THE ICCPR AND VIETNAMESE MIGRANTS

IN HONG KONG

  1. Since June 1988 the Hong Kong Government has operated a policy under which Vietnamese people arriving in the territory and claiming refugee status are detained in closed camps pending consideration of their applications for refugee status. If the applications are accepted they are permitted to transfer to an open camp. If they are refused they must remain in the closed camp until they are returned to Vietnam, either under voluntary arrangements or compulsorily.

  2. The process of considering the applications of these Vietnamese migrants is a 2 stage one, with an initial decision by officials acting for the Director of Immigration, and a right of appeal to a specially created tribunal, the Refugee Status Review Board (RSRB). In addition an applicant can apply direct to the United Nations High Commissioner for Refugees toe exercise power under his mandate to determine that the individual concerned is a refugee. The 2 stage procedure operated by the Hong Kong Government is known as screening. Successful applicants are "screened in". Unsuccessful one are "screened out".

  3. The screening process is extremely slow. So, after screening procedures have been completed, is the making of arrangements for repatriation to Vietnam. Those to be repatriated must be individually approved by the Vietnamese Government, which has in the past made plain its disapproval of compulsory repatriation.

  4. Although the number of new arrivals of Vietnamese people seeking refugee status is now very small the result of the delays mentioned above and of the large number of arrivals in the late 1980s and early 1990s is that there are today about 21,000 Vietnamese people detained in closed camps. All of these people have now been screened out, the screening process having been completed (save for later new arrivals) in December 1994. Many of them have been in the camps since 1988 or 1989. In addition many children have been born in the camps.

  5. The closed camps - officially known as detention centres - are prisons in all but name, save for the fact that the prisoners are not subject to prison disciplinary regulations, and so are not locked in cells, but are free to circulate within the wired in and heavily guarded compound or camp section within which they are detained. Accommodation is provided by barrack-like dormitories where one family normally shares a large bunk bed known as a bed space. In the largest detention centre, Whitehead, the showers are located in the open directly above the open drain type latrines in relation to both sleeping accommodation and washing facilities conditions are worse than in Hong Kong's designed prisons for convicted criminals. Many of the detainees, including young children, have been detained in these conditions for up to 7 years - a period longer than the Second World War, and coincidentally the period of the maximum sentence of imprisonment which can be imposed by the Hong Kong District Court for the most serious offenses which it is permitted to try. The periods of years for which one group of detainees had been held were recently described by one Hong Kong High Court judge as "At first blush an affront to the standards of the civilized society which Hong Kong aspires to be." (Keith J in Re: Chung Tu Quan & Ors 1996 1 HKC 566)

  6. The question arises whether this detention of these people in these conditions for so long is in conformity with international human rights law and in particular with the International Covenant on Civil and Political Rights (ICCPR).

  7. However, before tackling this question it may be helpful first to outline the position of these detainees and their rights under Hong Kong law.

  8. Powers relating to the detention of Vietnamese refugees are contained in Part IIIA of the Immigration Ordinance (Cap. 115) as amended. Section 13 __ of the Ordinance provides that as from 2 July 1982 any resident or former resident of Vietnam who arrives in Hong Kong without a visa or visa exception may "whether or not he has requested permission to remain in Hong Kong, be detained under the authority of the Director [ of Immigration ] in such detention centre as an immigration officer may specify pending a decision to grant or refuse his permission to remain in Hong Kong or, after a decision to refuse him such permission, pending his removal from Hong Kong, any child of such a person, whether or not he was born in Hong Kong and whether or not he has requested permission to remain in Hong Kong, may also be detained, unless that child holds a travel document with such a visa or has been granted such an exception.

  9. Section 13D (1A) of the Ordinance goes on to provide that : "The detention of a person under this section shall not be unlawful by reason of the period of the detention if that period is reasonable having regard to all the circumstances affecting that person's detention, including -

    (a) in the case of a person being detained pending a decision under Section 13A(1) to grant or refuse him permission to remain in Hong Kong as a refugee -

    (i) the number of persons being detained pending decisions'.. whether to grant or refuse them such permission; and

    (ii) the manpower and resources allocated to carry out the work involved in making all such decisions;

    (b) in the case of a person being detained pending his removal from Hong Kong -

    (i) the extent to which it is possible to make arrangement to effect his removal; and

    (ii) whether or not the person has declared arrangement made or proposed for his removal.

