Re Chung Tu Quan and Others

Re Chung Tu Quan and Others

Detention under s.13D(1) can lawfully be applied as a general policy to migrants from Vietnam without individualized pre-detention representations; once legality is challenged respondents bear the legal burden to prove detention is reasonable under s.13D(1A)/(1B); detention is impliedly time-limited to that reasonably necessary to achieve repatriation/resettlement and becomes unlawful if the statutory purpose cannot be achieved within a reasonable time — accordingly the court ordered immediate release of Applicants A9, A10 and A11 because, on the balance of probabilities, Vietnam would not accept them for repatriation and there was no realistic prospect of removal, while A8's detention...

Citation
Re Chung Tu Quan and Others
Parties
Applicants: Chung Tu Quan and Others; Respondents: Director of Immigration and Other Respondents
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
24 January 1995
Case Number
HCMP3417/1994
Procedural Posture
Habeas Corpus (immigration/refugee Detainees) / High Court Judgment on Applications for Writs of Habeas Corpus
Outcome
Mixed: three applicants (A9, A10, A11) declared unlawfully detained and ordered released immediately; A8's detention declared lawful and continued; other applicants had been released earlier or removed during proceedings.
Legal Topics
Detention Without Trial, Repatriation, Burden of Proof in Habeas Corpus, Natural Justice and Procedural Fairness, Statutory Construction of S.13 D and S.13 E, Implied Limitation on Detention Duration, Screening Procedures, Orderly Repatriation Programme
Source Language
EN
Immigration Law Refugee Law Administrative Law Constitutional / Human Rights Law International Law Detention Without Trial Repatriation Burden of Proof in Habeas Corpus +5 more

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Parties

Chung Tu Quan and Others

Applicants

Director of Immigration and Other Respondents

Respondents

Procedural Posture

Habeas Corpus (immigration/refugee Detainees) / High Court Judgment on Applications for Writs of Habeas Corpus

Legal Issues

  1. 1 Whether detention under section 13D(1) of the Immigration Ordinance can be applied automatically as policy without individualized representations
  2. 2 Which party bears evidential and legal burdens in habeas corpus proceedings
  3. 3 Whether natural justice requires opportunity to make representations before detention under s.13D(1)

Ratio Decidendi

Detention under s.13D(1) can lawfully be applied as a general policy to migrants from Vietnam without individualized pre-detention representations; once legality is challenged respondents bear the legal burden to prove detention is reasonable under s.13D(1A)/(1B); detention is impliedly time-limited to that reasonably necessary to achieve repatriation/resettlement and becomes unlawful if the statutory purpose cannot be achieved within a reasonable time — accordingly the court ordered immediate release of Applicants A9, A10 and A11 because, on the balance of probabilities, Vietnam would not accept them for repatriation and there was no realistic prospect of removal, while A8's detention...

Court Disposition

Mixed: three applicants (A9, A10, A11) declared unlawfully detained and ordered released immediately; A8's detention declared lawful and continued; other applicants had been released earlier or removed during proceedings.

Orders

  • Declare detention of A9 under section 13D(1) unlawful and order immediate release
  • Declare detention of A10 under section 13D(1) unlawful and order immediate release