Legal Assistance for Non-refoulement Claimants from the Official Solicitor’s Office

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Dear Preston,

Thank you for your email dated 15 February 2022. We are studying the
matters therein and a reply will be tendered as soon as possible.

Ms Katherine Yip
(for Director of Administration)

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From: Preston Cheung <[FOI #987 email]>
To: FOI requests at Offices of the Chief Secretary for
Administration and the Financial Secretary <[Offices of the Chief Secretary for Administration and the Financial Secretary request email]>
Date: 15/02/2022 17:08
Subject: Freedom of Information request - Legal Assistance for
Non-refoulement Claimants from the Official Solicitor’s Office

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Dear Chief Secretary for Administration's Office,

I refer to the Court of Appeal judgement of Fabio Arlyn Timogan & Ors
[2020] HKCA 971 (the judgement). In the judgement at paragraph 58, the
Court held that:

“[i]n the context of non-refoulement claims, in the absence of legal aid
for the claimants (so that the parent as next friend can act by
solicitor), *the Official Solicitor would have to play a greater role.*

Having said this, we would leave open the question as to whether the
Official Solicitor is obliged to act even if she is of the view that a
child’s claim has no merit. This Court is not in a position to decide that
question without hearing the Official Solicitor. (emphasis added)”

In light of the Court’s explicit findings and upon consideration of the
Official Solicitor’s statutory role (and public law duties) in
facilitating/ensuring children non-refoulement claimants’ can obtain
access to justice, I would appreciate if the Administration Wing, in
consultation with the Official Solicitor’s Office, could provide
information on the following.

Question (1)

According to the Duty Lawyer Scheme (“DLS”) in a separate Access to
Information request (available at:
[1]https://accessinfo.hk/en/request/legal_a...),
the DLS had approached the Official Solicitor’s Office (“OSO”) in an
attempt to refer to the OSO a minor claimant for separate legal
representation before the Torture Claims Appeal Board/ Non-refoulement
Claims Petitions Office ("TCAB/NRCPO"), but to no avail based on the OSO’s
reading of its statutory position, under the Official Solicitor Ordinance
(Cap.416; “the Ordinance”) in relation to Unified Screening Mechanism
(“USM”) proceedings before the Immigration Department (“ImmD”) and
TCAB/NRCPO.

As provided for in the budget heading for the Legal Aid Department
(available at [2]https://www.budget.gov.hk/2021/eng/pdf/h...), the
OSO “plays an important role in safeguarding the rights of those under a
legal disability (i.e. mentally incapacitated persons and minors)” and “is
also asked by other government departments to provide advice on matters
such as custody, adoption and representation of children and comment on
legislation which may have an impact on the provision of services by the
Official Solicitor’s Office.” I also take note that to “promote
understanding of the work of the Official Solicitor’s Office by
strengthening communication with other government departments,
non-governmental organisations and legal practitioners” is a matter
requiring special attention for the OSO in the fiscal year 2021-22.

In respect of such, could you please provide:

a) Whether the OSO and the Administration Wing have approached, or have
been approached by, the DLS, TCAB/NRCPO, ImmD, Security Bureau and/or
other public bodies to assist with formulating any policy and/or
guidelines on the provision of legal representation for child claimants in
USM proceedings before the ImmD and TCAB/NRCPO, especially considering the
Court of Appeal’s recognition in the judgement of a requirement for both
separation representation for child claimants and a consideration of
child-specific risks.

(i) If so, please provide details of relevant exchanges and a copy of such
policy/guidelines where available.

(ii) If not, please confirm whether the OSO and the Administration Wing
would consider offering advice on the provision of legal representation
within the USM part of the OSO’s work scope.

Question (2)

For an application for judicial review brought by a child claimant, the
Court has ruled in paragraph 57 of the judgement that the regime under
Order 80, rule 2 of the Rules of the High Court (Cap. 4 sub. leg. A) shall
apply.

It is my understanding that the High Court Registry is now consistently
interpreting this provision such as to prevent child claimants from filing
an application for leave to apply for judicial review (“Form 86”) unless
and until they have already appointed a next friend and/or are acting by a
solicitor at the time of filing.