  10. These provisions not only give explicit statutory authority for the detention of Vietnamese asylum seekers. They also appear to restrict severely the scope for challenges to the continued detention of individuals on the basis that the detention is unreasonable because it is of excessive length. If Section 13D 1A had not been enacted the relevant provision with regard to the permitted length of detention would, if the absence of any specific statutory time limits, have been Section 70 of the Interpretation and General Clauses Ordinance, which provides that "where no time is prescribed or allowed within which any thing shall be done, such thing shall be done without unreasonable delay".

  11. The case of Re Chung Tu Quan & Ors (above) is a challenge to the reasonableness, and thus the lawfulness, of the continued detention of a group of detainees whom it was claimed would never in fact be accepted back by Vietnam because they held or were deemed Vietnam to hold other nationalities, in several cases so called Taiwanese passports which did not in fact give them the right to enter Taiwan. The challenges were brought by way if writs of habeas corpus, which are available in Hong Kong on the same basis as in the United Kingdom under the provisions of the Application of English Habeas Corpus Acts of 1679 and 1815. In 3 cases Keith J held at first instance that the continued detention was unlawful. He held that a power of detention which is not expressed to be limited in duration is nevertheless to be regarded as impliedly limited to (a) such period as was reusable necessary to achieve the purpose for which the power was granted and (b) those cases in which that purpose could be achieved within a reasonable time. He held that it was for the court and not the person in whom the power of detention was vested to determine what period was reasonably necessary to achieve the purpose for which the power was granted and whether that purpose could be achieved within a reasonable time. In the 3 cases concerned he held that on the balance of probabilities it was likely that the Vietnamese authorities would refuse to accept them for repatriation; that there was therefore no reasonable prospect of their being removed from Hong Kong in the foreseeable future and that their continued detention was therefore unlawful.

  12. This decision has been reversed by the Hong Kong Court of Appeal { Power V.P., Litton V.P. and Mortimer JA: 1955 Civil Appeal No. 31 }. Litton V.P. stated that once it was shown that attempts were still being made to repatriate the applicants that was conclusive proof that their detention was lawful. This decision is being appealed to the Judicial Committee of the Privy Council.

  13. Whatever the ultimate outcome of the Chung Tu Quan case it will primarily affect the relatively small proportion of detainees for whom there is an obvious impediment to repatriation such as an issue of nationality.

  14. Other Legal challenges to the procedures for dealing with Vietnamese refugees have been applications for judicial review based on the procedural correctness of the screening procedure. An issue which potentially affects every one of the detainees. Underlying these challenges is a widespread concern among lawyers and aid agency officials who have worked with the refugees that the operation of the screening procedure is tainted with bias against the applicants and that there are a substantial number of people who are genuine refugees and who have been wrongly screened out. {A useful survey which concluded that there was such bias is "Hong Kong's Refugee Status Review Board: Problems in Status determination for Vietnamese asylum seekers" ; Lawyers Committee for Human Rights, new York, March 1992}.

  15. The first of these challenges was made in R. v Director of Immigration and Refugee Status Review Board ex parte Do Giau & Others (1992) 1 HKLR 287. In that case Mortimer J held that the decisions of the Immigration Department and of the Refugee Status Review Board were flawed on grounds of procedural irregularity and should be guasted. The particular facts of the case involved an erroneous record by the Immigration Officer that the applicant had once worked in a state-owned rice mill. Working in the State sector would be a significant adverse finding in relation to screening as a refugee. In fact the applicant had not worked in such a place and the recording was an error, but this was not discovered until after the bearing before the Refugee Status Review Board.

