39.
The qualifying conditions for use of the S.13D detention
power were:-
(1)
Mr PHAM and his family are residents or former residents
of Vietnam;
(2)
they arrived in Hong Kong; and
40.
(3)
they do not hold a travel document with an unexpired visa issued by or on behalf of the Director of Immigration in
Hong Kong.
These conditions were met by Mr PHAM and his family.
41. The words "may be detained" were clarified in a case challenging the legality of this same power of detention. case is In re Tran Quoc Cuong and Khue The Loc, 1991 2 HKLR
312.
The
42. At p.330B of Mr Justice Jones' judgment, the submission of the applicants for judicial review is recorded as follows:-
"Miss Li attacked the initial detention of the applicants at Green Island Reception Centre on the grounds that the
Director had failed to exercise his discretion under
S.13D(j) which uses the word "may" instead of "shall" "be
detained" so that detention on arrival should not be
automatic for the detention is only required to secure
the attendance of a person for a decision to be made on refugee status. Accordingly, she argued that there should have been an investigation into the individual
circumstances of the applicants before a decision to
detain was made instead of making the orders for
automatic detention. She further contended that there
was an alternative course available instead of detention
in a detention centre by imposing a condition of stay,
Arb.Det
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