recemey
CONFIDENTIAL
By
wed might
20
리
142561
MDHIAN 7113
CONFIDENTIAL
FM HONG KONG
TO IMMEDIATE FCO
TELNO 748
OF 08110OZ MARCH 91
[HKC 241/4
RECEIVA
Fax?
22 MAR 1991
fa fuis/3
fou is 13
20
MY TELNO 654 AND YOUR TELNO 445 : VIETNAMESE MIGRANTS :
AMENDMENTS TO THE IMMIGRATION ORDINANCE
PW
1. WE ARE FAXING TO HKD AND SEAD A DRAFT AMENDMENT BILL TO THE IMMIGRATION ORDINANCE. THIS WILL INTRODUCE A NUMBER OF AMENDMENTS CONSEQUENT ON RECENT LEGAL CHALLENGES TO HKG POLICIES ON VIETNAMESE MIGRANTS. THE MAIN PROVISIONS PROPOSED ARE :
(A) A NEW SECTION 13D(1) CONFIRMS POWERS ALREADY PRESENT AND ADDS A PROVISION TO REQUIRE DETENTION OF ALL FORMER RESIDENTS OF VIETNAM WHO ARRIVE WITHOUT VALID DOCUMENTATION, WHETHER OR NOT THEY ARE CLAIMING ASYLUM AND REFUGEE STATUS. A MIGRANT TO WHOM SECTION 13D(1) APPLIES IS STILL ENTITLED TO LEAVE HONG KONG UNDER SECTION 13D(2) BUT IF HE DOES NOT HAVE THE MEANS TO DO SO HE CANNOT EVADE DETENTION MERELY BY EXPRESSING A WISH TO LEAVE. A NEW SUB-SECTION WILL PROVIDE THAT DETENTION IS NOT/NOT UNLAWFUL BY REASON OF THE PERIOD OF DETENTION PROVIDED THAT THE PERIOD IS REASONABLE IN ALL THE CIRCUMSTANCES OF THAT DETENTION. DETENTION WILL ALSO NOT/NOT BE UNLAWFUL SIMPLY BECAUSE STATUS DETERMINATION HAS NOT/NOT TAKEN PLACE IN STRICT CHRONOLOGICAL ORDER OF ARRIVAL.
(B) FOR THE AVOIDANCE OF DOUBT, A NEW (RETROSPECTIVE) SUB-SECTION WILL BE INTRODUCED PROVIDING FOR DETAINEES TO BE MOVED BETWEEN DETENTION CENTRES, TOGETHER WITH A SUBSECTION VALIDATING THE PAST DELEGATION OF AUTHORITY TO TRANSFER. AN ADDITIONAL SUB-SECTION WILL ALLOW FOR THE INTRODUCTION OF APPEALS AGAINST TRANSFER FROM ONE DETENTION CENTRE TO ANOTHER, IN CASES WHERE THE DIRECTOR OF IMMIGRATION HAS CERTIFIED THAT THIS TRANSFER IS IN THE INTERESTS OF GOOD ORDER AND MANAGEMENT OF THE CENTRES.
(C) FURTHER MINOR AMENDMENTS WILL MAKE CLEAR THAT ALL DECISIONS BY THE RSRB, AND NOT JUST ITS ULTIMATE DECISION, ARE EXEMPT FROM REVIEW AND APPEAL, AND THAT DETAINEES MAY BE ABSENT FROM DETENTION CENTRES WHILST REMAINING IN LEGAL CUSTODY. SECTION 53(8) WILL BE AMENDED TO REFLECT THAT THERE WILL BE NO GENERAL PROVISION FOR APPEAL TO THE GOVERNOR-IN-COUNCIL AGAINST THE POWER TO TRANSFER, AND THAT IN CASES WHERE TRANSFER IS FOR THE PURPOSE
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