Chu Woan-chyi, Theresa and Others v. Director of Immigration

CACV 331/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 331 OF 2003

(ON APPEAL FROM HCAL NO. 32 OF 2003)

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Coram: Hon Rogers VP and Le Pichon JA in Court

Date of Hearing: 29 June 2004

Date of Judgment: 29 June 2004

Date of Handing Down Reasons for Judgment: 5 July 2004

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1.This is an appeal from a decision of Chu J given on 14 October 2003 whereby the judge refused the 5th applicant's application for leave to bring proceedings for judicial review in respect of two decisions of the Director of Immigration ("the Director") made on 21 and/or 22 February 2003 refusing the 1st to 4th applicants permission to land and remain in Hong Kong and removing them from Hong Kong. At the conclusion of the hearing of this appeal, this court allowed the appeal and granted the 5th applicant leave to move for judicial review of the said decisions. This court also allowed the joinder of the 6th applicant, the Hong Kong Association of Falun Dafa, and granted leave to the applicants to amend the notice of application for leave to move for judicial review in the form which was contained in the court's bundle. The court gave consequential directions including that there should be an expedited hearing.

Background

2.The 5th applicant is the chairman of the 6th applicant. The 6th applicant was the organiser of a conference to be held in Hong Kong on 22 February 2003. Needless to say, and as the evidence shows, the 5th applicant was substantially involved in the organisation of that conference. The 1st to 4th applicants are Taiwanese citizens who attempted to come to Hong Kong to attend the conference. The evidence shows that each of the 1st to 4th applicants had valid visas to visit Hong Kong when they arrived. They were, however stopped at immigration, where they were held for varying times up to 12 hours. The evidence, of course at this stage only coming from the applicants, was that they were unnecessarily badly treated. They were not permitted even to stand up during the period of detention, not to mention the fact that they were not permitted either food or water. In the cases of the 3rd and 4th applicants at least, they were very roughly manhandled. The 1st to 4th applicants were amongst some 80 persons from outside Hong Kong who were refused entry to the 2003 conference. Those included, apparently persons who had been intended to speak at the conference.

3.The conclusion to be drawn from the evidence filed by the 1st to 4th applicants is that there was no apparent reason why they should have been refused entry to Hong Kong on that occasion other than that it was a deliberate attempt to prevent them from attending the conference.

4.The 5th defendant filed evidence that the 6th defendant is a Buddhist spiritual movement based on a system of self-development involving study and practice. It is a society registered under the Societies Ordinance, Cap. 151. The 5th defendant's evidence goes on, in paragraph 6 of his affirmation of 29 May 2003, to explain why he had been advised by his legal advisers that the nature of the teachings and practice of Falun Gong brought it within the legal definition of a religion.

5.It is the 5th applicant's case that his rights and the rights of the members of the 6th applicant under Article 141 of the Basic Law had been infringed. That article reads:

"Religious organizations and believers in the Hong Kong Special Administrative Region may maintain and develop their relations with religious organizations and believers elsewhere."

6.The judge below refused the 5th applicant's application on the basis that the materials before the court did not demonstrate that he was affected by the decisions of the Director. She went on to say in paragraph 13 of her judgment:

"If they fall short of showing that the decisions under challenge were part of a policy to exclude Falun Gong practitioners from Hong Kong. The suggestion that the Conference was made less worthwhile by the exclusion of the 1st to 4th applicants and other participants has to be considered against the evidence that the Conference was attended by about 800 people, with 600 participants from overseas. There is a missing gap between the decisions of the Director and the rights under Article 141 of the Basic Law. As to the feeling of disappointment deposed to, it does not afford a sufficient interest. Therefore, in so far as the 5th applicant makes this application in his personal capacity, there is plainly a lack of sufficient interest in the subject matter of the judicial review application."

7.The judge, however went on to consider the further argument raised on behalf of the respondent that the provisions of section 11 of the Hong Kong Bill of Rights Ordinance, Cap. 383 prevented the 5th applicant invoking Article 141 of the Basic Law and that Article 154 of the Basic Law permitted immigration controls on entry into, stay in and departure from the HKSAR by persons from foreign states and regions. However, the judge considered that these points were arguable and should be left to any substantive hearing.

8.Before considering the matter further I would point out that the application for leave to bring judicial review proceedings is a filtering, or perhaps more accurately a sieving, exercise. Our attention has been drawn to a number of authorities with specific reference to the question of the extent of the interest that an applicant needed to show at the application stage. In Regina v Monopolies and Mergers Commission, ex parte Argyll Group PLC [1986] 1 WLR 763 at page 773, Sir John Donaldson MR adopted the phraseology of Lord Diplock in the case of Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 when he used the expression meddlesome "busybody". As is made quite clear by these authorities the leave stage is not intended as a place for sustained argument. Lord Diplock put it at page 644A:

"If, on a quick a perusal of the material then available, the court thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for that relief. The discretion that the court is exercising at this stage is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application."

9.In this case it appears to me that the 5th applicant is very far from being a meddlesome busybody. He has a clear and undisputed interest in the matters raised. As chairman of the 6th applicant and as a person who is a member of Falun Dafa and was heavily engaged in organising the conference, he clearly has a sufficient interest shown at this stage for the matter to proceed. The evidence from the applicants is clearly a sound basis for the assertion that the reason for the refusal of entry of the 1st to 4th applicants was to prevent them attending the conference. The rough and uncivilised treatment to which the 1st to 4th applicants have deposed to receiving at the airport, is an aggravating factor, which might be interpreted as an attempt to discourage them and other members of Falun Dafa from attending similar conferences in the future. The evidence, as has already been said, indicates that the claim is made that Falun Gong is a religion.

10.In relation to the arguments based on section 11 of the Hong Kong Bill of Rights Ordinance, it appears to me that it is at least arguable at this stage that the rights claimed by the 5th and 6th applicants are based upon the Basic Law and not upon the Bill of Rights. Any restriction in the Bill of Rights cannot affect separate rights under the Basic Law. Insofar as it is said that other articles of the Basic Law, for example Article 154 or Article 39 would preclude the 5th and 6th applicants from asserting any rights in the present situation based on Article 141, the matter is very far from clear and, in my view, such arguments would fall to be considered on the full hearing.

11.No objection was taken on the part of the respondent to the joinder of the 6th applicant and in view of the reasons given for allowing this appeal in respect of the 5th applicant and in light of R v Traffic Commissioner for the North-Western Area ex parte Brake [1996] COD 424 the joinder of the 6th applicant would appear to be entirely appropriate.

Hon Le Pichon JA:

12.I agree.

Representation:

Mr Paul Harris and Ms Vivian To, instructed by Messrs Ho, Tse, Wai & Partners, for the 5th Applicant/Appellant

Mr Daniel Fung SC and Mr Johnny Mok, instructed by Department of Justice, for the Respondent/Respondent