Legal Assistance Scheme for Non-refoulement Claimants in relation to the Court of Appeal’s Fabio judgement
Dear Security Bureau,
I refer to the Court of Appeal judgement of Fabio Arlyn Timogan & Ors [2020] HKCA 971 (the judgement). In paragraph 54, the Court said it would “send a copy of this judgment to the administrator of the Duty Lawyer Scheme to remind those acting for children claimants to give careful consideration to any potential child-specific risk when they present non-refoulement claims on their behalf.”
In respect of this reminder from the Court, alongside the discussion and establishment of new requirements for legal representation of children in asylum proceedings in the judgement, I would appreciate if you could provide information in relation to the Duty Lawyer Service (DLS)’s Legal Assistance Scheme for Non-refoulement Claimants (the Scheme) on the following:
Question (1): Has the Duty Lawyer Scheme updated its Assignment Letters and/or issued any circulars/communications in drawing the attention of lawyers listed under the Scheme (Duty Lawyers) to the Fabio judgement.
(a) If so, please provide a copy of such documents.
(b) If not, please advise on the DLS’ plan on when and how it deliver the Court reminder to Duty Lawyers.
I refer to paragraphs 48, 49 and 53 of the judgement while being mindful of the Scheme’s case assignment system and the merits test to the effect that “whether or not a claimant will be provided with [publicly-funded legal assistance (PFLA)] at the appeal stage is subject to merits assessment by the lawyer concerned.” (Footnote 2, LC Paper No. CB(2)581/18-19(01), available at https://www.legco.gov.hk/yr16-17/english...)
Question (2): In light of the Court’s affirmation of legal representation for children in TCAB hearings as a requirement under the high standard of fairness as established by the Court of Final Appeal, has the DLS considered the following measures? If so, please provide details and a copy of relevant documents where available. If not, please specify reasons and the DLS’ plan to facilitate Duty Lawyers’ adherence to the new procedural fairness requirement.
(a) Amend the DLS’ policy/service scope to ensure children claimants’ legal representation in USM proceedings;
(b) Issue guidelines to Duty Lawyers regarding their conduct of merits assessment in cases involving children claimants;
(c) Facilitate Duty Layers’ participation in relevant training hosted by the Law Society or the Bar Association.
Question (3): Has the DLS formulated a policy/guideline to handle cases involving children claimants where the assigned lawyers decided against providing PFLA at the appeal stage?
(a) In particular, would the DLS re-assign the concerned cases to other lawyers for fresh considerations for the provision of PFLA? If not, please specify reasons and the DLS’ plan to facilitate/ensure satisfaction of the mention procedural fairness requirement.
Question (4): Has the DLS entered into communication with the Torture Claims Appeal Board/ Non-refoulement Claims Petitions Office ("TCAB/NRCPO") concerning arrangements in cases where children claimants are unrepresented, or only represented by their parents/ guardians (thus failing to meet the high standard of fairness as considered by the Court in paragraph 48 of the judgement)?
Question (5): In respect of the specific and careful consideration of child-specific risk of harm that the Court requires of lawyers acting for children claimants in paragraphs 53 and 54 of the judgement, alongside the Court’s consideration of the formulation of child-specific risks in paragraphs 34-36 of the judgement, has the DLS considered the following measures? If so, please provide details and a copy of relevant documents where available. If not, please specify reasons and the DLS’ plan to facilitate Duty Lawyers’ adherence to this requirement.
(a) Amend the Assignment Letters in all cases (both first-instance and on appeal) involving children claimants to highlight the mentioned requirement;
(b) Issue guidelines to Duty Lawyers regarding their conduct of merits assessment for cases involving children claimants;
(b) Issue guidelines to Duty Lawyers regarding their consideration and presentation of child-specific risks in children claimants’ Non-refoulement Claim Forms, as discussed in paragraph 44 of the judgement;
(c) Facilitate Duty Layers’ participation in relevant training hosted by the Law Society or the Bar Association.
Regards,
Preston
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 #889 email]>
To: FOI requests at Security Bureau <[Security Bureau request email]>,
Date: 18/11/2021 17:28
Subject: [Possible SPAM] Freedom of Information request - Legal
Assistance Scheme for Non-refoulement Claimants in relation to the Court
of Appeal’s Fabio judgement
--------------------------------------------------------------------------
Dear Security Bureau,
I refer to the Court of Appeal judgement of Fabio Arlyn Timogan & Ors
[2020] HKCA 971 (the judgement). In paragraph 54, the Court said it would
“send a copy of this judgment to the administrator of the Duty Lawyer
Scheme to remind those acting for children claimants to give careful
consideration to any potential child-specific risk when they present
non-refoulement claims on their behalf.”
In respect of this reminder from the Court, alongside the discussion and
establishment of new requirements for legal representation of children in
asylum proceedings in the judgement, I would appreciate if you could
provide information in relation to the Duty Lawyer Service (DLS)’s Legal
Assistance Scheme for Non-refoulement Claimants (the Scheme) on the
following:
Question (1): Has the Duty Lawyer Scheme updated its Assignment Letters
and/or issued any circulars/communications in drawing the attention of
lawyers listed under the Scheme (Duty Lawyers) to the Fabio judgement.
