Founded in 1949, the Hong Kong Bar Association (“HKBA”) is the professional organisation of barristers in Hong Kong and is registered under the Societies Ordinance. The objects of the Hong Kong Bar Association are generally to consider and to take proper action on all matters affecting the legal profession and the administration of justice. These include among other things the improvement of the administration of justice in Hong Kong.
In a press release issued on 14 February 2014, the HKBA submitted its views on the Unified Screening Mechanism (“USM”) that Hong Kong Government will launch on 3 March 2014. The original document is available here. The HKBA raised the following strong criticisms against a system that takes granting protection less than seriously:
- HKBA deplores this highly unsatisfactory situation which has left significant changes and proposals uncommented, and potential difficulties unidentified;
- USM claims to be a “unified” mechanism but uses the same Immigration case officers to determine three types of claims applying three sets of standards with two different appeal systems;
- USM remains divided between a statutory scheme under the Immigration Ordinance (CAT) and an administrative scheme (CIDTP and Refugee) not under said Ordinance. HKBA seriously doubts whether this approach is a proper one as it is at times unsatisfactory, if not ridiculous;
- HKBA is concerned about the process of redress following a rejection by Immigration: CAT claim are subject to statutory appeals to the Torture Claim Appeal Board, while CIDTP and Refugee claims are subject to administrative petitions to an adjudicator appointed by the Administration;
- HKBA raises questions about successful Refugee claimants’ information being passed on to UNHCR for further recognition and resettlement without high standards of fairness;
- The legal profession again calls upon the Administration to reconsider its position regarding the extension of the Refugee Convention to Hong Kong so that screening of refugees can truly determine their status and effectively protect such claimants;
- The legal profession notes that both the People’s Republic of China and the Macao Special Administrative Region are parties to the Refugee Convention
- HKBA criticizes the irresponsible approach taken by the Immigration Department in issuing notices to claimants to seek legal advice from duty lawyers who have not been fully briefed on transitional arrangements;/li>
- HKBA criticizes as unrealistic and harsh the 21 days time limit for returning the completed “Supplementary Claim Form”. This is even shorter than the 28 days time limit for returning completed Torture Claim Forms which requires equal, if not less effort.
Dear Aleta –
In reply to your below email requesting use of our notice board, we are not posting your flyer, and here are my thoughts why.
First, there is little you can teach about USM that is not in the public arena already and hasn’t been torn apart by the Hong Kong Bar Association 14 February 2014 submission.
Second, we appreciate that HKRAC’s days as the UNHCR golden boy are over. We blogged in “Winners and Losers” that HKRAC is about to experience a culture shock entering shark-infested USM waters. To achieve results in this arena more than cocktail parties are necessary as the opponent of refugees is fierce and powerful.
Most lawyers in the “Big City” law firms that support HKRAC are clueless about the cruel oppression refugees suffer. It is of concern that they are mostly unqualified to represent protection claimants at the Immigration Department, unable to face racist magistrates and unskilled for judicial reviews in the High Court. There is less than a dozen human rights lawyers in town and Duty Lawyer Service will not assign more cases to them.
If HKRAC cannot give legal advice or appoint pro bono lawyers, then it is reduced to a pathetic signboard pointing the way towards a process in which it has no say and no power.
Refugees desperately require either legal advice, which HKRAC cannot give, or fearless advocacy, which HKRAC cannot stomach!
Had you paid attention to OCCUPY ISS, you would know that Vision First is closed to support the Refugee Union’s historic occupation of a despotic contractor. Not only did I sleep in the streets for three days, ready for a police assault, but I haven’t been to the office since 10 February and won’t return until ISS falls.
On the frontline, the absence of HKRAC and other NGOs and churches serving refugees was regrettably noted. Instead of emailing about our notice board, you could have bolstered the protest line with your staff and flyers – that would have earned you great respect!
Similarly, instead of sitting at your desk, you could have inspected refugee ghettos and offered assistance to a thousand neglected refugees, who supposedly didn’t fit your lucrative business model before.