  16. In Re Le To Ph_____ & Ors (1992) MP No. 236B Lie J. held that the procedures employed in a particular case were flawed in that they did not provide for the interviewing Immigration Officer to read back his notes to the interviewee to ensure that they were an accurate record of what had been said. This decision was however again reversed by the Court of Appeal [1993 Civil Appeal No. 154]. The Court of Appeal stated that generally speaking as a matter of good practice read-back of notes taken by an interviewer was desirable, but that was not required in order to comply with the procedural requirements of natural justice.

  17. A further challenge by way of judicial review was brought in Tran Quoc Caong and Khoc The Loc 1991 2 HKLR 312. This was based on the failure to assess detainees' cases individually before the initial act of detention on arrival, and on the transfer of some detainees to Stanley Prison, which was alleged, but denied by the Government, to be for punitive reasons, Stanley Prison having been designated as a detention centre shortly before the applicants were transferred there. The case was dismissed in strong terms by Jones J., who suggested that the grant of legal aid to the applicants to bring it was close to being an abuse of process.

  18. For completeness I also mention 2 other cases. Pham Van Ngo and 110 others ({1991} 1 HKLR 499) concerned the detention, found to be illegal, of ill Vietnamese boat people who had entered Hong Kong and requested assistance in containing their journey to Japan, where at that date all Vietnamese boat people were automatically accepted as refugees. In that case the High Court stated that the detention was inter alia a contravention of Article 9 of the ICCPR which provides that no one shall be deprived of their liberty save by law. The detention was also unlawful under Hong Kong domestic law, as it was made on the basis of a blanket detention order applying to all 111 persons, the persons in question were not seeking re-settlement as refugees from Hong Kong, and the 18 month period of the detention was entirely accepts Vietnamese boat people as being refugees and the circumstances which gave rise to this case are therefore unlikely to recur. Finally in Nguyen Dang Yu & Aor Unrep. Miscellaneous Proceedings 4257 of 1993 { 5.1.1994} an attempt was made to use the wardship jurisdiction to make a Vietnamese child in one of the detention centres a ward of court with a view to securing his adoption by relatives in California. Kaplan J. held that while in some circumstances the wardship jurisdiction might be exercisable in relation to a child in a detention centre in that case it was being used as a device to delay the child's return to Vietnam and was therefore not a proper use of the jurisdiction and the wardship would be discharged.

  19. It will be noted that there are no challenges in the Hong Kong courts based on alleged contraventions of Hong Kong's own Bill of Rights. This is mainly because Section 11 of the Bill of Rights Ordinance (Cap.383) provides that "as regards persons not having the right to enter and remain in Hong Kong this Ordinance does not affect any immigration legislation governing entry into stay and departure from Hong Kong or the application of any such legislation. The detention of the Vietnamese migrants is therefore substantially excluded from the ambit of the Bill of Rights. It should be noted however that Section 11 of the Bill of Rights applies to only the part of the immigration legislation governing entry stay or deportation of people with no right to remain in Hong Kong (see Hai Ho Tak v Attorney-General Civil Appeal No. 54 of 1993 [ 8.4.1994 ]. Thus it does not appear to exclude issues involving the Vietnamese detainees which relate not to the fact of their detention but to such matters as whether the particular conditions of detention breach articles such as Article 3 prohibiting any person from being subjected to degrading treatment or Article 6 which provides that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the person. The applicability of these articles and the possibility hat the conditions in the detention centres breach them does not however appear to have been tested yet in the courts.

  20. I now turn to the question of whether Hong Kong Government policy in this area or its application breach any of the provisions either of the ICCPR or other international human rights instruments.

  21. Articles 2 (1) of the ICCPR provides that each state party to the Covenant undertakes to ensure to all individuals within its territory the rights recognized in the Covenant without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. The exclusion of persons not having the right to remain in Hong Kong from the ambit of Hong Kong's Bill of Rights - which is explicitly intended to make the provisions of the ICCPR part of Hong Kong's domestic law - would normally in itself be a breach of the ICCPR. However when the ICCPR was extended to Hong Kong by the United Kingdom's ratification on 20 July 1976 a reservation was entered in the following terms:-

    "The Government of the United Kingdom reserve the right to continue to apply such immigration legislation governing entry into, stay in and departure from the United Kingdom as they may deem necessary from time to time and, accordingly, their acceptance of article 12(4) and of the other provisions of the Covenant is subject to the provisions of any such legislation as regards persons not at the time having the right under the Law of the United Kingdom to enter and remain in the United Kingdom. The United Kingdom also reserves a similar right in relation to each of its dependent territories.

