TNAG-2324-FCO40-3368-Hong-Kong-Bill-of-Rights-Vietnamese-boat-people-1991 — Page 50

CODE 18-77

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HKC241/4

CONFIDENTIAL

Reference

Mr Bruce SEAD

Mr Walwyn UND.

From: Ms J Barrett

Ms Major HKD

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P48/4.

Assistant Legal Adviser K 166 270 3381 Date: 3 April 1991

(44

VIETNAMESE MIGRANTS: AMENDMENTS TO THE IMMIGRATION ORDINANCE

1.

As promised in yesterday's telegram to HK I telephoned

The main points Clinton Leeks and Ian Wingfield this morning.

as follows. arising out of our conversation are

2. Powers of detention

The purpose of the amendments to Section 13D(i) is to make legal challenge to detention more difficult, but without doing so in a way which makes the power any less acceptable in human rights terms. They are designed to remedy two particular deficiencies in the present law:

or

(i) The existing powers of detention do not clearly cover illegal entrants who do not request permission to remain, say they do not want such permission, or refuse to co-operate with screening procedures, but object to being returned to Vietnam. The amendment makes clear that such persons may be detained, and in Mr Wingfield's view (which I accept), the new

Clearly sub-sections (1A) and (1B) would apply in all cases. this will give HKG better protection than the existing law.

(ii) Since the present law is unspecific about the permissible period of detention, HKG are concerned that challenges to the length of detention are now likely to be brought on the basis

A court might of Justice Seers comments in the 111 case. consider the reasonableness of the length of detention in an individual case without giving any weight to the practical

The difficulties involved in dealing with such large numbers. purpose of sub-section (1B) is to oblige a court to take into account the practical problems on a broader scale, and thereby to protect HKG against the sort of approach adopted by Seers J.

3. I am now persuaded by Mr Wingfield's view that these amendments would make it easier for HKG to defend the length

of detention in the vast majority of cases (i.e.the named typical

cases).

Both Mr Wingfield and Mr Leeks accept that the amendments will not make the powers of detention watertight for an indefinite period. They said that though it might, theoretically, be possible to draft the law so as to make detention mandatory in all cases for an indefinite period regardless of whether HKG are using best endeavours to screen Even it if were so and remove, they would not wish to do so.

CONFIDENTIAL