfare of the child’/‘the paramount interests of the child’ though not
defined in legislation is at the heart of all litigation regarding
children.” Whilst PDSL6 is intended for matrimonial and family proceedings
in Court and TCAB/NRCPO proceedings are administrative by nature, please
kindly provide:

a) Whether the TCAB/NRCPO has formulated any child-appropriate
procedures/guidance for appeals involving child claimants.

(i) If so, please provide a copy of such documents.

(ii) If not, whether the TCAB/NRCPO would be agreeable to formulate
relevant procedures/guidance, in the form of updates to the PPP,
directions by the Chairperson or otherwise, to facilitate Adjudicators’
discharge of their duties, while bearing in mind the best interests of
child claimants.

b) Whether the TCAB/NRCPO would be agreeable to circulate/arrange training
for Adjudicators, where available, regarding the UNHCR Guidelines on
International Protection for Child Asylum Claims (available at
[1]https://www.refworld.org/docid/4b2f4f6d2...), which was cited in
Fabio in footnote 6, to Adjudicators in facilitating their discharge of
duties.

c) Whether the TCAB/NRCPO would be agreeable to adapt Practice Direction 5
headed “Guidance on Meeting Children”, with suitable modifications, to
ensure the welfare of child claimants in TCAB/NRCPO proceedings,
particularly when children are to testify before the TCAB/NRCPO.

d) Whether the TCAB/NRCPO would be agreeable to circulate/arrange training
for Adjudicators, where available, for the following authorities/guidance
recognised widely by international refugee law:

(i) UNHCR’s Technical Guidance: Child Friendly Procedures (available at:
[2]https://www.refworld.org/docid/61b7355a4...)

(ii) UK’s Home Office Guidance on children’s asylum claims (available at:
[3]https://assets.publishing.service.gov.uk...)

(iii) Australian Administrative Appeals Tribunal’s Guidelines on
Vulnerable Persons (available at:
[4]https://www.aat.gov.au/AAT/media/AAT/Fil...).

Please kindly provide your response as a Word file attachment to this
email. Thank you very much for your assistance on this.

Regards,

Preston Cheung

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Dear Mr Cheung,

Further to the interim reply of 24.2.2022. I am writing to inform you
that your application for Access to Information is still under processing
and more time is needed for obtaining relevant information. We will give
you a reply as soon as possible.

Thank you for your kind attention.

Security Bureau

From: SB-AIOREQ/SB/HKSARG
To: Preston Cheung <[FOI #986 email]>,
Date: 24/02/2022 11:24
Subject: Re: Freedom of Information request - Procedural fairness
considerations for child claimants before TCAB/NRCPO