  22. This reservation would appear to permit the Hong Kong Government to disapply the Bill of Rights insofar as it conflicts with Hong Kong's immigration law. However the limitation in Section 11 of the Bill of Rights Ordinance quoted above { paragraph 19} appears to go further in that it states that the Bill f Rights is inapplicable not only to immigration legislation but to "the application o such application of such legislation". If the application is taken to mean merely the direct application of the terms of the relevant legislation that would appear consistent with the reservation. If however it were held in domestic law to have a wider meaning i.e. so as to exclude all responsibility for breaches of the ICCPR which have occurred in relation to persons subject to immigration control, whatever the breach and however indirect the connection with that person's immigration status, it is submitted that such an interpretation would be outside the terms of the 1976 reservation and would itself amount to a breach of Article 2 of the ICCPR.

  23. The Hong Kong Government in its Fourth report to the UN Human Rights Committee deals with the situation of the Vietnamese migrants at some length in its report on Article 9 of the ICCPR, which, as mentioned, deals with the right to liberty. Article 9.1. states that no one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. Article 9.4 states that anyone who I deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

  24. As explained above the detention of the Vietnamese detainees does appear to be in accordance with established laws. Such detentions are open to challenge in the court, and a number have been challenged although generally with little success. It appears therefore difficult to argue that the detention constitutes a breach of Article 9.

  25. The Hong Kong Government is however on very muck weaker ground in relation to the conditions of detention. It is significant that as compared with the lengthy exposition of the situation with regard to the Vietnamese which is set out to relation to Article 9 the Government's report is wholly silent abut the Vietnamese in those sections of the report which deal with Article 7 and Article 10 of the ICCPR, which I deal with below. Moreover, as already explained [ para. 22 above] , the conditions under which detainees are held, save insofar as these are specified in immigration legislation, are not removed from the ambit of the Hong Kong Government's obligations under the ICCPR by the 1976 reservation set out above.

  26. Article 7 is sometimes loosely referred to as the article dealing with torture. However, its ambit is considerably wide. Its first sentence states that " no one shall be subjected to torture or to cruel inhuman or degrading treatment or punishment. " It seems difficult to deny that locking people up for years in grossly overcrowded conditions, where the only showers are in the open above an open latrine, constitutes cruel and degrading treatment.

  27. Article 10 provides that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. Again, the conditions in the detention centres would appear to be a clear and serious breach of Article 10. The case law on the application of these articles indicates that the threshold for a violation of Article 10 is lower than that for Article 7 in that the requirement of humane treatment goes beyond the mere prohibition of inhuman treatment under Article 7 with regard to the extent of the necessary "respect for the inherent dignity of the human person" [ See Mandred Nowak: ICCPR Commentary, p. 189 ]. The case for a breach of article 10 is therefore even stronger than for a breach of Article 7. I very much hope that the United Nations Human Rights Committee will condemn the United Kingdom Government for breaches of Article 7 and Article 10 in this context.

  28. What of other United Nations instruments with a bearing on the treatment of refugees or persons claiming refugee status? Those most directly relevant are the United Nations Convention on the Status of Refugees 1951 and the 1967 Protocol thereto. These have been signed and ratified by the United Kingdom, but have not been done. The United Kingdom and the United Nations High Commissioner for Refugees signed a Statement of Understanding in 1988 whereby the Hong Kong Government agreed to apply the " appropriate humanitarian criteria for determining refugee status " in relation to Vietnamese asylum seekers. These criteria are applied in theory in so far as those involved in the screening process draw on the guidance published by the UNHCR entitled " Handbook on procedures and criteria for determining refugee status ". As already explained doubts have been expressed by many of those who have assisted asylum seekers as to whether these criteria have in fact been applied fairly. The official UNHCR position is that all those who have been screened out have been screened out correctly.

