Provisional Legislative Council

PLC Paper No. CB(2) 1209
(These minutes have been
seen by the Administration)

Ref : CB2/BC/5/97


Bills Committee on
Immigration (Amendment) Bill 1998

Minutes of the meeting held on Tuesday, 10 February 1998 at 4:30 pm in the Conference Room B of the Legislative Council Building


Members present :

Hon Howard YOUNG, JP(Chairman)
Hon LEE Kai-ming
Hon Mrs Elsie TU, GBM
Hon Mrs Selina CHOW, JP
Hon CHAN Wing-chan
Hon LAU Kong-wah
Hon Ambrose LAU Hon-chuen, JP

Member absent :

Dr Hon Raymond HO Chung-tai, JP ]
Hon Allen LEE, JP]
Hon Henry WU] other commitments
Hon Ronald ARCULLI, JP]
Hon Bruce LIU Sing-lee]

Public Officers attending :

Ms Sally WONG
Deputy Secretary for Security

Mr K S SO
Principal Assistant Secretary for Security

Mr Ian G M WINGFIELD
Law Officer (Civil Law)

Mr J L ABBOTT
Senior Assistant Law Draftsman

Mr Byron T W LEUNG
Government Counsel
Clerk in attendance :

Mrs Sharon TONG
Chief Assistant Secretary (2) 1

Staff in attendance :

Mr Jimmy MA
Legal Adviser

Mr LEE Yu-sung
Senior Assistant Legal Adviser

Miss Betty MA
Senior Assistant Secretary (2)1

I. Election of Chairman

1. Mr Howard YOUNG was elected the Chairman of the Bills Committee.

II. Meeting with the Administration

(Provisional Legislative Council Brief entitled - "Immigration (Amendment) Bill 1998" and "Vietnamese Refugees / Vietnamese Migrants / Vietnamese Illegal Immigrants : The Way Forward" Legal Service Division Report - Ref : PLC Paper No. LS87 The Bill)

2. Members enquired about the making of removing orders against Vietnamese Illegal Immigrants (VIIs). In response, Deputy Secretary for Security (DS/S) said that Part IIIA of the Immigration Ordinance (the Ordinance) contained special provisions dealing with unauthorized arrivals from Vietnam, allowing for detention, screening and review of screening decision in line with the "port of first asylum policy". The decision to abolish the policy could not be implemented without amending the Ordinance. With the disapplication of Part IIIA of the Ordinance, VIIs would be detained under section 32 of the Ordinance and be removed from Hong Kong under section 18(1) (if removal is effected within two months after arrival in Hong Kong); or section 19(1)(b) (if removal is effected over two months after arrival in Hong Kong) of the Ordinance. Given that it normally took four to six months to remove VIIs after their arrival in Hong Kong, the Administration would have to rely on section 19(1)(b) in effecting their removal. Under existing section 19(1)(b), a removal order had to be made personally by the Director or Deputy Director of Immigration, whereas officers at Senior Principal Immigration Officers level or above were empowered to make removal orders under Part IIIA of the Ordinance. Having regard to the fact that about 1 700 Vietnamese illegal arrivals were recorded in 1997, it was anticipated that the Director or Deputy Director would have to spend a disproportionate amount of time to consider and make the necessary individual removal orders and to defend them in court upon the disapplication of Part IIIA of the Ordinance. Hence, it was necessary to empower officers at the Assistant Director of Immigration level to make removal orders under section 19(1)(b) to share out the additional workload. The delegation of power to officers at the Assistant Director of Immigration level, instead of officers at Senior Principal Immigration Officer level or above as at present under Part IIIA of the Ordinance, was considered adequate to cope with the anticipated workload in future.

3. Responding to Mrs Selina CHOW’s enquiry, Law Officer (Civil Law) (LO/CL) clarified that the effect of clause 3 was to add the provisions relating to detention pending removal now applied only to arrivals from Vietnam under Part IIIA of the Ordinance to the general detention provisions under section 32 of the same Ordinance.

4. Mr LEE Kai-ming enquired whether the treatment for new arrivals from Vietnam and Ex-China Vietnamese Illegal Immigrants (ECVIIs) from Mainland China would be different under the proposed legislative amendment. In reply, DS/S said that neither category of Vietnamese illegal arrivals would have a statutory rights of screening of refugee status or of appealing to the Refugee Status Review Board after the enactment of the proposed legislation. Both categories of Vietnamese people would be repatriated as soon as possible. In reply to further questions from members, DS/S said that the Administration had already reached an agreement with the Mainland authorities in 1995 regarding the return of ECVIIs to China. The specific repatriation arrangement for new arrivals from Vietnam had yet to be worked out with the Vietnamese Government (VNG).

