TNAG-2324-FCO40-3368-Hong-Kong-Bill-of-Rights-Vietnamese-boat-people-1991 — Page 87

CONFIDENTIAL

FM HONG KONG

TO DESKBY 25100OZ FCO

TELNO 920

OF 250915Z MARCH 91

CONFIDENTIAL

HKC 241/4

27 MH. 1991

31

32

34)

017473

MDHIAN 9399

huzals.

OUR TELNO 902 AND YOUR TELNO 563 : VIETNAMESE MIGRANTS : AMENDMENTS TO THE IMMIGRATION ORDINANCE

1. WE DO NOT BELIEVE THAT SUBSECTION (1A) IS INCONSISTENT WITH SUBSECTION (1B). DETENTION WOULD ONLY BE LAWFUL UNDER SUBSECTION (1A) FOR THE PURPOSES SPECIFIED, AND, IN DETERMINING WHETHER DETENTION IN ANY CASE IS INDEED FOR ONE OF THOSE PURPOSES, A COURT MUST HAVE REGARD TO THE MATTERS SET OUT IN SUBSECTION (1B). WE ACCEPT HOWEVER THAT THERE SHOULD BE LITTLE DIFFERENCE IN PRACTICE IF ''SHALL'' IS CHANGED TO

**MAY

IN SUBSECTION (1A)

AND IN THOSE CIRCUMSTANCES WE ARE PREPARED TO MAKE THAT CHANGE.

2. AS REGARDS YOUR PARAGRAPH 4, ON AN AVERAGE DAY, THERE WILL BE DOZENS OF ROUTINE TRANSFERS BETWEEN THE RECEPTION CENTRE AND THE DETENTION CENTRES, AND BETWEEN THE LATTER AND THE DEPARTURE CENTRE. IN ADDITION, OVER THE NEXT 3 MONTHS MANY THOUSANDS OF PERSONS WILL BE TRANSFERRED TO TAI A CHAU, AND BETWEEN THE OTHER CENTRES SO THAT WE CAN CLOSE SOME OF THEM DOWN. IF SUCH ROUTINE TRANSFERS WERE APPEALABLE, THE POTENTIAL WORKLOAD WOULD BE ENORMOUS. IT IS IN PRACTICE ONLY IN THE CASE OF TRANSFERS ON

MANAGEMENT GROUNDS THAT THE QUESTION OF VIOLATION OF RIGHTS ARISES. IF, IN ANY OTHER CASE, GOOD CAUSE WAS SHOWN, THE DECISION WOULD BE REVIEWED ADMINISTRATIVELY.

3. AS REGARDS YOUR PARAGRAPH 5, IT IS NOT OUR INTENTION TO PRECLUDE JUDICIAL REVIEW ENTIRELY. WHAT THE AMENDMENT SEEKS TO

MAKE CLEAR IS THAT ALL DECISIONS OF THE RSRB WITHIN ITS JURISDICTION ARE IMMUNE FROM REVIEW, NOT MERELY THE FINAL DETERMINATION OF WHETHER OR NOT A PERSON IS A REFUGEE. JUDICIAL REVIEW WOULD, HOWEVER, STILL LIE EITHER IF NO DECISION IS IN FACT TAKEN, IF THE RSRB ACTS OUTSIDE ITS JURISDICTION, OR IF THE DECISION-MAKING PROCESS IS FLAWED IN A MATERIAL PARTICULAR. IN THESE CIRCUMSTANCES, AND HAVING REGARD ALSO TO OUR ACCEPTANCE OF THE UNHCR MANDATE IN ANY PARTICULAR CASE, WE DO NOT THINK THAT THIS WILL RESULT IN AN INCREASE RISK OF A GENUINE REFUGEE BEING

RETURNED TO VIETNAM.