CONFIDENTIAL
16 15
MDHOAN 9871
18 MARCH FOR THE EXCO MEETING ON 26 MARCH. WE REALISE THIS WILL GIVE EXCO LESS TIME TO CONSIDER THE MEMORANDUM BUT THEY CANNOT CONSIDER IT UNTIL OUR MINISTERS HAVE HAD TIME TO DO SO.
I T
4. AT OFFICIAL LEVEL, THE POINT WHICH CONCERNS US MOST IN THE AMENDMENTS IS THE REPLACEMENT OF ''MAY'' BY ''SHALL'' IN SECTION 2(1) (PARAGRAPH 3(C) OF MY TELNO 475 REFERS). THE MANDATORY NATURE OF THE AMENDED LEGISLATION MAKES IT GLARINGLY OBVIOUS THAT NO CONSIDERATION WILL BE GIVEN AT ALL TO INDIVIDUAL CASES: THIS IS EXTREMELY DIFFICULT TO DEFEND IN HUMAN RIGHTS TERMS. THE USE OF ''MAY LEAVES THE POSSIBILITY THAT INDIVIDUAL CIRCUMSTANCES CAN BE TAKEN INTO ACCOUNT EVEN IF IN PRACTICE THERE ARE DAYS WHEN IT IS IMPRACTICABLE FOR THE DIRECTOR OF IMMIGRATION TO CONSIDER EACH INDIVIDUAL CASE. WE ASSUME THAT IN THE MAJORITY OF CASES JUDICIAL REVIEW OF THE EXERCISE OF
DISCRETION BY IMMIGRATION OFFICERS WOULD FIND IN YOUR FAVOUR. THE CASE OF THE 111 WAS EXCEPTIONAL. WE HAVE ALSO POINTED OUT THE APPARENT CONTRADICTION BETWEEN THE MANDATORY LANGUAGE HERE
(WHICH WE TAKE TO REQUIRE DETENTION THROUGHOUT THE PERIOD
NECESSARY TO REACH A DECISION ON PERMISSION TO REMAIN OR TO CARRY OUT REMOVAL) AND THE EFFECT OF SUBSECTION (1B), WHICH WAS NOT ADEQUATELY EXPLAINED IN PARAGRAPH 1(C) OF YOUR TELNO 786. IN THE VIEW OF OUR LEGAL ADVISERS IF 'SHALL' IS CHANGED BACK TO ''MAY'' IN ALL PLACES WHERE IT MAKES DETENTION MANDATORY, SECTION 13 D (1B) AND (1C) OF THE AMENDED ORDINANCE COULD BE
MORE CREDIBLY DEFENDED.
5.
IN THE CIRCUMSTANCES, WE SHOULD FIND IT CONSIDERABLY EASIER TO RECOMMEND ACCEPTANCE OF YOUR AMENDMENTS TO MINISTERS IF THIS PARTICULAR AMENDMENT COULD BE DELETED. WE ALSO CONSIDER THAT WE SHOULD HAVE A CONSIDERABLY BETTER CHANCE OF DEFENDING THE AMENDMENTS TO THE HUMAN RIGHTS COMMITTEE.
6.
THERE ARE TWO OTHER POINTS WHICH CONCERN US. ON PARA 1 (D) OF YOUR TELNO 786, IN VIEW OF YOUR PROPOSED DELETION OF THE WORDS
''AS A REFUGEE' FROM SECTION 13 D(1), WE STILL DO NOT UNDERSTAND WHY THE ADDITION OF THE WORDS HAS REQUESTED PERMISSION TO REMAIN IN HONG
NECESSARY.
7.
WHETHER OR NOT HE KONG'' ARE
PROPOSED AMENDMENT TO SECTION 13 F(8): THIS APPEARS TO US TO DESIGNED TO COVER CASES SUCH AS THE NINE. WE ASSUME THAT THE RESULT OF SUCH AN AMENDMENT WOULD BE THAT WE IN EXCEPTIONAL CASES WHERE THE RSRB HAD BASED ITS DECISION ON A
BE
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