The Standard (Hong Kong): Judge issues sharp rebuke

Friday, September 23, 2005

"The government cannot hide behind the word 'security"' in denying people entry to Hong Kong, a High Court judge said Thursday in a case that could have far-reaching implications for immigration procedures.

Justice Michael Hartmann, presiding over a judicial review hearing requested by four Taiwanese Falun Gong practitioners who were barred from entering Hong Kong more than two years ago, issued a sharply worded rebuke to the government over its insistence that the applicants were barred on security grounds.

"One can see, without a fertile imagination, how easy it can be for governments in bad faith to hide behind the word 'security.' That's why we have post-war concepts of human rights," Hartmann said.

"If [the information on the computer screen before the immigration officer] says 'security,' and he clicks down and it says, 'Jew' - you're telling me that doesn't go to a fundamental breach of human rights?"

The government has so far refused to disclose what grounds beyond security were used for barring the Falun Gong [practitioners] from Hong Kong.

Falun Gong, which is banned in China, is legal in Hong Kong, where religious freedom is enshrined in the Basic Law.

The four, Theresa Chu, Liao Hsiao- lan, Lu Lih-ching and Chang Jenn-yeu, were part of a group of 83 practitioners seeking to attend an international Falun Gong conference in February 2003.

They claim the immigration department acted illegally, with excessive force, and in violation of their right to religious freedom in denying them entry to Hong Kong.

They were detained at Hong Kong International Airport before being sent back to Taiwan even though none of the practitioners had criminal records; they all have college education or higher; are in professional jobs and have previously been allowed into Hong Kong for business trips.

"The only rational conclusion that can be reached [is a] judgment to the effect that these people were rejected only for their religious affiliation," the judge said.

Counsel for the government, Daniel Fung SC, said he could only make his submissions based on the evidence filed in affidavits.

Senior immigration officers and former permanent secretary for security Timothy Tong affirmed that the decision to bar entry was not "merely by virtue of them being Falun Gong members."

Fung said Wednesday there was no reason to suggest that was false.

"Mere assertion is not enough," countered Hartmann Thursday.

The judge noted that the government has already stated that its immigration watchlist is not a "stoplist" and so clearly immigration officers must exercise discretion.

"If I'm an immigration officer and I'm sitting at my desk and I check somebody's passport and a watchlist comes up and says 'security' - I know that does not automatically bar him. But I have to ask questions. Well, how can I ask him questions?

"What I imagine, is the immigration officer presses [whatever button necessary] and out comes the person's name and it says, 'believed to be Osama bin Laden's cousin.'

"Or, if it's a hardline animal activist, 'believed to have burnt down a mink farm.' Then I ask him, 'Why are you here?' - he says, 'It's my mother's birthday' - so I let him in, because he's not going to sabotage anything."

Hartmann said he could well understand the practitioners wanting to see additional information, because if it only says, "Falun Gong member - 10 years," then their counsel has evidence that entry was refused based on religious affiliation.

"But that's not the case," said Fung. Hartmann said: "But how do I know?"

Or alternatively, noted the judge, the government is saying there is no other information available to the immigration officer at the time apart from "security risk" and if that's the case, "I'm astounded," the judge said.

"That shows a deep irrationality in the process. And I find that really incredible.

"In other words, a hardworking officer from Special Branch may find vital intelligence on a terrorist bomber. That person [terrorist] arrives in Hong Kong intent on doing damage.

"But all that pops up in front of the immigration officer is 'security.'

"So he looks at the guy; he's wearing a tie - and we all know people who wear ties are of a high moral standard - he says he's coming for his mother's birthday.

"The officer lets him in, and he blows something up.

"I'm sorry, that's an absurdity," the judge added.

Hartmann noted that both the Court of First Instance and the Court of Appeal have endorsed the judicial review, filed on the basis of an alleged violation of rights, which he has the duty to resolve. "Surely it's necessary for disposing fairly of this matter to know what information was immediately before the immigration officer," Hartmann said, otherwise the whole judicial review would be "frustrated."

Following the judge's remarks, the hearing took an early break Thursday morning for Fung to take instructions from "the very highest levels."

The hearing was then adjourned until this morning for the government to prepare more affidavits.

Counsel for the four practitioners, Paul Harris, restated his assertion that that public bodies have a "high duty" to assist the court and give a "true and comprehensive" account of their decision-making, but if the court has to "tease the truth" then "adverse inferences may be drawn."