Epoch Group Ltd v. Director of Immigration
Read the full judgment text of HCAL 43/2010 on BabelCite. This High Court CFI judgment was delivered on 9 March 2011.
1. The applicant, a company registered locally, is involved in the activities of Falun Gong in Hong Kong and, in particular, with the activities of the Hong Kong Association of Falun Dafa. The Hong Kong Association of Falun Dafa is the organisation which represents local Falun Gong followers of whom, it is said, there are about 500. Mr Kan Hung Cheung is the chairman of the board and the president of the applicant. He is also the chairman of the Hong Kong Association of Falun Dafa.
Cited by 4 cases · Cites 4 cases
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HCAL 43/2010 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 43 OF 2010 ____________
Before: Hon Andrew Cheung J in Court Dates of Hearing: 24 and 25 January 2011 Date of Judgment: 9 March 2011 _______________ J U D G M E N T _______________ Facts 1.The applicant, a company registered locally, is involved in the activities of Falun Gong in Hong Kong and, in particular, with the activities of the Hong Kong Association of Falun Dafa. The Hong Kong Association of Falun Dafa is the organisation which represents local Falun Gong followers of whom, it is said, there are about 500. Mr Kan Hung Cheung is the chairman of the board and the president of the applicant. He is also the chairman of the Hong Kong Association of Falun Dafa. 2.The applicant publishes a newspaper, the Epoch Times, and is involved in the organisation of many public activities in Hong Kong usually involving Falun Gong adherents. These activities include performing arts events. 3.In 2009, the applicant invited Shen Yun Performing Arts to give 7 shows in Hong Kong. The shows were scheduled for 27 to 31 January 2010, and the Lyric Theatre of the Hong Kong Academy of Performing Arts was booked as the venue for the shows. 4.Shen Yun is based in New York. It was founded in 2006, and according to the materials placed before the Court, its annual audiences increased from 200,000 in that year to 800,000 in 2009. Shen Yun now considers itself to be the world’s premier Chinese dance and music company. According to Shen Yun, it seeks to revive Chinese classical and traditional dance and music traditions while producing entirely new programmes of dances, songs and musical scores. Its choreography and routines range from “grand processions to ethnic dances with dancers moving in synchronized patterns”. A feature of the performances, according to the evidence, is the “state-of-the-art digital backdrops, often animated, and designed to match the story line, lighting and choreography of particular dancers” (Form 86, para 10). 5.According to materials supplied by Shen Yun and the applicant, Shen Yun conducts annual world tours and has been invited to perform in some 100 cities around the world. Venues in which it has performed include the Royal Festival Hall in London, the John F Kennedy Center in Washington and the Palais des Congrès in Paris. 6.The planned shows were publicly announced at a press conference on 4 October 2009. They were jointly presented by the applicant, the Hong Kong Association of Falun Dafa, New Tang Dynasty Television and Ms Vina Lee of Shen Yun. Public ticket sales opened on 2 December 2009 and apparently all 7 shows were sold out within several days. 7.From 13 October to 1 December 2009, the applicant submitted to the Immigration Department a total of 95 employment visa applications on behalf of members of Shen Yun to take part in the shows. 69 applications were submitted on 13 October 2009 at a meeting between 3 representatives of the applicant and 2 immigration officers. Another batch of 16 applications was submitted on 4 November 2009. A third batch of 8 applications was submitted on 11 November 2009. The last batch of 2 applications was submitted on 1 December 2009. 8.On 7 and 19 January 2010, 2 applications were withdrawn respectively. As a result, the total number of employment visa applications made was 93. All of them were applications for entry for employment as professionals in Hong Kong. 9.Pausing here, it is necessary to point out that whilst there are many policies and guidelines published by the Director of Immigration governing various categories of foreigners (aliens) seeking permission to enter Hong Kong, none of them provide for a specific category to cater for travelling performing groups, such as dance troupes, orchestras, choruses, opera companies, musical companies and pop music groups. Nor, for that matter, is there any specific category to deal with sports teams. The Director’s practice and policy is to require members of a travelling performing group to apply “for entry for employment as professionals in Hong Kong”. They may do so under one of the three available schemes, namely, the Immigration Arrangements for Non-local Graduates (IANG); General Employment Policy (GEP); and Admission Scheme for Mainland Talents and Professionals (ASMTP). All three schemes are quota-free and non-sector specific. They are applicable to talents and professionals in, amongst other sectors, the arts, culture and sport sectors as well as those in the culinary profession. Furthermore, the GEP and ASMTP schemes are both applicable irrespective of the duration of employment. 10.Under the existing policy, applicants (other than Chinese residents of the Mainland) who are not “non-local graduates” but “possess special skills, knowledge or experience of value to and not readily available in Hong Kong” may apply to come to work under the GEP scheme. The application would be favourably considered if:
11.According to the evidence filed on behalf of the Director, in processing applications to admit individual members of an overseas performing arts troupe to perform in Hong Kong, the Department of Immigration would need, amongst other things, information on the background of the performance group, the nature and characteristics of the shows intended to be given in Hong Kong, the venue arrangements and the financial arrangements of the sponsor, so as to establish whether the invitation of an overseas performing arts troupe with expatriate members to give shows in Hong Kong is justified. Furthermore, each individual application also needs to be considered on a case-by-case basis in accordance with the prevailing immigration policy and established procedures including, amongst other things, consideration of the individual applicant’s educational background, relevant working experience, details of the position and role(s) of the individual in the show. 12.As mentioned, the applications, which were all made under the GEP scheme, were submitted from 13 October to 1 December 2009. Following further meetings and contacts by telephone and correspondence, supplementary information and supporting materials were requested for and supplied in relation to the applications. To cut a long story short, by a letter dated 30 December 2009, the Director informed the applicant that 5 applications had been approved. By another letter dated 31 December 2009, the Director informed the applicant that another 5 applications had been approved. By further letters dated 18, 19 and 20 January 2010, the Director informed the applicant that another 40, 28 and 8 applications respectively had been approved. However, on 21 January 2010, the Director by letters rejected the applications of 7 individuals. One of them (Mr Xu’s) was approved on the following day upon reconsideration by the Director. But not so with the remaining 6. Upon 2 reconsiderations, the Director maintained his refusals of the 6 applications. The 6 individuals involved were Mr Deng Yu (“audio engineer”); Mr Tsai Chia Hwa (“production staff – lighting”/“lighting engineer”); Ms Li Ai Ni (“projection engineer”); Mr Brian Nieh (“dancer/audio assistant”); Mr Liu Mingye (“dancer/audio assistant”) and Mr Mark Simon Abbott (“dancer/projector assistant”). 13.It should be noted that with the exception of Mr Xu, a stage/production manager, the 87 individuals whose applications had been approved by the Director were all dancers/musicians or other stage personnel of Shen Yun. Only the 6 individuals whose applications were refused were related to backstage work. According to the applicant and Shen Yun, without these key individuals, the shows could not be performed and as a result, it was impossible, it is said, for the show tour in Hong Kong to go ahead. The shows were cancelled and steps were initiated to refund the ticket sales, which apparently exceeded $5 million. Application for judicial review 14.The applicant, as the promoter or joint organiser of the shows, and the “sponsoring employer” of the 6 individuals whose applications were refused, now challenges the Director’s refusals of the 6 applications on a number of grounds, namely, irrationality; failure to have regard to relevant considerations; failure to give adequate reasons; unfair procedure and illegality (delay); legitimate expectation (since abandoned); and breach of article 34 of the Basic Law (“freedom to engage in … cultural activities”). The grounds relied on, apart from the last ground based on the Basic Law, are essentially conventional public law grounds. In particular, the first two grounds are based squarely on Wednesbury unreasonableness. The case as presented by the applicant at the substantive hearing has little if anything to do with the Falun Gong background of this case. Reasons for the refusals 15.In order to understand the grounds of challenge and the issues involved, it is necessary to go into the reasons for the Director’s decisions under challenge. The initial refusals were made on 21 January 2010. By a letter dated 6 January 2010, Shen Yun had explained to the Director the various roles to be played by the 6 individuals concerned:
16.The letters of refusal were very brief. They were almost identical in content. The letter of refusal relating to Mr Deng’s application, for instance, read:
17.The internal minutes of the Immigration Department relating to the refusal were more informative:
18.The internal minutes relating to Mr Tsai (production – lighting) and Ms Li (projection engineer) were similar in content, save that in relation to Ms Li, an additional consideration for rejecting her application was mentioned in the minutes:
19.In relation to the remaining 3 individuals who performed dual role, the content of the relevant internal minutes was similar. Thus, for instance, in relation to Mr Brian Nieh (dancer/audio assistant), the relevant internal minutes read:
20.After notification of the initial refusals, the applicant, on behalf of the individuals concerned, sought a reconsideration by the Director of his refusals. This was supported by, amongst other things, a letter dated 21 January 2010 from the applicant to the Director. It said:
21.The letter contained further information regarding the individuals’ roles in the shows:
22.On the following day (22 January 2010), the applicant supplied to the Director further reasons in support of the request for reconsideration:
23.On the same day, the Director maintained his refusals upon reconsideration. In each of the letters informing the applicant of the results, the Director wrote:
24.In other words, no additional reasons were given for maintaining the refusals. 25.The internal minutes of the Immigration Department simply noted the grounds for the initial refusals and the additional information/documents submitted in support of the request for reconsideration, and stated that “on the basis of the available information and documents, there is no justification for us to grant entry/employment visa to the applicant”. According to the minutes, “there is no change in substance of the application which warrants a reversal of our previous decision.” 26.As mentioned, there was a request for a second reconsideration. It was made on 22 January 2010. No fresh material was supplied in support of the second request. It was refused on the following day. The letters of refusal, all identical in content, stated that the Director could not find any reason or justification for reversing his earlier decisions. The internal minutes relating to each application also stated that there was no change in substance of the application which would warrant a reversal of the previous decision. 27.In the evidence filed in these proceedings, what was said at the meeting held on 21 January 2010, when the initial refusals were conveyed to the applicant’s representatives, was recounted:
28.In relation to the first reconsideration, the evidence filed on behalf of the Director stated:
29.As regards the second reconsideration, the evidence filed on behalf of the Director read:
Counsel’s arguments 30.Mr Paul Harris SC, appearing for the applicant, submits, in relation to the first two grounds of challenge, that the nature of a touring performing dance troupe is that its members rehearse together before they arrive at their tour destination. The jobs of those who rehearse together cannot realistically be filled by recruiting replacements locally when they arrive for their tours, nor by sending Hong Kong recruits to rehearse with them overseas. The knowledge of the performance which the performing troupe has is the collective knowledge required to produce a properly choreographed performance. Senior counsel emphasises that these points are so obvious that they do not really need spelling out, but they were in fact set out in relation to Shen Yun and the present case in the letters referred to above. Mr Harris also stresses that the Director was aware that the troupe had very few production staff and that, by refusing those individuals whom he refused, he was depriving the troupe of its entire production staff except the production manager. 31.Mr Harris argues that the decision to refuse all production staff except the production manager on the ground that they can be replaced by local recruits, ignores the simple but obvious fact that being able to operate the lighting, sound effect or backdrop for a stage event is not just a matter of knowing how to operate them, but is also a matter of knowing when to operate them. Knowing when to operate them, it is said, can only be achieved by rehearsing together with the dancers and knowing extremely well the sequences of the performances they are to perform. Mr Harris also submits that the Director has drawn no distinction whatsoever between a person seeking entry for residence in Hong Kong for employment purposes and a person seeking to visit for a few days as a member of a visiting arts troupe. No account has been taken of the special characteristics of visiting performing arts troupes, including in particular the short duration of their stay in Hong Kong and their need to rehearse together as a group before arrival in Hong Kong. 32.Mr Harris therefore argues that the refusals were irrational and the Director has failed to have regard to all relevant considerations. 33.As regards the third ground of challenge (inadequate reasons), Mr Harris argues that the stated reasons (not the reasons set out in the internal minutes) were not really reasons but just mere statements of the applicable policy. They were unhelpful and deprived the applicant of a meaningful reconsideration by the Director of the initial refusals. 34.Mr Johnny Mok SC, for the Director, argues that the Director has a wide discretion to exercise, and the courts, in accordance with the relevant case law, do not lightly interfere with either his policy or his exercise of discretion in accordance with his policy. Mr Mok submits that unless the Director’s decisions can be described as perverse, they should not be disturbed. He accepts that in relation to members of a performing group, the eligibility criteria set out in the relevant guidebook have to be applied flexibly, particularly in relation to those performing on stage. However, in relation to the production staff, counsel argues that the Director’s decisions cannot be challenged as being perverse. In his written submissions, Mr Mok has also drawn attention to various unsatisfactory aspects in relation to the materials submitted by the individuals in support of their applications. 35.As regards reasons, Mr Mok’s fundamental point is that in immigration matters, the Director is, as a matter of law, not obliged to give any reasons at all for his decisions. If he is minded to give reasons, he is not obliged to reveal all the reasons. He can give some reasons and withhold others. Mr Mok relies on Chu Woan Chyi v Director of Immigration HCAL 32/2003, 23 March 2007, Hartmann J, paras 60 to 71 (and the cases cited therein) in support of his propositions. General principles 36.It is of course true, as this Court has recently reiterated in MA v Director of Immigration HCAL 10/2010, 6 January 2011, a case relied on by Mr Mok, that generally speaking, the courts will not lightly interfere with the Director’s policies or exercise of discretion. The courts recognise that in the light of Hong Kong’s small geographical size, huge population, substantial daily intake of immigrants from the Mainland, and relatively high per capita income and living standards, and given Hong Kong’s local living and job market conditions, almost inevitably Hong Kong (through the Director) has to adopt very restrictive and tough immigration policies and practices. This approach reflects not only the general limitation on the courts’ supervisory jurisdiction under conventional public law, but also represents an acknowledgment on the part of the courts that the legislature has entrusted the Director with very wide discretions in performing the unenviable task of manning Hong Kong’s immigration controls. Further still, the courts recognise that under the Basic Law, it is the executive which has been given the right and the responsibility to administer the affairs in Hong Kong generally. Article 154(2) of the Basic Law specifically authorises the Government to apply immigration controls on entry into, stay in and departure from Hong Kong by persons from foreign states and regions. The role to be played by the courts is essentially supervisory in nature. See paragraph 97 of the judgment. 