  29. Apart from the Statement of Understanding International refugee law is not part of the law of Hong Kong. This issue is outside the scope of this lecture but it should be noted that while UNHCR in Hong Kong does informally advise the Hong Kong Government in relation to some application for refugee status from other countries, such persons have no legal right to UNHCR assistance or to the application of international refugee determination criteria to them. At any one time UNHCR are handling about 10 such cases. However it is not certain that all such cases are correctly identified and referred to them.

  30. It is noteworthy that the United Kingdom has recently extended to Hong Kong another international human rights instrument with implications for those detained in the detention centres, namely the United Nations Convention on the Rights of the Child. Article 22 of the Convention deals specifically with children who are refugees or seeking refugee status. It states that :-

    " States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedure shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set firth in the present Convention and in other international human tights or humanitarian instruments to which the said States are Parties."

  31. However in extending the Convention to Hong Kong the United Kingdom Government has entered a reservation which reads as follows:

    "The United Kingdom, in respect of Hong Kong.. will seek to apply in the Convention to the fullest extent to children seeking asylum in those territories except in so far as conditions and resources make full implementation impracticable. In particular, in relation to Article 22, the United Kingdom reserves the right to continue to apply any legislation in those territories governing the detention of children seeking refugee status, the determination of their status and their entry into, stay in and departure from those territories."

  32. Two points arise in relation to this reservation. Firstly it is expressly linked to practicability as affected by conditions and resources. It seems very implausible to suggest that there are conditions or resources constraints which make it necessary to detain children in the types of conditions referred to above. It follows that notwithstanding the reservation the conditions of children held in the detention centres still breach the Covenant, although the intention behind the reservation was clearly to avoid this.

  33. Secondly, there is no equivalent reservation to that relating to the Convention on the Rights of the Child in relation to Articles 7 or 10 of the ICCPR as applied to Hong Kong, despite the fact that Articles 7 and 10 are very similar in their wording to articles in the Convention on the Rights of the Child. For example, Article 37 (a) of the Convention on the rights of the child states that " No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment". This is and exact equivalent of Article 7 of the ICCPR. Article 37 (e) of the Convention on the Rights of the Child states that " Every child deprived of liberty shall be treated with humanity and with respect for the inherent dignity of human person", very similar wording to Article 10 of the ICCPR. The fact that the UK Government felt it necessary or appropriate to enter a reservation covering inter alia Articles 37 (a) and (e) of the Rights of the Child Convention in relation to the treatment of the Vietnamese migrants strongly supports the contention that that treatment is in breach both the Rights of the Child Convention and of the equivalent provisions in the ICCPR.

  34. What should the Hong Kong Government do to remedy its breaches of Articles 7 and 10 and of the Convention on the Rights of the Child? Government officials have been quoted as saying that it is doubtful whether even with forced repatriations it will be possible to return all those in the Vietnamese detention centres to Vietnam before the transfer of sovereignty 21 months away. The detainees are therefore in many cases going to be in Hong Kong for a considerable further period beyond that for which they have already been held. The question arises whether after a certain period the mere length of detention in the case of a person who had not committed a crime or been charged with one is capable of constituting lack of respect for the inherent dignity of the human person. There do not appear to be any cases on this point. The majority of cases considered so far by the United Nations Human Rights Committee in relation to article 10 (1) appear to have involved imprisonment or detention linked to an allegation of wrongdoing {see e.g. Larrosa Beguio No 88/1983 and other cases involving the period of military dictatorship in Uruguay; Marais No. 49/1979; Luyeye Magana ex Philibert No/1981; and Kelly V Jamaica No. 253/1987.} However, in principle there must come a point when indefinite detention, even if lawful under domestic law, becomes a breach of Article 10, a fortiors in relation to detention of a child. Indeed it could be argued that if international human rights law does not prevent a child from being deprived of liberty for 7 years for no crime it has failed in its primary objectives. Determining at what point length of detention alone becomes cruel and degrading is difficult as individual circumstances vary. However, I would suggest that a starting point would be the length of sentence normally in the Hong Kong courts under section 38 (1) of the Immigration Ordinance on a person who is convicted of entering Hong Kong illegally. The tariff for a typical case of this kind without either mitigating or aggravating factors is currently 15 months. An alternative starting point, more serve to the detainee, would be 3 years, which is the maximum sentence which can be imposed under Section 38 (1). It would seem wrong in principle that people who have arrived by boat from Vietnam can be held in administrative detention for a longer period than people from elsewhere who are imprisoned after conviction by a court.