Let me vent some anger (which is well pondered over), by saying that it is apparent to us that HKRAC doesn’t have the balls to fight in the USM arena. There is tremendous brutality behind Immigration, Duty Lawyer Service, adjudicators and their hard-line trainers.
If you don’t know the enemy how can you enter the fight? We just hope HKRAC will become an asset in this fierce battle. But be aware that nothing you have learnt at UNHCR can prepare you for this dirty fight!
———- Forwarded message ———-
Dear Vision First,
I hope you are well. I’m attaching a flyer about new group information sessions on the USM which HKRAC are launching. Please find a flyer attached.
I’d be grateful if you could print the flyer and put it on the notice board in your center so that your clients can have access to the sessions. We can also drop some smaller leaflets to your centre if you would like to have them available to your clients.
I’m always happy to talk more about our services and answer any questions you may have, don’t hesitate to ask. Let me know if you’d like us to drop some flyers over.
Hong Kong Refugee Advice Centre
Aleta Miller writes for The South China Morning Post on 11 February 2014
It has long been Hong Kong’s shame that it is one of the only wealthy, developed jurisdictions in the world that does not offer long-term protection to people fleeing from human rights abuses.
With the introduction of the Unified Screening Mechanism, the government’s new system for dealing with protection claims, announced last Friday and due to be rolled out next month, it so far appears to be business as usual.
The mechanism brings under one process refugee claims together with claims against torture and cruel, inhuman or degrading treatment or punishment. These are now collectively known as “non-refoulement” claims. The government did not choose to implement this system; it was forced to do so by a Court of Final Appeal ruling last March.
Late as it is, it is positive that the mechanism will soon be operational. But we, other non-governmental organisations and the protection claimants themselves are sorely disappointed that there has been no consultation with civil society about the establishment of the new system, especially in its consideration of the most vulnerable people, like the 2,000 refugees we have assisted at our centre over the past six years.
These are men, women and children who have experienced unspeakable traumas like rape, torture and war. The people we support are the survivors, those who have managed to escape to Hong Kong looking for protection, often to be doubted because what they have suffered is so unbelievable in the context of our own sheltered lives.
We have spent years working intensively with these survivors to enable them to give voice to the most traumatic events upon which the determination of their case may hang, and to ensure they have a fair hearing and are not mistakenly rejected and returned to face potential torture, persecution or even death. There must be better provisions built into the mechanism to meet their needs. Many questions remain unanswered about what happens to claimants at the end of the process. If someone has a successful claim with the government, they will then be sent to the UN refugee agency to see if they meet the definition of a refugee, as defined by the Refugee Convention. If they do, the UNHCR will assist them with potential resettlement to a third country.
But this can take years. What do they do in the meantime? Will they languish in limbo in Hong Kong, as current refugees do?
Hong Kong continues to refuse to see local integration as a long-term option, and declines to grant the right to work or simply to volunteer even to recognised refugees and protection claimants. With the government now assuming responsibility for making decisions, officials need to get real about the durable outcomes for those people.
To try to fill some of these gaps, we are using our experience to launch new, tailored, independent information sessions for claimants. We believe access to high-quality information is a right and we will continue to support these vulnerable people to ensure their needs are met.
Yet again, civil society will be filling the holes left by a government lacking the political will to care for some of our city’s most vulnerable people.
The decisions the government will make under the mechanism could mean the difference between life and death for the people we work with. As the primary duty-bearer for human rights, the government has a critical window of opportunity to consult and co-ordinate with NGOs, to improve its decision-making and to create a fair, transparent and efficient process to ensure people seeking protection are not returned to places where they may face harm.
The pressure is on for the government to finally get it right.
The government should be concerned that refugees are succumbing to the pressure of segregation. Ugly forces are taking hold of refugees who despaired for too many years, often more than a decade, without hope and justice. Vision First is alarmed that some refugees have been oppressed to the breaking point. They are exploding.