(a) If so, please provide a copy of such documents.
(b) If not, please advise on the DLS’ plan on when and how it deliver the
Court reminder to Duty Lawyers.
I refer to paragraphs 48, 49 and 53 of the judgement while being mindful
of the Scheme’s case assignment system and the merits test to the effect
that “whether or not a claimant will be provided with [publicly-funded
legal assistance (PFLA)] at the appeal stage is subject to merits
assessment by the lawyer concerned.” (Footnote 2, LC Paper No.
CB(2)581/18-19(01), available at
[1]https://www.legco.gov.hk/yr16-17/english...)
Question (2): In light of the Court’s affirmation of legal representation
for children in TCAB hearings as a requirement under the high standard of
fairness as established by the Court of Final Appeal, has the DLS
considered the following measures? If so, please provide details and a
copy of relevant documents where available. If not, please specify reasons
and the DLS’ plan to facilitate Duty Lawyers’ adherence to the new
procedural fairness requirement.
(a) Amend the DLS’ policy/service scope to ensure children claimants’
legal representation in USM proceedings;
(b) Issue guidelines to Duty Lawyers regarding their conduct of merits
assessment in cases involving children claimants;
(c) Facilitate Duty Layers’ participation in relevant training hosted by
the Law Society or the Bar Association.
Question (3): Has the DLS formulated a policy/guideline to handle cases
involving children claimants where the assigned lawyers decided against
providing PFLA at the appeal stage?
(a) In particular, would the DLS re-assign the concerned cases to other
lawyers for fresh considerations for the provision of PFLA? If not, please
specify reasons and the DLS’ plan to facilitate/ensure satisfaction of the
mention procedural fairness requirement.
Question (4): Has the DLS entered into communication with the Torture
Claims Appeal Board/ Non-refoulement Claims Petitions Office
("TCAB/NRCPO") concerning arrangements in cases where children claimants
are unrepresented, or only represented by their parents/ guardians (thus
failing to meet the high standard of fairness as considered by the Court
in paragraph 48 of the judgement)?
Question (5): In respect of the specific and careful consideration of
child-specific risk of harm that the Court requires of lawyers acting for
children claimants in paragraphs 53 and 54 of the judgement, alongside the
Court’s consideration of the formulation of child-specific risks in
paragraphs 34-36 of the judgement, has the DLS considered the following
measures? If so, please provide details and a copy of relevant documents
where available. If not, please specify reasons and the DLS’ plan to
facilitate Duty Lawyers’ adherence to this requirement.
(a) Amend the Assignment Letters in all cases (both first-instance and on
appeal) involving children claimants to highlight the mentioned
requirement;
(b) Issue guidelines to Duty Lawyers regarding their conduct of merits
assessment for cases involving children claimants;
(b) Issue guidelines to Duty Lawyers regarding their consideration and
presentation of child-specific risks in children claimants’
Non-refoulement Claim Forms, as discussed in paragraph 44 of the
judgement;
(c) Facilitate Duty Layers’ participation in relevant training hosted by
the Law Society or the Bar Association.
Regards,
Preston
-------------------------------------------------------------------
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Dear Mr Cheung,
Further to the interim reply of 22 November 2021, I am writing to inform
you that your application for Access to Information is still under
processing, as more time is required to gather and consolidate the
information/ statistics requested in your application. 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 #889 email]>,
Date: 22/11/2021 16:55
Subject: Re: [Possible SPAM] Freedom of Information request - Legal
Assistance Scheme for Non-refoulement Claimants in relation to the Court
of Appeal’s Fabio judgement
--------------------------------------------------------------------------
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 #889 email]>
To: FOI requests at Security Bureau <[Security Bureau request email]>,
Date: 18/11/2021 17:28
Subject: [Possible SPAM] Freedom of Information request - Legal
Assistance Scheme for Non-refoulement Claimants in relation to the Court
of Appeal’s Fabio judgement
--------------------------------------------------------------------------
Dear Security Bureau,
I refer to the Court of Appeal judgement of Fabio Arlyn Timogan & Ors
[2020] HKCA 971 (the judgement). In paragraph 54, the Court said it would
“send a copy of this judgment to the administrator of the Duty Lawyer
Scheme to remind those acting for children claimants to give careful
consideration to any potential child-specific risk when they present
non-refoulement claims on their behalf.”
In respect of this reminder from the Court, alongside the discussion and
establishment of new requirements for legal representation of children in
asylum proceedings in the judgement, I would appreciate if you could
provide information in relation to the Duty Lawyer Service (DLS)’s Legal
Assistance Scheme for Non-refoulement Claimants (the Scheme) on the
following:
Question (1): Has the Duty Lawyer Scheme updated its Assignment Letters
and/or issued any circulars/communications in drawing the attention of
lawyers listed under the Scheme (Duty Lawyers) to the Fabio judgement.
