TNAG-2324-FCO40-3368-Hong-Kong-Bill-of-Rights-Vietnamese-boat-people-1991 — Page 133

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167077

MDHIAN 8180

COMMITTEE STAGE AND THIRD READING ON 1 MAY. THIS WILL AVOID THE PRESENTATIONAL DIFFICULTIES OF SECOND AND THIRD READINGS OF BOTH

THESE BILLS AT THE SAME LEGCO SITTING.

5. SLIPPING GAZETTAL TO 12 APRIL HOPEFULLY EASES THE DIFFICULTY (WHICH WE OF COURSE RECOGNISE) WITH THE ICCPR HEARINGS A LITTLE. WE WOULD, SUBJECT TO YOUR VIEWS, BE NEVERTHELESS PREPARED TO REFER TO THE FORTHCOMING PUBLICATION OF THIS BILL AT THE NEW YORK HEARINGS IF YOU FEEL THIS TO BE MORE PRUDENT. (IT IS OF COURSE CONCEIVABLE THAT NEWS OF THE INTENDED AMENDMENTS MAY IN ANY EVENT HAVE LEAKED BY THAT TIME.)

CONTENT

6. WE HAVE CONSIDERED SECTIONS 2(1) AND 2(1A) IN THE LIGHT OF YOUR CONCERN: WE NEED TO MINIMISE AS FAR AS POSSIBLE THE RISK OF A JUDICIAL REVIEW BASED ON THE ARGUMENT THAT THE DIRECTOR OF IMMIGRATION IS EXPECTED TO HAVE GIVEN INDIVIDUAL CONSIDERATION TO THE MERITS OF DETAINING EACH OF OUR 43000 CURRENT DETAINEES, OR OF THOSE ARRIVING IN FUTURE. THIS WAS EXACTLY THE POINT UPON WHICH SEARS J. FOUND FOR THE 111, BUT WE ARE NOT/NOT CONFIDENT THAT IN THIS REGARD A COURT WOULD FIND THE SITUATION OF THE 111 TO HAVE BEEN WHOLLY OR SUFFICIENTLY EXCEPTIONAL. WE BELIEVE WE CAN HOWEVER MAKE THESE 2 SUBSECTIONS LOOK PRESENTATIONALLY BETTER BY THE FOLLOWING AMENDMENTS. IN SECTION 2(1) OF THE BILL, WE PROPOSE TO REPLACE BOTH 'SHALL' WITH

'MAY 1 AND TO INSERT AFTER 'DETAINED' THE WORDS 'UNDER THE AUTHORITY OF THE DIRECTOR'.

,

7. WE HAVE LEFT 'SHALL IN SUBSECTION (1A) SINCE A PERSON MAY BE

RELEASED FROM DETENTION UPON BEING GRANTED PERMISSION TO REMAIN IN HONG KONG EITHER AS A REFUGEE OR IN SOME OTHER CAPACITY, OR UPON BEING GIVEN LEAVE OF ABSENCE UNDER THE DETENTION CENTRE

RULES.

8. THESE CHANGES WOULD SEEM ALSO TO MEET YOUR CONCERN IN PARA 6 OF TUR.

9. WE MAY NOT HAVE EXPLAINED OUR PURPOSE IN AMENDING SECTION

13F (8) WITH SUFFICIENT CLARITY. WE ARE NOT/NOT OF COURSE SEEKING

TO AVOID JUDICIAL REVIEW OF THE DECISION-MAKING PROCESS OF THE

RSRB ALTOGETHER. OUR PURPOSE IS TO CLARIFY THAT IT IS NOT/NOT

ONLY THE RSRB'S DECISION ON REFUGEE STATUS THAT SHOULD NOT BE JUDICIALLY REVIEWABLE, BUT OTHER DECISIONS BY THE RSRB AS WELL: E.G. DECISIONS ON WHETHER OR NOT TO INTERVIEW AN APPLICANT, OR WHETHER TO GRANT MORE TIME FOR THE SUBMISSION OF AN APPLICATION

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