The assumption is generally made that lawyers know what they are doing. There are three crucial players in a screenings interview, presuming interpretation is reliable. The key actor is the claimant who reports the narrative. The second is the immigration officer assumed to be a skeptic. The third is the duty lawyer with the high standards of practice. Often the unknown variable is the third element.
Below is an actual conversation between two duty lawyers at the Kowloon Bay Immigration office:
Good Lawyer: “Good morning! How are you? Where is your client from?”
Bad Lawyer: “I am fine, thank you … I actually don’t know what country he is from.”
Good Lawyer: “Is there an interpreter with your client. What language does he speak?”
Bad Lawyer: “Good question. I don’t know what language the IT speaks. ” (IT = interpreter)
Bad Lawyer: “What are those documents you are reading?”
Good Lawyer: “They are the answer to one question in the CAT Questionnaire. There are 47 pages just for that one point. The rest is in this bundle.”
Bad Lawyer: “I only have three lines in reply to that question. Do you do much research?”
Good Lawyer: “These are complex cases that require much research and preparation.”
Bad Lawyer: “I see … for me CAT work is just bread and butter business …”
(It should be noted that Bad Lawyer was several years senior to Good Lawyer.)
There are legitimate reasons to question the motivation and preparation of duty lawyers engaged in CAT work. It might be bread and butter to them, but it is life and death for refugees. Vision First has repeatedly lamented the unsatisfactory performance of most DLS lawyers. We raised the issue in this blog and this article. Duty lawyers are often detached, when they aren’t indifferent to their clients.
Expressions like, “This is my bread and butter business” or “Twelve cases done and dusted this month”, illustrate the alarming disconnect between advocates and claimants. Not only is there a lack of fairness, but legal defenders seem defeated before they enter the arena. If it weren’t for the money they would never have signed up for this work. There are concerns that low hourly rates attract poor advocates.
There is a parallel with civil society that has also given up on the refugee cause and accepted the government propaganda that there are only 11 successful torture claims (including children) out of 13,000 because everyone is abusing the system. Defeatism is spreading in a community that disregards the concept that every claim should be presumed to be valid until the entire legal process is exhausted.
The government is obliged to assess claims according to high standards of fairness.
It was the lack of fairness that in 2005 collapsed the government bare reliance on UNHCR (Prabakar). The process was slammed again in 2008 for a failure to provide legal aid and representation (FB). Then again in 2011 for a failure to include the CIDTP element (Ubamaka). A fourth blow was delivered in 2012 (C et all) terminating reliance on UNHCR for lack of legal representation, among other irregularities.
The presence of legal representatives does little to assure the fairness of the screening process.
For protection claimants to believe in the system, duty lawyers must rise to a higher standard. This takes training and experience. There are rumours that the current 350 CAT lawyers will be replaced, which is logistically doubtful, but would be desirable if exams and mentoring were introduced. Whether refugees will enjoy high standards of fairness depends entirely on the caliber of their lawyers.
As long as duty lawyers are dreaming about buttering their financial bread — justice will be raped.
In computer science there is a striking expression, ‘garbage in, garbage out’ – a rubbish input will inevitably produce a rubbish output. Only that in the refugee arena it could be the victim hanging, not the computer. There is more at stake than hourly rates and monthly salaries when fighting for justice in this field. Great lawyering should be the norm, not the exception when life and limb are at stake.
Lawyers, civil servants, case workers and activists should ponder, “Who butters my bread?”
Jennifer Ngo writes for the South China Morning Post on 3 November 2013
A unified screening system for asylum seekers that is due to be up and running by the end of this year remains a mystery, with NGOs saying that the government’s continued silence was “extremely disconcerting”. Proposed by the government and approved by a Legislative Council panel in July, the new unified screening mechanism (USM) would monitor torture claimants as well as those seeking asylum on the grounds of persecution or cruel, inhuman and degrading treatment – “in one go”.
A government spokesman confirmed in a statement that it had set a deadline for the USM of the end of this year. “But since [July], we haven’t heard anything,” said Victoria Wisniewski Otero from the Refugee Advice Centre, at a seminar on the topic yesterday. “It’s worrying for the asylum seeker community here in Hong Kong and it’s creating a lot of anxiety.”