(a) If so, please provide a copy of such documents.
(b) If not, please advise on the DLS’ plan on when and how it deliver the
Court reminder to Duty Lawyers.
I refer to paragraphs 48, 49 and 53 of the judgement while being mindful
of the Scheme’s case assignment system and the merits test to the effect
that “whether or not a claimant will be provided with [publicly-funded
legal assistance (PFLA)] at the appeal stage is subject to merits
assessment by the lawyer concerned.” (Footnote 2, LC Paper No.
CB(2)581/18-19(01), available at
[1]https://www.legco.gov.hk/yr16-17/english...)
Question (2): In light of the Court’s affirmation of legal representation
for children in TCAB hearings as a requirement under the high standard of
fairness as established by the Court of Final Appeal, has the DLS
considered the following measures? If so, please provide details and a
copy of relevant documents where available. If not, please specify reasons
and the DLS’ plan to facilitate Duty Lawyers’ adherence to the new
procedural fairness requirement.
(a) Amend the DLS’ policy/service scope to ensure children claimants’
legal representation in USM proceedings;
(b) Issue guidelines to Duty Lawyers regarding their conduct of merits
assessment in cases involving children claimants;
(c) Facilitate Duty Layers’ participation in relevant training hosted by
the Law Society or the Bar Association.
Question (3): Has the DLS formulated a policy/guideline to handle cases
involving children claimants where the assigned lawyers decided against
providing PFLA at the appeal stage?
(a) In particular, would the DLS re-assign the concerned cases to other
lawyers for fresh considerations for the provision of PFLA? If not, please
specify reasons and the DLS’ plan to facilitate/ensure satisfaction of the
mention procedural fairness requirement.
Question (4): Has the DLS entered into communication with the Torture
Claims Appeal Board/ Non-refoulement Claims Petitions Office
("TCAB/NRCPO") concerning arrangements in cases where children claimants
are unrepresented, or only represented by their parents/ guardians (thus
failing to meet the high standard of fairness as considered by the Court
in paragraph 48 of the judgement)?
Question (5): In respect of the specific and careful consideration of
child-specific risk of harm that the Court requires of lawyers acting for
children claimants in paragraphs 53 and 54 of the judgement, alongside the
Court’s consideration of the formulation of child-specific risks in
paragraphs 34-36 of the judgement, has the DLS considered the following
measures? If so, please provide details and a copy of relevant documents
where available. If not, please specify reasons and the DLS’ plan to
facilitate Duty Lawyers’ adherence to this requirement.
(a) Amend the Assignment Letters in all cases (both first-instance and on
appeal) involving children claimants to highlight the mentioned
requirement;
(b) Issue guidelines to Duty Lawyers regarding their conduct of merits
assessment for cases involving children claimants;
(b) Issue guidelines to Duty Lawyers regarding their consideration and
presentation of child-specific risks in children claimants’
Non-refoulement Claim Forms, as discussed in paragraph 44 of the
judgement;
(c) Facilitate Duty Layers’ participation in relevant training hosted by
the Law Society or the Bar Association.
Regards,
Preston
-------------------------------------------------------------------
This is a request under the Code of Access to Information facilitated via
the accessinfo.hk website.
Please use this email address for all replies to this request:
[FOI #889 email]
Is [Security Bureau request email] the wrong address for Freedom of Information requests
to Security Bureau? If so, please contact us using this form:
[2]https://accessinfo.hk/en/change_request/...
Disclaimer: This message and any reply that you make will be published on
the internet. Our privacy and copyright policies:
[3]https://accessinfo.hk/en/help/officers
If you find this service useful as an FOI officer, please ask your web
manager to link to us from your organisation's FOI page.
-------------------------------------------------------------------
References
Visible links
1. https://www.legco.gov.hk/yr16-17/english...
2. https://accessinfo.hk/en/change_request/...
3. https://accessinfo.hk/en/help/officers
Dear Mr Cheung,
I refer to your request for Access to Information on 18 November 2021. In
consultation with the Duty Lawyers Service (“DLS”), our reply is provided
as below, please.
The issue of legal representation for the minor in the proceedings before
the Torture Claim Appeal Board (“TCAB”) has been considered by the Court
of Appeal (“CA”) in a number of cases in the past including Fabio and
others [2020] HKCA 971 (27 November 2020), Jasvir Singh & Others [2021]
HKCA 53 (14 January 2021), and Alaya and another [2021] HKCA 206 (1 March
2021), among others.
With reference to the judgments of relevant cases, the crux of the matter
is whether TCAB has achieved high standard of fairness in dealing with the
minor’s claim consistently with the propositions laid down in Fabio Arlyn
Timogan& Ors. The lack of legal representation before TCAB does not, per
se, amount to a failure to meet the high standard of fairness. To this
end, when the minor was referred to agents of publicly-funded legal
assistance (“PFLA”) for provision of PFLA in making his non-refoulement
claim, the minor’s claim would be treated separately from the parent’s
claim, and separate legal representation would be provided to the minor in
the presentation of the case to the Director of Immigration and TCAB (if
the lawyer considered that there are merits to appeal).
