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requested permission to remain (eg the 111 in the Pham Van Ngo case). This makes no sense, since a decision whether to grant or refuse permission to remain is not required at all in such cases. Furthermore, even in the normal case, where such a decision is required, this provision seems to remove any discretion to release earlier. It would also seem to override the existing discretion to grant (temporary) leave of absence under the detention centre rules (referred to in para 7 of telno 806). I wonder whether such an effect is really intended by HKG. All in all, this section seems to be a particularly bad piece of drafting.
7. The effect of sub-sections (1B) and (1C), when read together with (1A) is unclear. However, if "shall" in (1A) were to revert to "may", the addition of (1B) and (1C) would be unobjectionable, and (1B) might even, possibly, be an im
Improvement on the present law.
8. Addition of new sub-section (5)- (7) (power to transfer)
Sub-section (5) declares that "for the avoidance of doubt", those detained under sub-section (1) may be transferred to "any other place or places specified by the Director of Immigration". Sub-section 6 provides that such a transfer may not be carried out
the grounds that it
is necessary in the interests of good order or good management without a Director's certificate. This appears to mean that transfers made for any other reason do not require a certificate. These sub-sections are to be given retrospective effect, from 16 June 1988, except that they will not affect any legal proceedings commenced before [
] 1991. (HK
have not told us what date they propose to insert). A new section 13DA provides for appeals against transfers to an officer appointed by the Secretary for Security, whose decision shall be final. However, this right only applies where the Director has certified that the transfer is necessary in the interests of order, etc. As drafted, there would appear to be no right of appeal at all where the transfer has been carried out on other grounds. This may, or may not, be a drafting error.
Comment
HK have not given us any information about their practice on transfers or the use to which they intend to put these powers. I assume that it would necessarily be a transfer from one closed centre to another, so on the face of it no further deprivation of liberty would be involved. However, if the regime in centres for 'troublemakers' were punitive in nature, an issue could arise under Article 10 ICCPR. Transfer might also involve an interference with family life. The absence of any independent review of the grounds for a particular transfer might therefore give us cause for
concern.
CODE 18-77
JB2AAC
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