As Hong Kong is not subject to the 1951 Refugee Convention, the government currently screens torture claims only, meaning the local office of the United Nations High Commissioner for Refugee (UNHCR) has had to take on the task of screening those seeking asylum who are not necessarily doing so on the grounds of having been tortured.
However, the city has been a signatory to the UN Convention Against Torture since 1992, and it cannot expel, return or extradite a person to another state where there are substantial grounds for believing that the person would be in danger of being tortured. Two Court of Final Appeal decisions that said the government could not rely on the UNHCR to screen asylum seekers prompted the government to push out the unified process.
Otero said the government had made an open invitation for suggestions from stakeholders in July, but none had heard back since submitting their opinions. “There is a lot of uncertainty on how the USM will run. There are no details about how the system will be set up,” she said. Ambrose Chiu Chun-ki, the assistant resettlement officer at the UNHCR, said the agency had been having negotiations with the government since July.
For six and a half years our situation is unchanged here. Each day we die and wake up again. Why? Because we don’t have any choice. We are very peaceful people. Everyone respects the law. We are only waiting for a fair decision from the Immigration Department.” – Tariq, Pakistan
The wasted eight years of mine. Nothing (can explain this). I don’t know how to explain that feeling. It’s so bad. You keep somebody here. He cannot work. He just stays at home. Now I have no future. I am just waiting for my two kids’ future. That’s all.” – Ibrahim, Togo
Until today the screening system has been a failure. It has been a failure on the UNHRC side. As far as the Immigration Department is concerned, we are worried. We are worried because the track record has been very poor. (The recognition rate) is about .02%. If you compare that with any other developed country, where the average is between 25 and 40%, there are good reasons to be concerned.” – Cosmo Beatson
Samuel Chan writes for South China Morning Post on 9 September
Department says it will plug loopholes in the screening process but the much-criticised 28-day limit for submitting evidence will stay
The Immigration Department claims a new screening system for asylum seekers due to take effect by the end of the year will plug loopholes in the process. But a contentious 28-day deadline for submitting supporting documents – which one academic described as “not appropriate” under a brand-new system – would not be extended. Details of the unified approach to assessing asylum claims have yet to be revealed but the department said it would be based on the existing torture claim framework.
Under the new system, in addition to assessing torture claims, the government would also be legally obliged to consider whether claimants faced persecution, and whether they may be subjected to cruel, inhumane or degrading treatment or punishment (CIDTP) when assessing applications for asylum status. Assistant director of the department William Fung Pak-ho, who is in charge of torture claims, said combining the three types of asylum claims would make it harder to exploit the system.
Today, anyone seeking refuge in Hong Kong on the grounds that they faced torture if they were sent home must apply to the Immigration Department. But to claim asylum as a refugee, they must apply to the UN High Commissioner for Refugees. Some applicants have in the past filed one claim at a time to the government or the UNHCR, and, when the applications were rejected, sought a judicial review to prolong their stay in the city. “It usually takes claimants about 20 months on average, after they arrive in Hong Kong, to file their claims. So we can’t rule out abuse of the screening system as it stands,” Fung said.
He added that 80 per cent of the 12,634 claims the department had received since 2005 had been filed only after the claimants were arrested for offences such as overstaying or working illegally. There are 3,784 applications pending. The department has rejected 3,644 torture claimants since December. Just 10 of those cases were substantiated, and two of the proven cases were successful on appeal. A key criticism of the screening system is the 28-day period for applicants to file supporting documents to prove their claims.
Fung defended the decision to retain this rule under the new system. “We won’t necessarily turn down an application straight away if a claimant cannot submit all the supporting documents within 28 days,” he said. He added that an application could include an explanation of which documents the claimant was waiting for, and when they could be expected – as long as it was within a reasonable time. Other parts of the system will stay the same. At least one interview will be arranged within two months of an application being received to hear the grounds of the claim before assessment begins. And the Duty Lawyer Service will continue to provide free legal assistance to claimants.