(1)
As soon as the Court of Appeal judgment of Fabio Arlyn Timogan & Ors (CACV
32/2020) [2020] HKCA 971 (“the judgment”) was issued on 27 November 2020,
a circular was issued to all relevant Court Liaison Officers on 2 December
2020 (please see the attached) summarising the gist of the judgment. As
clearly stated in paragraph 9 of the circular, the staff of DLS was
reminded to draw the attention of the duty lawyers to the said judgment
when dealing with claims where minors are involved. Since then, DLS will
send the judgment to duty lawyers who have been assigned cases involving
minors.
In addition, a circular was issued to all duty lawyers on 22 April 2021
(please see the attached) notifying them of the judgment and that a
training course on “Representing Child Claimants under the Unified
Screening Mechanism (“USM”): Post-Fabio” in response to the judgment would
be conducted on 30 April 2021 and encouraged them to attend.
(2) & 5(b)-(c)
All cases related to non-refoulement claims handled by DLS, are referred
to DLS by the Immigration Department (“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 of the assigned duty lawyers as to whether it is
meritorious to provide legal representation to the minors concerned 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.
When the duty lawyers advise that there is no ground to file an appeal
for the minor claimants concerned, DLS will then refer the cases to the
Official Solicitor’s Office for their assistance.
In the past, cases involving minor claimants would only be assigned to
those duty lawyers who have experience in dealing with cases related to
non-refoulement claims and have knowledge of the nationality of the minor
claimants whom they represented. Subsequent to the abovementioned
training course held on 30 April 2021, cases of minor claimants referred
by ImmD and/or those referred back to DLS by TCAB are basically
represented by the duty lawyers who have attended the said training
course.
As mentioned in (1), 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 for all duty lawyers. Duty
lawyers who have attended the said training course as well as the previous
training course on USM organised by the Law Society of Hong Kong or the
Hong Kong Bar Association have already equipped themselves with the legal
knowledge in relevant proceedings and updated information on how to
protect the rights of minor claimants.
(3)-(4)
Upon receipt of the Notice of Decision from ImmD, if duty lawyers are of
their professional view 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 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 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 above and the merit of their appeals. When 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, as mentioned above, DLS
will refer the cases to the Official Solicitor’s Office for their
assistance.
Separately, after the judgment was handed down, DLS approached the
Official Solicitor’s Office (which has a statutory duty to protect the
interests of minors in the Courts) on 15 January 2021 drawing their
attention to paragraph 58 of the judgment and referring to them one of our
minor claimants for separate legal representation. However, DLS was
advised by the Official Solicitor’s Office on 20 January 2021 that
according to Section 4 of Official Solicitor Ordinance (Cap. 416), one of
the duties of the Official Solicitor is to act as guardian ad litem or
next friend to any person under a disability of age or mental capacity, in
proceedings before any Court. In addition, Section 4(3) defines the Court
as the High Court or the District Court. Therefore, while they have no
qualm on the rulings and holdings of the Court of Appeal, they are of the
view that they are not in a statutory position to act as the advisor or
legal representative to any minor claimants in proceedings before TCAB
which is not defined as “the Court” in the abovementioned Ordinance.
(5)(a)
The Assignment Letter has been amended with paragraph 3 added (please see
the attached).
Security Bureau
From: SB-AIOREQ/SB/HKSARG
To: Preston Cheung <[FOI #889 email]>,
Date: 08/12/2021 16:14
Subject: Re: [Possible SPAM] Freedom of Information request - Legal
Assistance Scheme for Non-refoulement Claimants in relation to the Court
of Appeal’s Fabio judgement
--------------------------------------------------------------------------
Dear Mr Cheung,
Further to the interim reply of 22 November 2021, I am writing to inform
you that your application for Access to Information is still under
processing, as more time is required to gather and consolidate the
information/ statistics requested in your application. 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 #889 email]>,
Date: 22/11/2021 16:55
Subject: Re: [Possible SPAM] Freedom of Information request - Legal
Assistance Scheme for Non-refoulement Claimants in relation to the Court
of Appeal’s Fabio judgement
--------------------------------------------------------------------------
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 #889 email]>
To: FOI requests at Security Bureau <[Security Bureau request email]>,
Date: 18/11/2021 17:28
Subject: [Possible SPAM] Freedom of Information request - Legal
Assistance Scheme for Non-refoulement Claimants in relation to the Court
of Appeal’s Fabio judgement
--------------------------------------------------------------------------
Dear Security Bureau,
I refer to the Court of Appeal judgement of Fabio Arlyn Timogan & Ors
[2020] HKCA 971 (the judgement). In paragraph 54, the Court said it would
“send a copy of this judgment to the administrator of the Duty Lawyer
Scheme to remind those acting for children claimants to give careful
consideration to any potential child-specific risk when they present
non-refoulement claims on their behalf.”
