A Rohingya refugee has been granted legal aid to defend his claim for protection in Hong Kong – a rare successful case as the percentage of legal aid awards granted to judicial review applicants has dropped drastically over the last year.
Having been forced to flee Myanmar as a child, the refugee returned to his home country as an adult but was met with “severe violence and repression,” according to NGO Justice Centre Hong Kong. He fled to Hong Kong and claimed protection around a decade ago.
The grant, awarded on Thursday, came after Justice Centre, international law firm Davis Polk & Wardwell and human rights barrister Kirsteen Lau worked together to appeal the Legal Aid Department’s initial decision to reject the refugee’s application.
Despite Thursday’s success for the refugee, the latest figures released by the Legal Aid Department show a decline in legal aid certificates granted for judicial review cases.
Last year, only 29 out of 1,046 legal aid applications involving judicial review challenges – less than 3 per cent – were approved. The Legal Aid Department noted that the majority of the applications were filed by non-refoulement claimants, accounting for around 80 per cent of requests.
In comparison, the department accepted around 20 per cent of legal aid applications in 2015.
Access to justice concerns
Issac Shaffer, head of Justice Centre’s protection claimant services, said the low acceptance rate of legal aid applications is “worrying” as it disproportionately affects the community’s most marginalised groups such as refugees and torture victims, thereby undermining access to justice.
Non-refoulement claims are vetted by the government-run Unified Screening Mechanism, which came into force in 2014. Unsuccessful claimants may file an appeal to the Torture Claims Appeal Board. If the rejection is upheld, claimants can then apply for judicial review to the High Court.
Shaffer told HKFP that, without legal aid, those seeking protection in Hong Kong are highly unlikely to be able to afford legal advice on how to navigate Hong Kong’s complex legal system, since they are not allowed to work in Hong Kong. Those who are not sufficiently proficient in English face extra difficulties.
Referring to the pro bono work provided to the refugee by lawyers and by Justice Centre, Shaffer said: “If you need to have that much input from externally funded organisations, that’s an indication that the public system has been propped up in order to ensure proper access to justice.”
“This shows the legal aid system is broken – it isn’t working.”
“Legal aid is there for us in times of crisis, to make sure our rights can be defended regardless of wealth or privilege,” he added.
Asked about the figures, a Legal Aid Department spokesperson told HKFP: “There has not been any change in the policy or procedures in processing legal aid applications including those for judicial review.”
It said that only those who satisfy both the means test and merits test qualify for legal aid, and that independent private counsels will be consulted if the case is complex or has no precedent. Applicants who are refused legal aid could then appeal the decision to the High Court’s Registrar, whose decision is final, the department added.
Shaffer also expressed concern at the lack of transparency and accountability of the Torture Claims Appeal Board. He said that less than 1 per cent of claims have been successful at the board, but the details of its decisions are not publicly available.
Limited information about these decisions is sometimes revealed when claimants seek legal challenges through the High Court, whose decisions are available in the public domain.
In March, a claimant won a judicial review against the Torture Claims Appeal Board after one of its adjudicators refused to adjourn the hearing even though the claimant was suffering from pregnancy-induced pain. The judge, in deciding that there was an error of law made and procedural irregularity in the proceedings, criticised the adjudicator for “dealing with the applicant’s well‑being in a most perfunctory manner.”
Last month, the High Court granted leave to a non-refoulement claimant in a case assisted by Justice Centre. The judgment revealed that the board had relied on Wikipedia for information about the claimant’s country of origin. The site made up 40 per cent of the sources used in deciding to reject the claim.
But the court held that the use of Wikipedia is not necessarily problematic unless claimants can show that the information relied on was inaccurate.
The court also heard that the adjudicator relied on the situation of Ahmadi Muslims in Pakistan to make a risk assessment about the claimant, who is an Ahmadi Muslim from Bangladesh. However, the court said the mistake was not fatal as the adjudicator also enquired into the situation in Bangladesh.
Though the claimant was granted leave to judicial review on other grounds, Shaffer said: “What this case makes clear is that there are credible and ongoing concerns about the standard of decision making of the Torture Claims Appeal Board.”
He suggested the appeal board follow the examples of most jurisdictions by publishing its decisions, which would allow the public to evaluate the quality of the decisions for themselves, arguing that increased transparency would help to improve the system.
He said: “These are decisions of overwhelming importance both to the individuals in question – being some of the most vulnerable of global citizens – and to the public too. The Board cannot continue to hide its decision-making from public scrutiny.”
Additional reporting by Karen Cheung.