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CONFIDENTIAL
THE BILL RIGHTS AND VBP
(Draft reply to Governor's Note of 10.3.90.)
1.
The enactment of the Bill of Rights (BOR) is not likely to upset the existing policy of detaining VBP's pending a decision to permit them to remain in Hong Kong as refugees and thereafter of detaining those refused such permission, pending repatriation but it may give rise to other challenges in the courts.
LONG TERM DETENTION
2.
The BOR will enable VBP's to challenge their
detention on the grounds that their detention is
'arbitrary' or is not otherwise in accordance with such procedures as are established by law'. VBP are not detained
'arbitrarily'. Their detention is governed by the provisions of the Immigration Ordinance and regulations made thereunder. To the extent that the Immigration Ordinance and the relevant regulations do not contravene any of the other rights and freedoms recognized in the BOR, their detention will be lawful.
3.
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Lawful detention may however become unla ful with the effluxion of time. Under the BOR a court would be able to consider whether the grounds which justifie. indeterminate detention in the first instance have changed. In practical terms this would mean a court being satisfied in relation to those detained before screening that in all circumstances the length of their detention was unreasonable and in relation to those screened out that there was no realistic prospect of repatriating them in the foreseeable future. If this was the case then continued
detention could amount to inhuman treatment under the BOR. A court could also properly take into account the fact that
CONFIDENTIAL