CONFIDENTIAL
FM HONG KONG
TO DESKBY 25100OZ FCO
TELNO 920
OF 250915Z MARCH 91
CONFIDENTIAL
HKC 241/4
27 MH. 1991
31
32
34)
017473
MDHIAN 9399
huzals.
OUR TELNO 902 AND YOUR TELNO 563 : VIETNAMESE MIGRANTS : AMENDMENTS TO THE IMMIGRATION ORDINANCE
1. WE DO NOT BELIEVE THAT SUBSECTION (1A) IS INCONSISTENT WITH SUBSECTION (1B). DETENTION WOULD ONLY BE LAWFUL UNDER SUBSECTION (1A) FOR THE PURPOSES SPECIFIED, AND, IN DETERMINING WHETHER DETENTION IN ANY CASE IS INDEED FOR ONE OF THOSE PURPOSES, A COURT MUST HAVE REGARD TO THE MATTERS SET OUT IN SUBSECTION (1B). WE ACCEPT HOWEVER THAT THERE SHOULD BE LITTLE DIFFERENCE IN PRACTICE IF ''SHALL'' IS CHANGED TO
**MAY
IN SUBSECTION (1A)
AND IN THOSE CIRCUMSTANCES WE ARE PREPARED TO MAKE THAT CHANGE.
2. AS REGARDS YOUR PARAGRAPH 4, ON AN AVERAGE DAY, THERE WILL BE DOZENS OF ROUTINE TRANSFERS BETWEEN THE RECEPTION CENTRE AND THE DETENTION CENTRES, AND BETWEEN THE LATTER AND THE DEPARTURE CENTRE. IN ADDITION, OVER THE NEXT 3 MONTHS MANY THOUSANDS OF PERSONS WILL BE TRANSFERRED TO TAI A CHAU, AND BETWEEN THE OTHER CENTRES SO THAT WE CAN CLOSE SOME OF THEM DOWN. IF SUCH ROUTINE TRANSFERS WERE APPEALABLE, THE POTENTIAL WORKLOAD WOULD BE ENORMOUS. IT IS IN PRACTICE ONLY IN THE CASE OF TRANSFERS ON
MANAGEMENT GROUNDS THAT THE QUESTION OF VIOLATION OF RIGHTS ARISES. IF, IN ANY OTHER CASE, GOOD CAUSE WAS SHOWN, THE DECISION WOULD BE REVIEWED ADMINISTRATIVELY.
3. AS REGARDS YOUR PARAGRAPH 5, IT IS NOT OUR INTENTION TO PRECLUDE JUDICIAL REVIEW ENTIRELY. WHAT THE AMENDMENT SEEKS TO
MAKE CLEAR IS THAT ALL DECISIONS OF THE RSRB WITHIN ITS JURISDICTION ARE IMMUNE FROM REVIEW, NOT MERELY THE FINAL DETERMINATION OF WHETHER OR NOT A PERSON IS A REFUGEE. JUDICIAL REVIEW WOULD, HOWEVER, STILL LIE EITHER IF NO DECISION IS IN FACT TAKEN, IF THE RSRB ACTS OUTSIDE ITS JURISDICTION, OR IF THE DECISION-MAKING PROCESS IS FLAWED IN A MATERIAL PARTICULAR. IN THESE CIRCUMSTANCES, AND HAVING REGARD ALSO TO OUR ACCEPTANCE OF THE UNHCR MANDATE IN ANY PARTICULAR CASE, WE DO NOT THINK THAT THIS WILL RESULT IN AN INCREASE RISK OF A GENUINE REFUGEE BEING
RETURNED TO VIETNAM.