Hong Kong Bar Association criticism of the USM

Post Date: Feb 23rd, 2014 | Categories: Advocacy | COMMENT

 HKBA press release on USM – 14 Feb 2014

  • HKBA notes that the Security Bureau never consulted the legal profession on the operational details of the USM;
  • HKBA was never formally provided with USM details for the purpose of solicitation of views prior to their finalization in February 2014;
  • HKBA notes there are uncertainties regarding the transitional arrangements concerning claimants at different stages of processing, determination, appeal and judicial redress;
  • HKBA notes the lack of publication on the arrangements on pending and future appeals of CAT claims;
  • HKBA notes that UNHCR will cease screening asylum claims under its mandate in Hong Kong following the introduction of the USM;
  • 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 case officers to determine three types of claims applying three sets of standards with the same appeal board;
  • 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 decision by Immigration: CAT claim are subject to statutory appeal to the TCAB, while CIDTP and Refugee claims are subject to administrative petitions to an adjudicator;
  • HKBA joins the Law Society in urging the Administration to amend the Immigration Ordinance to include CIDTP and Refugee claims and to take stock of the experiences in implementing CAT;
  • HKBA highlights the major difficulties stemming from the modification of the arrangements between the Administration and the UNHCR, where asylum seekers could lodge claims while their visas were still valid;
  • 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 and 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;
  • HKBA calls upon the Immigration Department to publish a comprehensive document setting out the transitional arrangements formulated to implement the USM;
  • HKBA finds it surprising that the Administration has omitted to brief duty lawyers of the transitional arrangements which must have been decided well before early February;
  • HKBA suggest that all CAT claimants should be invited to attend a briefing session and be given the opportunity to submit a completed “Supplementary Claim Form”;
  • 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;
  • HKBA considers that the Immigration Department should as a matter of routine disclosure the categories and descriptions of the country of origin information that case officers refer to;
  • HKBA considers that Immigration Department should disclosure the reports of its field studies to Bangladesh, India, Pakistan and Sri Lanka for the updating of knowledge and information on such countries;
  • HKBA is of the view that these suggestions are consistent with the discharge of the joint endeavour between the claimant/lawyer and the decision maker in the proper examination of a protection claim.