TNAG-2324-FCO40-3368-Hong-Kong-Bill-of-Rights-Vietnamese-boat-people-1991 — Page 92

CONFIDENTIAL

FM FCO

TO DESKBY 23010OZ HONG KONG

TELNO 563

OF 22190OZ MARCH 91

30

CONFIDENTIAL

HKC24124

31

MAR 1991

X

32

015426

MDHOAN 0410

attached Тоны Telno

902

29

OUR TELNO 539 AND YOUR TELNO 902: VIETNAMESE MIGRANTS: AMENDMENTS TO IMMIGRATION ORDINANCE

1.

THANK YOU THE HELPFUL EXPLANATION IN SECOND TUR AND FOR THE FAXED BACKGROUND MATERIAL.

2.

WE WERE GRATEFUL FOR THE CLARIFICATION REQUESTED IN PARA 3 OF FIRST TUR, WHICH MEETS OUR LEGAL ADVISERS' CONCERNS.

3.

HOWEVER OUR LEGAL ADVISERS ARE STILL UNCONVINCED BY THE EXPLANATION IN PARA 4 OF SECOND TUR AND IN THE FAXED MINUTE FROM ALLCOCK TO LEEKS OF 22 MARCH OF THE EFFECT OF SUBSECTION (1A) OF SECTION 13D(I) AS PRESENTLY DRAFTED. THEIR ASSESSMENT IS THAT ACCORDING TO THE MOST NATURAL READING OF THIS PROVISION, IT WILL BE MANDATORY TO KEEP A DETAINEE IN DETENTION THROUGHOUT THE WHOLE PERIOD BETWEEN ARRIVAL AND THE DECISION WHETHER TO GRANT PERMISSION TO REMAIN, OR REMOVAL, AS THE CASE MAY BE. THIS IS INCONSISTENT WITH SUB-SECTION (1B), WHICH IMPLIES THAT DETENTION WHICH IS INITIALLY LAWFUL MAY LATER BECOME UNLAWFUL IF THE PERIOD OF DETENTION EXCEEDS THAT WHICH IS REASONABLE. SINCE THE TWO PROVISIONS ARE AT ODDS, THE EFFECT WHICH A COURT MIGHT GIVE TO THEM IS UNCERTAIN. IF YOU WERE PREPARED TO CHANGE 'SHALL' IN SUB-SECTION (1A) TO 'MAY' LEGAL ADVISERS CONSIDER THAT THIS WOULD ENABLE THE COURTS TO GIVE THE EFFECT WHICH YOU INTEND TO SUB-SECTION (1B). THEY WOULD THEN BE ABLE TO AGREE WITH YOUR VIEW THAT THE OVERALL EFFECT OF THESE TWO SUB-SECTIONS OF SECTION 13D(I) WOULD BE AN IMPROVEMENT ON THE EXISTING LAW.

4.

LEGAL ADVISERS ALSO REMAIN CONCERNED ABOUT THE ABSENCE OF ANY INDEPENDENT REVIEW OF A DECISION TO TRANSFER, AS EXPLAINED IN PARA 8 OF MS BARRETT'S MINUTE OF 18 MARCH 1991. THEIR CONCERN IS ALL THE GREATER AS A RESULT OF THE EXPLANATION IN PARA 3 OF ALLCOCK'S MINUTE, WHICH CONFIRMS THAT THERE WILL BE NO RIGHT OF APPEAL OF ANY KIND IN RESPECT OF TRANSFER OTHERWISE THAN IN THE INTERESTS OF ORDER OR GOOD MANAGEMENT. THE PROBLEM IS NOT THE POWER TO TRANSFER ITSELF, BUT THE ABSENCE OF REVIEW IN CASES WHERE THE TRANSFEREE CLAIMS THAT THE TRANSFER VIOLATES HIS RIGHTS UNDER THE ICCPR. IN SUCH

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PAGE CONFIDENTIAL