In terms of seeking legal aid for child claimants to file such
applications, it is also pointed out by the Bar Association in one of its
position papers (available at
[3]https://www.legco.gov.hk/yr20-21/english...,
at paragraphs 47-50) that given the long delay in the usual processing
time for the Director of Legal Aid in determining applications for legal
aid, it is common for applicants for judicial review to have to file their
Form 86 on their own in order to meet the strict 3-month time bar set out
in the Rules of the High Court. There appears to be no procedure for the
Legal Aid Department to expedite consideration of children’s applications
for legal aid.

Given the uncertainty of obtaining legal representation (via legal aid)
before the expiry of the 3-month limitation period, and together with the
lack of means to instruct lawyers in private practice by virtue of the
lack of right to work in Hong Kong, adult claimants are most often only
able to file the Form 86 on their own.

This illustrates how the above factors combined has in practice operated
to become a major procedural barrier to child claimants’ access to justice
where without receiving assistance from the OSO or via lawyers acting on a
pro bono basis.

As set out in Section 4 of the Ordinance, the Official Solicitor may act
under the Court’s appointment, under his own discretion in the interests
of justice, or under the direction of the Chief Justice. It is also my
understanding that the OSO has adopted a “stop-gap measure” in some cases
to act as the next friend of child claimants limited to assisting them to
file the Form 86 in time, with the understanding that their parents will
seek the Court’s appointment as the next friend in substitution for the
Official Solicitor should they be eventually granted legal aid to proceed
with the judicial review proceedings on behalf of the child claimants. If
the parents are declined legal aid and unable to secure representation by
other means, the Official Solicitor will then proceed to his own merits
assessment of the cases, and withdraw such applications from the Court
where it is considered that there is no reasonable prospect of success.

Could you please provide:

a) Whether the OSO and the Administration Wing have formulated any policy
and/or guidelines on providing representation to child claimants in such
Court proceedings.

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

(ii) If not, please advise if the OSO has a plan and timeline in place to
formulate and issue such internal guidance.

b) With or without the policy and/or guidelines mentioned in a), please
provide the exhaustive list of factors that the Official Solicitor would
consider when deciding whether to offer assistance, in the form of the
said stop-gap measure or otherwise, to child claimants in relevant cases
for the purpose of preserving the interest of the minors.

(i) Of these factors, please indicate if the non-refoulement claimants’
general lack of means is recognised. If not, please kindly advise if the
Official Solicitor deems it relevant to his consideration.

(ii) Of these factors, please kindly elaborate on the specific actual or
hypothetical circumstances where the Official Solicitor would lean against
offering such assistance and provide reasoning.

c) As provided for in Section 4(1)(b) of the Ordinance, the Official
Solicitor may act in his discretion for those under a legal disability
(i.e., mentally incapacitated persons and minors), where he is satisfied
that the interests of justice so require and where there is no other
person fit and willing so to act. Please provide whether there is any
general policy and/or guidelines on the Official Solicitor’s exercise of
such discretionary power.

d) Please advise whether my understanding is correct that the Official
Solicitor would arrange a separate merits test should parent claimants be
unable to secure legal aid and representation by other means for their
children, to decide whether to continue acting on behalf of child
claimants in the mentioned proceedings.

e) Where (d) is correct, please explain how the Official Solicitor
conducts this assessment, and how it is done such as to avoid the unfair
denial of child claimants’ access to justice. Please specifically explain:

(i) The relevant threshold or qualification criteria applied to any
assessment of the merits;

(ii) How this threshold/set of criteria is in keeping with the relevant
high standards of fairness;

(iii) How the Official Solicitor would ensure child-specific risks and the
relevant lowered child-appropriate threshold for harm are properly applied
and duly considered therein.

Question (3)

In view of the discretionary power vested in the Official Solicitor by
Section 4(1)(b) of the Ordinance, including his discretion on determining
“the interests of justice”, it would be appreciated if you could provide:

a) Whether the Official Solicitor deems it required by the interests of
justice to conduct an independent merits assessment to determine whether
to act as next friend or guardian ad litem for child claimants in such
proceedings. If so, please detail reasoning.