In respect of this reminder from the Court, alongside the discussion and
establishment of new requirements for legal representation of children in
asylum proceedings in the judgement, I would appreciate if you could
provide information in relation to the Duty Lawyer Service (DLS)’s Legal
Assistance Scheme for Non-refoulement Claimants (the Scheme) on the
following:
Question (1): Has the Duty Lawyer Scheme updated its Assignment Letters
and/or issued any circulars/communications in drawing the attention of
lawyers listed under the Scheme (Duty Lawyers) to the Fabio judgement.
(a) If so, please provide a copy of such documents.
(b) If not, please advise on the DLS’ plan on when and how it deliver the
Court reminder to Duty Lawyers.
I refer to paragraphs 48, 49 and 53 of the judgement while being mindful
of the Scheme’s case assignment system and the merits test to the effect
that “whether or not a claimant will be provided with [publicly-funded
legal assistance (PFLA)] at the appeal stage is subject to merits
assessment by the lawyer concerned.” (Footnote 2, LC Paper No.
CB(2)581/18-19(01), available at
[1]https://www.legco.gov.hk/yr16-17/english...)
Question (2): In light of the Court’s affirmation of legal representation
for children in TCAB hearings as a requirement under the high standard of
fairness as established by the Court of Final Appeal, has the DLS
considered the following measures? If so, please provide details and a
copy of relevant documents where available. If not, please specify reasons
and the DLS’ plan to facilitate Duty Lawyers’ adherence to the new
procedural fairness requirement.
(a) Amend the DLS’ policy/service scope to ensure children claimants’
legal representation in USM proceedings;
(b) Issue guidelines to Duty Lawyers regarding their conduct of merits
assessment in cases involving children claimants;
(c) Facilitate Duty Layers’ participation in relevant training hosted by
the Law Society or the Bar Association.
Question (3): Has the DLS formulated a policy/guideline to handle cases
involving children claimants where the assigned lawyers decided against
providing PFLA at the appeal stage?
(a) In particular, would the DLS re-assign the concerned cases to other
lawyers for fresh considerations for the provision of PFLA? If not, please
specify reasons and the DLS’ plan to facilitate/ensure satisfaction of the
mention procedural fairness requirement.
Question (4): Has the DLS entered into communication with the Torture
Claims Appeal Board/ Non-refoulement Claims Petitions Office
("TCAB/NRCPO") concerning arrangements in cases where children claimants
are unrepresented, or only represented by their parents/ guardians (thus
failing to meet the high standard of fairness as considered by the Court
in paragraph 48 of the judgement)?
Question (5): In respect of the specific and careful consideration of
child-specific risk of harm that the Court requires of lawyers acting for
children claimants in paragraphs 53 and 54 of the judgement, alongside the
Court’s consideration of the formulation of child-specific risks in
paragraphs 34-36 of the judgement, has the DLS considered the following
measures? If so, please provide details and a copy of relevant documents
where available. If not, please specify reasons and the DLS’ plan to
facilitate Duty Lawyers’ adherence to this requirement.
(a) Amend the Assignment Letters in all cases (both first-instance and on
appeal) involving children claimants to highlight the mentioned
requirement;
(b) Issue guidelines to Duty Lawyers regarding their conduct of merits
assessment for cases involving children claimants;
(b) Issue guidelines to Duty Lawyers regarding their consideration and
presentation of child-specific risks in children claimants’
Non-refoulement Claim Forms, as discussed in paragraph 44 of the
judgement;
(c) Facilitate Duty Layers’ participation in relevant training hosted by
the Law Society or the Bar Association.
Regards,
Preston
-------------------------------------------------------------------
This is a request under the Code of Access to Information facilitated via
the accessinfo.hk website.
Please use this email address for all replies to this request:
[FOI #889 email]
Is [Security Bureau request email] the wrong address for Freedom of Information requests
to Security Bureau? If so, please contact us using this form:
[2]https://accessinfo.hk/en/change_request/...
Disclaimer: This message and any reply that you make will be published on
the internet. Our privacy and copyright policies:
[3]https://accessinfo.hk/en/help/officers
If you find this service useful as an FOI officer, please ask your web
manager to link to us from your organisation's FOI page.
-------------------------------------------------------------------
References
Visible links
1. https://www.legco.gov.hk/yr16-17/english...
2. https://accessinfo.hk/en/change_request/...
3. https://accessinfo.hk/en/help/officers
Dear Security Bureau,
I refer to your reply dated 5 January 2022. Please kindly provide additional information on the following.
Follow-up question (1)
In your reply to questions (2) & 5(b)-(c), it was said that “Subsequent to the abovementioned training course held on 30 April 2021, cases of minor claimants referred by ImmD and/or those referred back to DLS by TCAB are basically represented by the duty lawyers who have attended the said training course.”