5. Mrs Elsie TU was concerned about the habeas corpus proceedings brought by the Vietnamese detainees on the ground that they had been detained for an unreasonable period. DS/S responded that the effect of the proposed legislative amendment was to require the court, in deciding whether a period of detention was unreasonable, to take into consideration the extent to what it was possible to make arrangements to remove the detainee, such as whether the receiving country had delayed in responding to the Administration’s request which was beyond the latter’s control. LO/CL added that the judiciary had shown a certain degree of understanding of the Administration’s position in this regard. Judges ordered release only if it had become apparent to them that there was no prospect at all of repatriating the detainee to Vietnam. A considerable period of detention had been allowed provided that it appeared to the court there was a reasonable prospect of repatriation.

6. In response to a further question from Mrs Elsie TU, DS/S said that it was the established policy that all the VIIs would be repatriated to Vietnam once the clearance process by the VNG was completed. Moreover, it was pointed out that most VIIs now came to Hong Kong not to seek asylum, but to seek illegal employment and make money. Thus most of these VIIs wanted to return to Vietnam when arrested for taking up illegal employment.

7. Members noted that clause 2 providing for the disapplication of Part IIIA of the Ordinance, if enacted, would take effect from its gazette date, i.e. 9 January 1998. They expressed concern about the implications of the retrospective effect of the Bill. DS/S said that the Administration would not resort to retrospective legislation as far as possible. However, if the Administration simply made an announcement on the abolition of the "port of first asylum policy" without bringing into effect the corresponding legislation, snakeheads and individuals would exploit the gap and bring people into Hong Kong illegally. She added that the Administration had been advised by the Mainland authorities that the ECVIIs in the Mainland, particularly those in Guangdong, were watching closely through the media developments in Hong Kong. In order to avert a possible influx of new arrivals from Vietnam and ECVIIs while the Bill was being scrutinized by the PLC, the Administration therefore considered that clause 2 should take effect from its gazette date. No ECVII had been arrested after the announcement of abolishing the "port of first asylum policy" was made.

8. Mrs Elsie TU enquired whether there was an influx of VIIs since the announcement in the change of policy. DS/S replied that only 35 VIIs had been intercepted since the announcement was made. The corresponding figure in 1997 was 89. She further said that in the event the retrospective clause was not passed, these VIIs would have the right to ask for screening of refugee status and review of screening decision by the Refugee Status Review Board.

III. Internal discussion

Clause-by-clause examination of the Bill

Clause 1

9. In the light of a possible influx of VIIs or ECVIIs before the legislative changes could be made, members raised no objection to the provision contained in clause 1(2) that the disapplication of Part IIIA of the Ordinance should take retrospective effect from the gazette date of the Bill.

Clause 2

10. Legal Adviser (LA) opined that the Law Draftsman had undertaken to consider whether the reference to "first detained" in line 2 of the English text was actually necessary in the light of double backers to Hong Kong. He further said that the intention was to make clear who actually would be taken out of the new policy. The clarification was purely from drafting point of view which had no bearing on the policy.

Clause 3 Clause 3

11. LA pointed out that the provisions would not prevent the court from determining a case of challenge that the period of detention was unreasonably long. The court’s power to judicially review whether the detention was unreasonable would be retained.

12. Mr Ambrose LAU enquired whether new section (4A) required the court, in deciding on a reasonable period of detention, to take into account the circumstances which illegal immigrants purposely lied about their identity or destroyed their documents with the aim of deferring their removal from Hong Kong. LA advised that the court would take into account all the evidence available to determine whether the detention period was unreasonable. The present drafting of proposed section 32(4A) followed existing provisions in the Ordinance and would cover the circumstances as mentioned by Mr LAU.

Consultation

13. In view of the importance of the policy issues involved, members agreed to issue a press release to invite public views on the Bill. The deadline for submission was 17 February 1998. Members would consider the submissions or to meet deputations, if any requests were received, at the next meeting.

(Post-meeting note: A press release was issued on 11 February 1998.)

Legislative timetable

14. The Bills Committee agreed that, if no submission was received by the deadline, consultation with the House Committee would take place at its meeting on 20 February 1998 and the resumption of the Second Reading Debate of the Bill would take place on 4 March 1998. No Committee Stage amendment would be proposed by the Bills Committee.

IV. Date of Next Meeting

15. The next meeting was scheduled for 19 February 1998 at 10:45 am.

V. Close of meeting

16. There being no other business, the meeting closed at 5:35 pm.


Provisional Legislative Council Secretariat
26 February 1998