(i) If so, please particularly provide why and how such an assessment
deemed necessary given the Official Solicitor’s “statutory duties to
safeguard the rights of those under a legal disability etc", i.e., his
role as acting as procedural safeguard.

b) As highlighted in Question (2), representation by the Official
Solicitor could be the last resort for child claimants to access judicial
remedies, and in the context of an applicant being initially refused legal
aid by the Director of Legal Aid, they may appeal to the Registrar of the
High Court, under Section 26 of the Legal Aid Ordinance (Cap. 91). Please
advise if there are any avenues to appeal against the Official Solicitor’s
initial refusal to provide representation to child claimants where
applicable.

(i) If there are such avenues, please advise how aggrieved applicants,
such as parent claimants refused by the OSO for assistance to file Form 86
on their children’s behalf, may seek an appeal/review of the Official
Solicitor’s decision.

Question (4)

As set out by Section 4(2) of the Ordinance, the Official Solicitor may
act on terms as to obtain indemnity for costs properly incurred by him and
have regard to the funds available to meet his expenses, in exercising his
discretion under subsection (1)(b) to act in a particular matter.

Notwithstanding the Official Solicitor’s inability to mobile funding to
cover the defendant’s legal costs and the defendant’s lack of means, the
Court held in Director of Social Welfare v LNT and Another [2021] HKCFI
587 at paragraph 64 that “consideration can be given as to whether an
application for legal aid can be made on [the defendant’s] behalf by the
guardian ad litem.”

Considering such Court holdings and the general lack of means of
non-refoulment claimants as explained in Question (2), please provide:

a) Whether the Official Solicitor has formulated a general policy on
whether, or under what specific circumstances, he would be agreeable to
make applications for legal aid on child claimants’ behalf.

(i) If so, please provide a copy of such documents, and the number of
legal aid applications the Official Solicitor has filed on child
claimants’ behalf, as disaggregated by calendar month between 2009 and
2021.

(ii) If not, please specify reasons.

Question (5)

As provided for in Section 5 of the Ordinance, the Official Solicitor may
appoint any legal practitioner qualified in Hong Kong to act or conduct
proceedings on his behalf in a particular case, in performing any of his
duties.

Taking note of the case statistics on the OSO website (available at:
[4]https://www.oso.gov.hk/eng/statistics/ca...) and the size of the
establishment of the OSO with reference to the Government Telephone
Directory (available at:
[5]https://tel.directory.gov.hk/0201000015_...), please kindly
provide:

a) Whether the OSO has any policy and/or guidelines in place to govern the
OSO’s briefing-our practices.

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

(ii) If not, please advise if the Official Solicitor has appointed any
external lawyers to act on his behalf in any cases since 2009. If
affirmative, please provide the number of such appointment between 2009
and 2021, as disaggregated by fiscal year/calendar year.

b) Whether the current level of public funds is a factor against the
appointment of external lawyers to act and conduct proceedings on the
Official Solicitor’s behalf.

(i) If so, please advise if the Administration Wing has any plan to
increase government budget allocated to the OSO, subject to the approval
of the Legislative Council, to either expand the OSO establishment or
scale up briefing-out practices, so as to enhance the efficiency and
quality of its services.

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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References

Visible links
1. https://accessinfo.hk/en/request/legal_a...
2. https://www.budget.gov.hk/2021/eng/pdf/h...
3. https://www.legco.gov.hk/yr20-21/english...
4. https://www.oso.gov.hk/eng/statistics/ca...
5. https://tel.directory.gov.hk/0201000015_...
6. https://accessinfo.hk/en/change_request/...
7. https://accessinfo.hk/en/help/officers

Dear Preston,

Further to our interim response dated 24 February 2022, as the request
involves quite a number of issues and concerns several parties, and that
the Government as a whole has been focusing on anti-pandemic efforts at
various fronts, we will provide a substantive reply as soon as
practicable.

Ms Katherine Yip
(for Director of Administration)

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From: Katherine WY YIP/CSO/HKSARG
To: Preston Cheung <[FOI #987 email]>
Date: 24/02/2022 14:08
Subject: Re: Freedom of Information request - Legal Assistance for
Non-refoulement Claimants from the Official Solicitor’s Office