HKD 243/8
243/8
-
Miss State
777
+ PA
N
9/9
N819
Mr Footman,
HKD
telegram sent
anys
CC: Mr Millett, UND
Mr Whomersley, Legal
Advisers
VIETNAMESE BOAT PEOPLE IN HONG KONG
768
1. Please refer to your minute of 8 September in which you mention clause 152 of the UNHCR Handbook. I assume that this was a typographical error and should read clause 192.
2.
We should bear in mind that the UNHCR handbook is a guide for use by States in carrying our their obligations under the Refugees /important Convention. It is not legally binding. It is also/to note that
the Refugees Convention has not been extended to Hong Kong.
3. I assume, however, that as a matter of policy you would wish to act, as far as possible, consistently with the terms of paragraph 192 of the Handbook. My own view is that Hong Kong's proposals do in fact meet the necessary conditions. The Handbook only requires that there should be a possibility for "reconsider- ation" of the decision and specifically provides for this to be before an administrative authority. The right to have the Governor review decisions would seem to meet the requirements set out in the Handbook. Nevertheless, it would be wise to ensure that the Hong Kong legislation is clearly drafted so that the Governor's powers are set out explicitly, including his power to reconsider the decision. The more "formal" looking the provision in the Hong Kong legislation the better.
4. Turning to paragraph 3 (b) of your minute (would the situation change if judicial review was not available?) my advice remains the same. The important point is that the Governor would be able to reconsider the decision. Moreover, judicial review is a mechanism for reviewing the manner in which a decision has been taken or the basic legality of that decision; it is not a mechanism for the reconsideration of the substance of a decision
(for example, like an appeal).
5. The only other international agreement which may be relevant to this problem is the UN Covenant on Civil and Political Rights, Article 13 of which sets out a minimum standard to be applied by States party when expelling aliens. However, even if Article 13 is relevant (which it probably is not), our far-sighted predecessors made a reservation in respect of the application of Article 13 in Hong Kong, so that in practice there should be no difficulty in this respect. I attach a copy of Article 13 and of the UK reservation.
Lemand
8 September 1988
D M Edwards
Legal Counsellor