Tan Te Lam v Superintendent of Tai A Chau Detention Centre
| Jurisdiction | UK Non-devolved |
| Court | Privy Council |
| Judgment Date | 1995 |
| Year | 1995 |
| Date | 1995 |
Hong Kong - Immigration - Detention “pending … removal” - Migrants awaiting compulsory repatriation to Vietnam - Vietnam refusing to accept non-Vietnamese nationals for repatriation - Applicant migrants held for several years - Whether period of detention limited - Whether sufficient prospect of repatriation to justify detention pending removal - Whether for Director of Immigration or court to determine -
The applicants, of Chinese ethnic origin, were part of a large number of migrants from Vietnam who had arrived without permission in Hong Kong by boat and, having been refused refugee status, had been detained under section 13D(1) of the Immigration OrdinanceF1 for several years “pending … removal from Hong Kong.” The applicants sought writs of habeas corpus against the superintendents of the detention centres where they were being held seeking their release on the ground, inter alia, that there was no prospect of their being compulsorily repatriated, since the Vietnamese Government had a policy of refusing to accept back those whom they regarded as non-Vietnamese nationals and that, accordingly, their removal was not “pending.” The judge ordered the release of three of the applicants on that ground, although he found that the period during which they had been detained was in all the circumstances reasonable. He held that there was evidence that the fourth applicant would be repatriated “in the near future” and that he was thus still being held pending removal. On appeal, the Court of Appeal of Hong Kong held that the questions whether the length of detention was reasonable or repatriation possible were incidental to the discretionary powers conferred on the Director of Immigration by section 13D and as such were for the director and not the courts to decide, and that since the director had shown that attempts were still being made to repatriate the applicants, they continued to be held pending removal. Accordingly the judge's order to release the first three applicants was reversed and his decision regarding the fourth applicant upheld.
On the applicants' appeal to the Judicial Committee: —
Held, allowing the appeals, that where a statute had given the executive power to detain persons pending their removal from the country it was to be implied, unless the statute provided otherwise, that the power could only be exercised during such period as was reasonably necessary to effect removal and that if it became apparent that removal was not going to be possible within a reasonable time, further detention was not authorised; that the questions as to what constituted a reasonable period and whether there was sufficient prospect of the persons being removed within it were matters for the court to determine, with the burden being on the executive to prove on the balance of probabilities the facts necessary to justify the conclusion that the persons were being detained pending removal; and that, accordingly, since section 13D of the Ordinance did not conflict with the principle that detention had to be reasonable in all the circumstances, and since there were no grounds for overturning the judge's finding that the first three applicants would not be accepted for repatriation, whereas his belief that the fourth applicant would be removed in the near future had been shown by subsequent events to be wrong, the applicants would all be released from detention (post, pp. 873C–E, F–G, 874H–875A, D–F, 877H–878A, C–F.)
The following cases are referred to in the judgment of their Lordships:
Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [
Liew Kar-seng v. Governor-in-Council [
Pham Van Ngo, In re [
Reg. v. Governor of Durham Prison, Ex parte Hardial Singh [
Reg. v. Secretary of State for the Home Department, Ex parte Bugdaycay [
Reg. v. Secretary of State for the Home Department, Ex parte Khawaja [
The following additional cases were cited in argument:
Andrew v. Superintendent of Pudu Prisons, Kuala Lumpur [
Attorney-General of Hong Kong v. Lee Kwong-kut [
Cartwright v. Secretary of State for the Home Department (unreported), 15 August 1994; Court of Appeal (Civil Division) Transcript No. 1074 of 1994,
Djama v. Government of the Republic of Namibia,
Edwards (Inspector of Taxes) v. Bairstow [
Liu Ah Yong v. Superintendent of Prisons, Penang [
McEldowney v. Forde [
Mahmod (Wasfi Suleman), In re [
Ong Ah Chuan v. Public Prosecutor [
Reg. v. Director of Immigration, Ex parte Santiago [
Reg. v. Governor of Pentonville Prison, Ex parte Sital Singh (unreported), 8 July 1975,
Reg. v. Secretary of State for the Home Department, Ex parte Khan [
Rodriguez-Fernandez v. Wilkinson (
S.-C. (Mental Patient: Habeas Corpus), In re [
Sahin v. Canada (Minister of Citizenship and Immigration) (T.D.) [
Sokha v. Secretary of State for the Home Department [
APPEAL (No. 55 of 1995) by leave of the Court of Appeal of Hong Kong by the applicants, Tan Te Lam, Phung Hoan, Ly Hue My and Luu Tai Phong from the decision of the Court of Appeal of Hong Kong (Power and Litton V.-PP. and Mortimer J.A.) (1) allowing an appeal by the first respondent, the Superintendent of Tai A Chau Detention Centre, from the judgment of Keith J. who on 24 January 1995 had granted orders of habeus corpus in respect of the applicants Tan, Phung and Ly and ordered their release from detention; and (2) dismissing an appeal by the applicant Luu from the judgment of Keith J. on the same date whereby he had ordered that an earlier order of the High Court of Hong Kong directed to the second respondent, the Superintendent of High Island Detention Centre, for the issue of a writ of habeus corpus in respect of Luu, be discharged.
The facts are stated in the judgment of their Lordships.
Michael Beloff Q.C. and G. J. X. McCoy (of the English and Hong Kong Bars) for the applicants.
David Pannick Q.C., William Marshall Q.C. (of the English and Hong Kong Bars), Roxana Cheng (of the Hong Kong Bar) and Javan Herberg for the Detention Centre Superintendents.
27 March. The judgment of their Lordships was delivered by LORD BROWNE-WILKINSON.
Since 1985 some 80,000 migrants from Vietnam have arrived by boat in Hong Kong (“the Vietnamese boat people”). This enormous influx has placed great strains, economic, human and legal, on the colony. It has had to seek a balance between the claims of the immigrants to humane treatment and the practicalities of handling such a multitude of uninvited visitors. This appeal concerns four applicants, each of whom has been detained for years under statutory powers authorising such detention “pending his removal from Hong Kong.” The Hong Kong Government is, of course, anxious to remove the boat people from Hong Kong as soon as possible. But, in practice, the only country to which they can be removed is Vietnam and the delay in these applicants' removal is substantially due to the attitude adopted by the Vietnamese authorities over whom the Government of Hong Kong has no direct control. In particular, these applicants allege that the Vietnamese authorities have a policy of refusing to accept repatriation of those whom they regard as being non-Vietnamese nationals, including these four applicants. In these habeas corpus proceedings the applicants allege that, given the very long periods of detention and the policy of Vietnam, their further detention is not authorised by the statutory powers and their detention is unlawful.
BackgroundBefore turning to the matters directly in issue, it is necessary to set out some of the background. The exceptionally comprehensive and lucid judgment of the trial judge, Keith J., sets out the facts in full from which their Lordships derive the following comparatively short summary. The Vietnamese boat people started to arrive in Hong Kong after the fall of Saigon in 1975. The Hong Kong Government originally adopted the policy of granting to the boat people first asylum in Hong Kong. But this was only done on the basis that those granted asylum in Hong Kong would in due course be resettled elsewhere by the rest of the international community. Between 1975 and 1982 the boat people arriving in Hong Kong were not placed in detention pending their resettlement elsewhere in the world. This policy changed in 1982 when the Hong Kong Government, whilst adhering to the policy of granting the migrants...
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