TNAG-2324-FCO40-3368-Hong-Kong-Bill-of-Rights-Vietnamese-boat-people-1991 — Page 46

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MDHIAN 0668

PROCEDURES THEMSELVES WILL INEVITABLY REMAIN OPEN TO JUDICIAL REVIEW) AGAINST THE SORT OF JUDGEMENT WE FACED LAST NOVEMBER WHEN, IN THE CASE OF BOAT 101, A JUDGE SPECIFICALLY REFUSED TO TAKE ACCOUNT OF THE RESOURCE AND OTHER PRACTICAL PROBLEMS WE FACED IN REACHING HIS JUDGEMENT AS TO THE LEGALITY OF DETENTION.

5. AGAINST THIS BACKGROUND, OUR COMMENTS ON THE THREE OPTIONS LISTED IN PARA 3 OF TUR ARE AS FOLLOWS:

DOING NOTHING

(A) IF WE DO NOTHING, WE RISK A SUCCESSFUL CHALLENGE TO OUR POWER TO DETAIN PENDING SCREENING (THIS WAS COMMENTED ON BY SEARS AND HAS ARISEN IN THE JUDICIAL REVIEW OF TRANSFER, WHICH RECOMMENCES ON 8 APRIL), AND DOES TO OUR POWER TO DETAIN PENDING REMOVAL (THIS HAS ARISEN IN THE JUDICIAL REVIEW OF SCREENING, ALTHOUGH MORTIMER REFUSED TO MAKE A RULING ON THE POINT). WE ARE INDEED SURPRISED THAT WE HAVE NOT FACED A CHALLENGE BASED ON SEARS' RULING SO FAR. BUT WE KNOW THAT HELTON'S COMMITTEE ARE PREPARING SOMETHING ON THESE LINES.

(B) TUR ASKS WHY WE HAVE NOT FACED SUCH A CHALLENGE SINCE 1982, WHEN DETENTION WAS FIRST INTRODUCED. FOUR REASONS:

(I) THE FAR HIGHER PROFILE OUR POLICY HAS NOW, BOTH LOCALLY AND INTERNATIONALLY.

(II) THE NUMBER INVOLVED NOW AS IN THE MID-1980'S.

G

TEN TIMES AS MANY PEOPLE ARE DETAINED

(III) THE GREATER ACTIVITY OF PRO-VIETNAMESE LOBBY GROUPS HERE

AND OVERSEAS.

(IV) THE FACT THAT PRE-1988 DETENTION WAS PENDING RESETTLEMENT RATHER THAN REPATRIATION. IT IS THE LATTER THAT CAUSES SO MUCH ACTIVITY BY THOSE OPPOSED TO OUR POLICY AS A WHOLE.

(C) YOU ASK WHAT THE CONSEQUENCES OF A SUCCESSFUL LEGAL CHALLENGE WOULD BE. THIS DEPENDS SOMEWHAT ON THE EXACT NATURE OF THE CHALLENGES, BUT WE ASSUME IT WOULD BE ON THE LINES THAT:

(I) OVER (SAY) 12 MONTHS' DETENTION PENDING SCREENING WAS

UNLAWFUL, OR:

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