Could you please provide:
a) The total number of Duty Lawyers who attended the said training course on 30 April 2021 either in-person or online.
i) Of these attendee, the number of those who are still listed under the Scheme and still receiving assignments to-date, or as of 15 February 2022.
b) The start date of the new case assignment policy, i.e. to assign non-refoulement claims involving child claimants only to Duty Lawyers listed under the Scheme who attended the said training.
c) The number of cases involving minor claimants which have received DLS representation as before the ImmD and TCAB, respectively, since the start date in b), as disaggregated by calendar month.
d) The average amount of time needed for the DLS to assign Duty Lawyers to the claims made by minors and those made by their parents, respectively, under the policy of separate legal representation for minor claimants, in the calendar year of 2021.
e) The average amount of time needed for the DLS to assign Duty Lawyers to the non-refoulement claims before the ImmD and TCAB, respectively, as disaggregated by calendar year between 2010 and 2021.
Follow-up question (2)
As pointed out by the DLS Circular dated 2 December 2020 at paragraph 5, the Court of Appeal held in paragraph 49 of Fabio that “[w]hen one is dealing with child claimants of tender age, *serious consideration* should be given to have a lawyer assigned by the Duty Lawyer Scheme to represent the children in the Board hearing notwithstanding the rejection of the claims by the Director. (emphasis added)”
a) On what basis is DLS representation to child claimants being granted/refused? What are the relevant considerations?
b) further to (a), what is the relevant threshold (or qualification criteria etc.) for whether DLS representation is to be provided to child claimants? Is this the same as that for adult claimants? If so, why?
(i) If not, what is the threshold? How has the DLS facilitated Duty Lawyers’ understanding of and adherence to such?
c) Has the DLS provided any guidance on child-specific risks or the child-appropriate threshold for harm to Duty Lawyers, apart from facilitating Duty Lawyers’ participation in the training course on 30 April 2021?
(i) If not, does the DLS have any mechanism in place to prevent the unfair denial of minor claimants’ access to justice, including where their request for DLS representation is refused based on an unfairly high threshold of merits assessment, and/or following a failure to properly consider child-specific risks by the Duty Lawyers assigned?
d) Is the option of seeking a ‘second opinion’ proactively offered to minor claimants (and their parents/guardians) following a decision by their assigned Duty Lawyers to decline to continue the provision of DLS representation on appeal? If so, how does this operate in practice?
(i) If not, does the DLS ensure awareness of this option and/or otherwise provided assistance to ensure assess to justice in the circumstances?
(ii) Please provide a copy of all relevant publicity materials, where available.
e) As highlighted in paragraph 11 of the Sample Assignment Letter provided in your last reply, I understand that the DLS no longer provides Country of Origin Information (COI) to Duty Lawyers to facilitate their representation of claimants. Given that COI is critical to assessing and articulating the merits of non-refoulement claims, including and particularly in the context of child-specific risks, have the DLS Administrator and/or the Legal Assistance Scheme for Non-refoulement Claimants Committee set out any criteria or guidance pertaining to the quality of COI research work? Is there any specific (or other relevant applicable) policy/guidance in relation to approving the claims for such research costs claimed by Duty Lawyers?
f) Considering observations made by the Court of Appeal in Jasvir Singh & Others [2021] HKCA 53 (Jasvir Singh & Ors) at paragraph 30, children are very rarely in a position to make professional complaints about the quality/standards of legal representation. As a result, they are at risk of being provided deficient and/or negligent legal representation. In light of these matters, and to ensure the relevant standards of fairness, can you confirm whether any policy/guidance have been put in place by the DLS Administrator and/or the Legal Assistance Scheme for Non-refoulement Claimants Committee to ensure legal services are delivered adequately by Duty Lawyers?
(i) What general supervisory or oversight power does the DLS Administrator and/or the Legal Assistance Scheme for Non-refoulement Claimants Committee have to ensure the quality of representation by Duty Lawyers? Are there any specific arrangements made in relation to child claimants? If so, please explain detail.
Follow-up question (3):
I would like to draw your kind attention to Jasvir Singh & Ors at paragraph 32, where the Court of Appeal held “…Alternatively, as in the case in Fabio Arlyn Timogan 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 non refoulement claim to the Board for reconsideration, *directing that legal representation to be provided for him at the rehearing before the Board*. (emphasis added)”
As publicly-funded legal assistance for non-refoulement claimants is currently provided through the DLS and the Pilot Scheme (https://www.info.gov.hk/gia/general/2019...), could you please provide:
a) Whether the DLS has received any such directions from the Court and/or TCAB/NRCPO to-date. If so, please provide a quarterly breakdown of such directions received by the DLS in 2021.
b) If the DLS has yet to receive any such Court/Board directions, whether the DLS has formulated a specific case assignment policy in observance of such directions.
(i) Please confirm whether/how such case management would differ from the standard process of assigning Duty Lawyers to non-refoulement cases.
(ii) Whether the DLS has adopted a more generous approach to assigning legal representation for USM claims filed by minor claimants.
