apply. It is also possible to argue that the decision whether to free upon recognisance or detain is ancillary to the decision in respect of entry into and stay in Hong Kong. If that is a correct proposition then a challenge based upon the BORO in respect of S. 13D detention orders is not excluded by
S.11 of the BORO.
53. It should be noted that Hong Kong is obliged under the CPA to provide the same treatment for all Vietnamese arriving irregularly from Vietnam. Paragraph 5 under the heading "New
arrivals" states
"(a) Temporary refuge will be given to all asylum
seekers, who will be treated identically regardless
of their mode of arrival until the status
determination process is completed.'
"
54. The facts show that all S.13D detainees are treated with
humanity and with respect for the inherent dignity of the human person and that there is no torture or cruel, inhuman or degrading treatment or punishment (Articles 3 and 6 of the BORO reflecting Articles 7 and 10 of the ICCPR).
55. The facts show that there is no arrest and that there is
a voluntary entering into S.13D detention. It is clear from the foregoing paragraphs that the detention is in accordance with Hong Kong law and that Mr PHAM or anyone else detained under S.13D is able to take proceedings to test its legality. It is certainly not arbitrary inasmuch as it is prescribed by
law and the power of detention is clearly defined in respect
of the class of persons affected (Article 5 of the BORO
reflecting Article 9 of the ICCPR).
56. So far as Article 8 of the BORO reflecting the ICCPR Article 12 is concerned, Vietnamese migrants and asylum seekers are not lawfully in Hong Kong until adjudicated to be refugees, and, by S.13D(2), they have liberty to leave Hong
Arb.Det
No comments yet.
Private notes are available after approval.