Kelley Loper, director of the University of Hong Kong’s Master of Laws in Human Rights, said flexibility in the deadline for supporting materials was “particularly important” under the new system. “It’s not appropriate to adopt strict timelines used in other jurisdictions that have much more developed mechanisms and where decision-makers have more experience and knowledge of the standards that need to be applied,” Loper said.
The Duty Lawyer Service was also hoping the 28-day deadline could be extended. Human rights lawyer Mark Daly was concerned about whether all three claims would be statutory under the new system. At present, only torture claims are statutory. He said if persecution and CIDTP were not also made statutory it would strip the legislature of power to scrutinise future changes to the system. The department said it was negotiating with the relevant parties to finalise operational details.
Lo Wei writes for South China Morning Post on 3 July 2013
The government has earmarked HK$450 million this year to sponsor torture claimants and asylum seekers stranded in Hong Kong, partly due to a “broken” screening system. Critics say public money could have been saved if the city had introduced a more efficient system to avoid cases piling up. Under the present system, people seeking refuge may apply to the Immigration Department to make a claim that they face torture if returned home, or to the UN High Commissioner for Refugees for refugee status. Some apply for both. The government plans to expand the torture claims assessment mechanism to cover refugee claims by the end of the year. The move follows a Court of Final Appeal ruling in March that said the government must not rely on the UN agency to determine a person’s refugee status. “It has taken a long time for the government to set up this unified system. This is long overdue,” human rights lawyer Mark Daly said. “People have been taking advantage of the broken system.” As claimants can make applications to both the department and the UN, it delays a conclusion on their fate.
Though the number of new applicants had decreased in the past few years, the cases had piled up, Daly said. About 4,000 torture claims are pending. Since 2009, seven claims have been substantiated, 3,355 rejected and 3,458 withdrawn. Daly said the time required to process applications made it difficult for genuine claimants while attracting others with different purposes, such as those who wanted to work illegally in the city. Secretary for Security Lai Tung-kwok told the Legislative Council security panel yesterday that the government planned to spend HK$450 million on the claimants in the 2013-14 financial year.The help would include legal and financial assistance for them as they were not allowed to work in the city, Lai said.
Legal assistance, provided for applicants in the existing scheme, will be extended to the unified scheme. Legal-sector lawmaker Dennis Kwok Wing-hang raised concern that the four-day training for lawyers in the current scheme was insufficient, and that further training was needed. Lai said further training would be conducted, but did not give details. There is already a law for screening torture claims, but not for two other categories – persecution and cruel, inhumane, degrading treatment or punishment – which will be included in the unified scheme. Lai said an administrative screening mechanism would be introduced for the latter two before a law was passed. Democratic Party lawmaker James To Kun-sun said the lack of a law for the two categories might open the floodgates to litigation. Lai said the government had to gain experience before drafting a law.
On 2 July 2013, the Panel on Security of the Legislative Council will meet to discuss the
“Screening of Non-refoulement Claims”
9. In view of the CFA judgments in Ubamaka and C, the ImmD would withhold removing or deporting any person to another country where the person has made a torture or CIDTP claim under Article 3 of BOR and/or a persecution claim with reference to Article 33 of the Refugee Convention until his claim(s) has been finally determined in a manner that satisfies high standards of fairness (on top of a torture claim under Article 3 of CAT which is already available to the claimants). Where any of these claims is substantiated, the ImmD would provide non-refoulement protection to the claimant.
10. We plan to assess non-refoulement claims (namely CAT, BOR Article 3 and persecution) under a USM based on the existing statutory CAT claim screening mechanism. Under the USM, for example, claimants will complete a unified claim form 7 to provide all grounds of the non-refoulement claim or all available documentary evidences. After a completed claim form is returned by claimants, the ImmD would arrange for them to attend an interview to provide information and answer questions relating to their non-refoulement claims. Claimants must provide all information or all available documentary evidence relating to their claims for the ImmD’s assessment in one go.
11. The ImmD will assess a claim for non-refoulement protection on applicable grounds, considering whether there are substantial grounds to believe that the claimant, if removed or deported to another country, will face a real and substantial risk of being subjected to torture or CIDTP, or has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion in that country, or any other reasons to withhold removal of the claimant, giving weight to determination conducted by the UNHCR, if any. Decisions with reasons will be provided to claimants.