(iii) If not, what is the basis for this approach?
c) Please explain with reference inter alia to the additional public expenditure likely caused by the need for Judicial Review proceedings to otherwise remedy such matters - i.e., in the event that these cases are remitted to the TCAB on procedural fairness grounds due to the lack of legal representation for child claimants.
Follow-up question (4):
In your reply to questions (3)-(4), it was said that “When 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, as mentioned above, DLS will refer the cases to the Official Solicitor’s Office for their assistance.”
However, it was provided thereafter that the DLS had approached the Official Solicitor’s Office (OSO) on 15 January 2021 in relation to a particular DLS case involving a minor claimant, in an attempt to seek the OSO’s assistance in providing separate representation, but to no avail based on the OSO’s reading of its statutory position in relation to USM proceedings before the ImmD and TCAB.
Could you please provide:
a) Whether this particular minor claimant eventually received separate representation in their appeal. If so, whether it was provided by the DLS. If not, whether the DLS Administrator/TCAB had found any concerns over the sufficiency of careful consideration of child-specific risk in this appeal without the benefit of separate representation.
b) Whether the DLS has maintained a policy to refer cases to the OSO under the said circumstances despite the OSO’s refusal to provide relevant assistance in general.
c) The number of appeals before the TCAB that received DLS representation in the each of the quarters of 2021.
d) The number of adult claimants and minor claimants, respectively, who received DLS representation on appeal to the TCAB in the each of the quarters of 2021.
e) The number of adult claimants and minor claimants, respectively, who were declined DLS representation on appeal to the TCAB in the each of the quarters of 2021.
f) Of those who were declined DLS representation before the TCAB in d), the number of adult claimants and minor claimants, respectively, who requested a second opinion in the each of the quarters of 2021.
g) Of those who requested a second opinion in e), the number of adult claimants and minor claimants, respectively, who were eventually provided with DLS representation in the each of the quarters of 2021.
h) In light of the OSO’s mentioned refusal, how does this effect the DLS approach to the merits test applied in the provision of a second opinion?
i) Further, for a minor claimant whose case failed to pass the DLS’ merits test upon seeking a second opinion, what would the DLS’ policy be if the minor claimant decides to file/continue their appeal on their own, being unrepresented or only represented by their parents/guardians? In the DLS’ experience to-date, would the TCAB allow such appeals to proceed under such circumstances?
Follow-up question (5)
As provided for in the budget heading of the Legal Aid Department (available at 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.”
Could you please provide:
a) Whether the DLS and/or the Security Bureau have approached the OSO subsequently for the latter’s assistance on formulating any policy and/or guidelines on the provision of legal representation and/or assistance to child claimants in USM proceedings before the ImmD and TCAB/NRCPO.
i) If so, please provide details of any relevant exchange and a copy of such policy/guidelines where available.
ii) If not, please provide whether the DLS and/or the Security Bureau would be agreeable to consider inviting the OSO’s assistance on such matters, as well as the timeline for such work. Where this course of actions is not supported by the DLS and/or the Security Bureau, please kindly specify reasons.
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 Security Bureau,
I refer to my follow-up questions raised in this request dated 15 February, available at https://accessinfo.hk/en/request/legal_a....
Please acknowledge if you had received such follow-up questions and the response time frame. Thanks for your assistance on this.
Regards,
Preston Cheung
Dear Mr Cheung,
Thank you for your email. We acknowledge that your follow-up questions
are well received and we will provide a reply as soon as possible. Sorry
for the inconvenience caused.
Security Bureau
From: Preston Cheung <[FOI #889 email]>
To: FOI requests at Security Bureau <[Security Bureau request email]>,
Date: 19/04/2022 14:28
Subject: Re: [Possible SPAM] Freedom of Information request - Legal
Assistance Scheme for Non-refoulement Claimants in relation to the Court
of Appeal’s Fabio judgement
--------------------------------------------------------------------------
Dear Security Bureau,
I refer to my follow-up questions raised in this request dated 15
February, available at
[1]https://accessinfo.hk/en/request/legal_a....
Please acknowledge if you had received such follow-up questions and the
response time frame. Thanks 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: SB-AIOREQ/SB/HKSARG
To: Preston Cheung <[FOI #889 email]>,
Date: 19/04/2022 18:16
Subject: Re: [Possible SPAM] Freedom of Information request - Legal
Assistance Scheme for Non-refoulement Claimants in relation to the Court
of Appeal’s Fabio judgement
--------------------------------------------------------------------------
Dear Mr Cheung,
Thank you for your email. We acknowledge that your follow-up questions
are well received and we will provide a reply as soon as possible. Sorry
for the inconvenience caused.
Security Bureau
From: Preston Cheung <[FOI #889 email]>
To: FOI requests at Security Bureau <[Security Bureau request email]>,
Date: 19/04/2022 14:28
Subject: Re: [Possible SPAM] Freedom of Information request - Legal
Assistance Scheme for Non-refoulement Claimants in relation to the Court
of Appeal’s Fabio judgement
--------------------------------------------------------------------------
Dear Security Bureau,
I refer to my follow-up questions raised in this request dated 15
February, available at
[1]https://accessinfo.hk/en/request/legal_a....