  35. Leaving aside the issue of length of detention much assistance as to what are acceptance conditions of detention for children can be obtained from the United Nations Rules for the Protection of Juveniles Deprived of their liberty, adopted by United Nations General Assembly resolution 45/113 of 14 December 1990. These rules are not accompanied by enforcement machinery such as that incorporated in the ICCPR. Nevertheless as the United Nations approved statement of rules on this subject they carry great weight and are a helpful indication as the matters which would give rise to a breach of Article 10 of the ICCPR. The rules are mainly drafted with juveniles charged with crimes in mind. However, Rule 11 makes it clear that they apply to "any form of detention". From which [ the juvenile ] is not permitted to leave at will, by order of any judicial, administrative or other public authority". The Rules therefore clearly apply to children held by administrative decision in the Vietnamese detention centres.

  36. Rule 33 states that "Sleeping accommodation should normally consist of small group dormitories or individual bedrooms, while bearing in mind local standards". Rule 38 states that " Every juvenile of compulsory school age has the right to education suited to his or her needs and abilities and designed to prepare him or her for return to society. Such education should be provided outside the detention facilities in community schools wherever possible and, in any case, by qualified teachers through programmes integrated with the education system of the country so that after releases, juvenile may continue their education without difficulty. Special attention should be given by the administration of the detention facilities to the education of juvenile of foreign origin or with particular cultural or ethnic needs. " [ This is a level of schooling far beyond the rudimentary elementary schooling at present provided in the detention centres ]. Rule 39 states that " Juveniles above compulsory school age who wish to continue their education should be permitted and encouraged to do so, and every effort should be made to provide them with access to appropriate educational programmes". Rule 34 states that "Sanitary installations should be so located and of a sufficient standard to enable every juvenile to comply, as required, with their physical needs in privacy and in a clean and decent manner. "

  37. All of these rules are being broken in the detention centres. This reinforces the view that conditions there are in breach of Article 10 of the ICCPR. I would suggest that there is no possibility that the breaches of Article 10 can be said to be remedied even in relation to more recent arrivals in the centres until all the breaches of the United Nations Rules for the Protection of Juveniles have been put right.

  38. It may be that the Hong Kong authorities conclude that the extra funds required to bring the detention centres up to the standard required to comply with the international law are such as to make the whole cost of running the detention centres prohibitive and that in the circumstances there is no need to keep the detainees in closed camps any longer. The original purpose of the closed camps was to deter further arrivals from Vietnam. It may be that this could now be achieved in other ways. e.g. by an abolition of the 2 tier screening process and the immediate repatriation of new arrivals unless they can show compelling evidence of persecution. In such circumstances there is no need to retain expensive and dehumanising guarded camps for people who are not criminals.

  39. The suspicion among lawyers and aid workers with the refugees is that conditions in the camps are being deliberately kept bad in order to encourage people to volunteer for repatriation. If this is the case the breaches of Article 10 become much more serious, in that they would then be an instrument of Government policy, rather than solely due to shortcomings at a local level. If it wishes to dispel these suspicions the Hong Kong Government should urgently embark on a programme of improvements. The plea of lack of resources is unconvincing in one of the world's richest territories, and toleration of these abuses in Hong Kong damages the territory's international reputation and will reduce sympathy for any difficulties Hong Kong people may face in the near future as the territory's status changes.

PAUL HARRIS

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1995 (c) Hong Kong Human Rights Monitor