}
CONFIDENTIAL
HKC241/4
CONFIDENTIAL
FM FCO
TO DESKBY 13010OZ HONG KONG
TELNO 475
OF 121715Z MARCH 91
77 MAR 1981
22
155310
MDHOAN 9662
for PM 13/3
TOP COPY Q DIST?
YOUR TELNO 748: VIETNAMESE MIGRANTS: AMENDMENTS TO THE IMMIGRATION ORDINANCE
WE HAVE NOW STUDIED THE PROPOSED AMENDMENTS TO THE IMMIGRATION ORDINANCE (FAX REFERRED TO IN TUR REACHED US ON 11 MARCH).
1.
2 -
WE SHALL NEED TO SUBMIT TO MINISTERS SINCE, IN THE VIEW OF OUR LEGAL ADVISERS, THE AMENDMENTS MAKE IT MORE LIKELY THAT THE LEGISLATION COULD BE FOUND IN BREACH OF THE ICCPR. IN THE TIME AVAILABLE, WE CANNOT BE SURE THAT MINISTERS WILL BE ABLE TO CONSIDER THIS BEFORE THE WEEKEND.
IN THE MEANTIME, IT WOULD BE HELPFUL TO HAVE YOUR COMMENTS ON THE FOLLOWING ASPECTS OF YOUR AMENDMENTS:
3.
(A) SECTION 2 (1A): GRATEFUL TO KNOW THE LEGAL EFFECT INTENDED BY THE DELETION OF THE WORDS ''AS A REFUGEE''
M
(B) SECTION 2(1)(A) THE INTRODUCTION OF THE OPINION OF AN IMMIGRATION OFFICER MAKES THE PROCEDURE MORE SUBJECTIVE AND THEREFORE MORE DIFFICULT TO DEFEND. WHAT IS THE REASON FOR THIS CHANGE? IS THERE A REAL DANGER OF INDIVIDUALS DISPUTING THEIR
VIETNAM RESIDENT STATUS?
A
(C) SECTION 2(1) THE USE OF ''SHALL IMMEDIATELY AFTER SUBSECTION (C) (REPLACING ''MAY'') MAKES THE POWER TO DETAIN INTO AN OBLIGATION AND THEREFORE LESS DEFENSIBLE. WE ASSUME YOU HAVE MADE THIS CHANGE TO BLOCK JUDICIAL REVIEW OF EXERCISE OF DISCRETION BY IMMIGRATION OFFICERS. IS THIS CHANGE ESSENTIAL? THE MORE SWEEPING THE LEGAL POWER THE MORE DIFFICULTIES WE WILL HAVE WITH ARTICLE 9. WHY FOR EXAMPLE SHOULD MANDATORY DETENTION APPLY TO CHILDREN. WE ALSO WONDER WHETHER THE USE OF ''SHALL'' HERE (IE MAKING DETENTION MANDATORY) RATHER NEGATES THE EFFECT OF SUBSECTION (1B): IF IT IS MANDATORY TO DETAIN, IT IS BY DEFINITION LAWFUL SO THE CAVEATS ABOUT LENGTH OF DETENTION BECOME REDUNDANT.
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