Please acknowledge if you had received such follow-up questions and the
response time frame. Thanks for your assistance on this.
Regards,
Preston Cheung
Dear Mr Cheung,
Further to the interim reply of 28.4.2022. 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 #889 email]>,
Date: 28/04/2022 17:39
Subject: Re: [Possible SPAM] Freedom of Information request - Legal
Assistance Scheme for Non-refoulement Claimants in relation to the Court
of Appeal’s Fabio judgement
--------------------------------------------------------------------------
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: SB-AIOREQ/SB/HKSARG
To: Preston Cheung <[FOI #889 email]>,
Date: 19/04/2022 18:16
Subject: Re: [Possible SPAM] Freedom of Information request - Legal
Assistance Scheme for Non-refoulement Claimants in relation to the Court
of Appeal’s Fabio judgement
--------------------------------------------------------------------------
Dear Mr Cheung,
Thank you for your email. We acknowledge that your follow-up questions
are well received and we will provide a reply as soon as possible. Sorry
for the inconvenience caused.
Security Bureau
From: Preston Cheung <[FOI #889 email]>
To: FOI requests at Security Bureau <[Security Bureau request email]>,
Date: 19/04/2022 14:28
Subject: Re: [Possible SPAM] Freedom of Information request - Legal
Assistance Scheme for Non-refoulement Claimants in relation to the Court
of Appeal’s Fabio judgement
--------------------------------------------------------------------------
Dear Security Bureau,
I refer to my follow-up questions raised in this request dated 15
February, available at
[1]https://accessinfo.hk/en/request/legal_a....
Please acknowledge if you had received such follow-up questions and the
response time frame. Thanks for your assistance on this.
Regards,
Preston Cheung
Dear Mr Cheung,
Our reply to your request for access to information is as attached,
please. Thank you.
[See attachment "Final Reply to CAI (Preston Cheung)_8.6.2022.pdf"]
Security Bureau
From: SB-AIOREQ
Sent: Friday, May 6, 2022 4:30 PM
To: Preston Cheung <[FOI #889 email]>
Subject: Re: [Possible SPAM] Freedom of Information request - Legal
Assistance Scheme for Non-refoulement Claimants in relation to the Court
of Appeal’s Fabio judgement
Dear Mr Cheung,
Further to the interim reply of 28.4.2022. 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
[1]Inactive hide details for SB-AIOREQ---28/04/2022 17:39:15---Dear Mr
Cheung, Your application for Access to Information has
beeSB-AIOREQ---28/04/2022 17:39:15---Dear Mr Cheung, Your application for
Access to Information has been received. The application is n
From: SB-AIOREQ/SB/HKSARG
To: Preston Cheung <[2][FOI #889 email]>,
Date: 28/04/2022 17:39
Subject: Re: [Possible SPAM] Freedom of Information request - Legal
Assistance Scheme for Non-refoulement Claimants in relation to the Court
of Appeal’s Fabio judgement
--------------------------------------------------------------------------
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
[3]Inactive hide details for SB-AIOREQ---19/04/2022 18:16:20---Dear Mr
Cheung, Thank you for your email. We acknowledge that
youSB-AIOREQ---19/04/2022 18:16:20---Dear Mr Cheung, Thank you for your
email. We acknowledge that your follow-up questions are well re
From: SB-AIOREQ/SB/HKSARG
To: Preston Cheung <[4][FOI #889 email]>,
Date: 19/04/2022 18:16
Subject: Re: [Possible SPAM] Freedom of Information request - Legal
Assistance Scheme for Non-refoulement Claimants in relation to the Court
of Appeal’s Fabio judgement
--------------------------------------------------------------------------
Dear Mr Cheung,
Thank you for your email. We acknowledge that your follow-up questions
are well received and we will provide a reply as soon as possible. Sorry
for the inconvenience caused.
Security Bureau
[5]Inactive hide details for Preston Cheung ---19/04/2022 14:28:27---Dear
Security Bureau, I refer to my follow-up questions raisePreston Cheung
---19/04/2022 14:28:27---Dear Security Bureau, I refer to my follow-up
questions raised in this request dated 15 February, av
From: Preston Cheung <[6][FOI #889 email]>
To: FOI requests at Security Bureau <[7][Security Bureau request email]>,
Date: 19/04/2022 14:28
Subject: Re: [Possible SPAM] Freedom of Information request - Legal
Assistance Scheme for Non-refoulement Claimants in relation to the Court
of Appeal’s Fabio judgement
--------------------------------------------------------------------------
Dear Security Bureau,
I refer to my follow-up questions raised in this request dated 15
February, available at
[8]https://accessinfo.hk/en/request/legal_a....
Please acknowledge if you had received such follow-up questions and the
response time frame. Thanks for your assistance on this.
Regards,
Preston Cheung