One longtime refugee noted, “You can only pour so much water into a bucket before it spills. The government should worry about security because refugees have started to do some things that hurt the community. Before they were not thinking about this. Before they were expecting that things would improve, but now they had lost hope. When hope is gone, people do desperate things.”
Refugees are becoming convinced that Hong Kong will never protect them. An African refugee said, “The government is just stirring us around in a hot pot. They offer one fake solution after the other. They call the latest one USM. We have no future, no hope and have lost trust in Hong Kong. After years of abuse Hong Kong has become the enemy. We are trapped. We have nothing to lose and we resent those who failed to protect us, refused to screen us for years and have robbed us of our future.”
Scores of individuals are slipping into the heart of darkness. They come from Africa as well as South Asia. They belong to every nationality that has struggled against asylum injustice in Hong Kong. They are becoming desperate having reached a point where they would rather die, than continue suffering. One might learn valuable lessons from Palestinian youths who lost hope under Israeli oppression.
The Hong Kong government should take the blame for the radicalization that is emerging. It is shameful how extraordinary refugee claims were left unassessed for years, because supposedly they could not be reasonably rejected. Such policies inflict violence on individuals who once decided that violence was not the answer. One should consider that these people have seen blood, family and friends chopped to pieces. They have laid in the blood of their loved ones. They are not intimidated by anything.
A Middle-Eastern refugee said, “Hong Kong should start building more prisons because refugees are going crazing. They cannot take this oppression any more without exploding! Arrest and imprisonment mean nothing. It’s a cake walk for people who were tortured and raped. What do they have to lose?”
Authorities should pay attention to this shift. The answer to the asylum problem is not oppression, but JUSTICE. Deny justice for too long, to too many people, and trouble should be expected. These refugees blame the government for not taking them serious. Those who were waiting can wait no more. Those who were patient, have lost their patience. Scores are today slipping into darkness.
These people know the streets. They know where security cameras are and where they are not working. They live in the streets and observe enforcement patters and routines. Many of them were in the army. Some have advanced military skills. A few spent years in training camps in Afghanistan, Nigeria, Sudan and the Yemen. They arrived with different passports, as nationality is not a fixed concept in the third-world.
Despair is overwhelming refugees who hoped in vain that Hong Kong would protect them. Disillusionment is taking hold of their mind. Being banned from working forces people into an aimlessness that is detrimental for fighting spirits.
Another African refugee burst out, “We are not cows. You cannot just feed us and give us a place to sleep for ten years. We want justice where justice was promised … In many people’s mind darkness is rising. Our hearts are filled with hatred, despair and rage. It’s not right the way they treated us. They took our future away and left us with nothing.” The last glimmer of hope seems to have been extinguished.
A veteran South Asian refugee explained, “This radicalization follows oppressive government policies. They are alienating people who have lost a reason to live. The answer is not to arrest everyone. They cannot all be jailed forever. They cannot go home, not today, not ever … The answer is to allow them to work so that they can build a life with dignity and respect.”
Danny Lee writes for the South China Morning Post on 8 February 2014
Immigration Department acts on court ruling to announce it will be sole judge in refugee cases, but critics voice concern for existing claimants
All asylum seekers arriving in Hong Kong are to be screened by the government under a mechanism starting in March, a year after the Court of Final Appeal forced a rethink on the issue. Currently, the Immigration Department screens people who claim to be escaping torture, and the UN High Commissioner for Refugees screens refugee claims. The top court ruled in March last year that the government could not simply rely on the UNHCR to decide whether someone was a refugee, and must assess all cases independently and fairly.
The Immigration Department will take responsibility for assessing all such claims, and the UN refugee agency, which has run the screening programme for asylum claimants, will have no further role. However, leading human-rights lawyers say the new process has been rushed in and lacks detail about transitional arrangements for the fate of existing torture claimants in the city.
Refugee advocates had been complaining for years that the lack of a unified system caused long delays because asylum and torture claims often overlapped. In a statement yesterday, the government said all “non-refoulement” cases – those claiming that expulsion or extradition would expose them to risks – would be handled under the new Unified Screening Mechanism (USM) from March 3. It said the new process would “meet with the high standards of fairness required by law, and at the same time prevent abuse by economic migrants who aim to protract their unlawful stay in Hong Kong”.
But human-rights lawyer Mark Daly said: “In my view, there has been no consultation, no independent scrutiny of these procedures.” Fellow lawyer Mark Sutherland agreed that the measure had been fast-tracked without proper consultation. Another rights lawyer, Robert Tibbo, noted it had taken more than a year for the Security Bureau to act on the Court of Final Appeal ruling in December 2012 known as the Ubamaka judgment – after Nigerian Edward Ubamaka, who unsuccessfully fought a deportation order – and more than three years after the Bar Association called for a unified screening mechanism.
He added: “I hope that all the torture claims that are ongoing are included in the USM.” The government said there would be suitable arrangements for previous torture claimants. The Security Bureau said it handled 491 torture claims last year, and is processing 2,590. The city’s policy of not granting asylum to anyone will remain in force. People granted refugee status in Hong Kong are resettled elsewhere.
Department: Secretariat Press Office (Security)
Serial No.: GIS201402070307
Commencement of unified screening mechanism for claims for non-refoulement protection
The Government announced today (February 7) that a unified screening mechanism (USM) will commence operation on March 3 (Monday) to determine claims for non-refoulement protection against expulsion, return or extradition from Hong Kong to another country on applicable grounds including risks of (i) torture under Part VIIC of the Immigration Ordinance, Cap. 115; (ii) torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383; and (iii) persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (the Refugee Convention).
For persons subject or liable to removal or deportation (or whose surrender is requested in surrender proceedings) from Hong Kong who claim that the expulsion, return or extradition of them to another country would expose them to the above risks, they may lodge non-refoulement claims with the Immigration Department (ImmD). Under the USM, the ImmD will assess their non-refoulement claims on all applicable grounds in one go.“
The USM will enhance implementation of our policy objective to process claims for non-refoulement protection against expulsion, return or extradition to another country under procedures that meet with the high standards of fairness required by law, and at the same time prevent abuse by economic migrants who aim to protract their unlawful stay in Hong Kong,” a Government spokesman said.
Procedures of the USM will follow those of the current statutory screening mechanism for torture claims made under Part VIIC of the Immigration Ordinance, Cap. 115, including the requirement for claimants to provide grounds and evidence in a non-refoulement claim form, and afterwards to attend a screening interview with immigration officers to provide information and answer questions relating to their claims.
To allow the Torture Claims Appeal Board (TCAB) to consider appeals/petitions lodged by aggrieved claimants in one go, the Chief Executive has delegated his authority under Article 48(13) of the Basic Law to all TCAB Members, in their personal capacity, to handle petitions in regard to grounds other than torture risks under Part VIIC of the Immigration Ordinance.
Suitable arrangements will be put in place for those claimants who have previously lodged a torture claim with the ImmD such that their non-refoulement claims on other grounds than torture risks under Part VIIC of the Immigration Ordinance will also be considered under the USM.
Claimants may continue to receive publicly funded legal assistance through the Duty Lawyer Service under the USM.
The United Nations High Commissioner for Refugees (UNHCR) will henceforth cease the screening of asylum claims under its mandate in Hong Kong. Foreigners who seek non-refoulement protection in Hong Kong may approach the ImmD to make non-refoulement claims.
“The commencement of the USM does not affect the Government’s position that the Refugee Convention and its 1967 Protocol have never been applied to Hong Kong and our firm policy of not determining the refugee status of or granting asylum to anyone,” the spokesman emphasised. “The UNHCR will continue to provide international protection to refugees in accordance with its mandate. In this connection, persons whose non-refoulement claim is substantiated under the USM on grounds of persecution risk will be referred to the UNHCR for recognition as refugees under its mandate and, if so recognised, arrangement of resettlement of them to a third country.”
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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.