37.All this, however, does not mean that the decisions of the Director are beyond the control of the courts. Within bounds, the Director is free to exercise his various powers and discretions as he and his officers see fit. Nonetheless, general principles of public law still govern the Director’s decisions and decision-making process, just as they govern those of other decision-makers. 38.In particular, in making a decision, the Director has to take into account all relevant considerations and disregard all those that are not relevant. His decision must not be unreasonable (in the public law sense), perverse, irrational, arbitrary or unlawful, nor can it be motivated by bad faith. 39.Moreover, the decision-making process must be fair. In its classic formulation, unreasonableness in the public law sense, or Wednesbury unreasonableness, refers to a decision that is so unreasonable that no reasonable authority could ever come to it: Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223, 229 to 230. There have been recent attempts to reformulate the Wednesbury unreasonableness test which it is not necessary in this judgment to go into: see de Smith’s Judicial Review (6th ed) paras 11-018 to 11-024 and in particular, para 11-024. 40.There is no objection to a decision-maker, who is entrusted with wide discretions, to formulate and apply guidelines in relation to how he would exercise his discretions: Wise Union Industries Ltd v Hong Kong Science and Technology Parks Corp [2009] 5 HKLRD 620, paras 31 to 33 and the authorities cited therein. However, the decision-maker must not fetter his discretion. Describing the last point from a different perspective, when a decision-maker allows his guidelines to blind him from matters and circumstances which he ought to have regard to before deciding how to exercise his discretion, he fails to take into account all relevant considerations. Guidelines are what they are. They constitute “guidance and not tramlines”: R v Wakefield Metropolitan District Council, ex parte Pearl Assurance Plc [1997] EWHC (Admin) 228, para 9, per Jowitt J. They must not be allowed to preclude the decision-maker from departing from them or from taking into account relevant circumstances and merits of the case in question. Applying the principles to the facts 41.Bearing these general principles in mind, I would approach the issues raised in these proceedings as follows. 42.It is plain that the Director’s guidelines governing entry for employment as professionals in Hong Kong (the GEP scheme) are ill-suited to deal with applications for entry by members of a travelling performing group to perform in Hong Kong for a short duration only. Unquestionably, the guidelines are directed at those who wish to seek the Director’s permission to enter and stay in Hong Kong for the purposes of taking up employment or otherwise working here as professionals. After all, GEP, it should be recalled, stands for “General Employment Policy”. Thus the guidelines refer to the applicant’s possessing “special skill, knowledge or experience of value to and not readily available in the HKSAR”. They require the applicant to have a “good education background” or, in special circumstances, “good technical qualifications, proven professional abilities and/or relevant experience and achievements supported by documentary evidence”. More importantly, one needs to demonstrate that “there is a genuine job vacancy” in Hong Kong and the applicant has to have a confirmed offer of employment and is employed in a job “that cannot be readily taken up by the local work force”. Moreover, the applicant’s remuneration package has to be “broadly commensurate with the prevailing market level for professionals in the HKSAR”. 43.All this makes perfect sense when one has in mind an applicant seeking permission to come to Hong Kong to reside and work for a local employer. But the requirements become inapposite when one is concerned with, for instance, a pop music band, a singing group, a ballet company or a professional football team from overseas seeking permission to come to Hong Kong to give one or several performances during a short period of stay, or, as the case may be, to take part in a football tournament. It is, in those cases, not quite meaningful to speak in terms of whether the visa applicant really possesses special skills, knowledge or experience of value to and not readily available in Hong Kong; neither is it quite sensible to ask whether what he or she seeks to do in Hong Kong “cannot be readily taken up by the local work force”. Nor does it make sense to compare his remuneration for his performances in Hong Kong with that offered to local artists, or, football players. 44.Carried to extreme, the guidelines would mean that unless, for instance, a violinist in an overseas orchestra is of such skill and experience that is not readily available in Hong Kong, he could not be allowed in as a member of an orchestra invited to perform in Hong Kong for one or two nights. Likewise, unless an overseas footballer can demonstrate that his skills are superior to that of all footballers in Hong Kong, he cannot be allowed in as a team member of his club invited to come to Hong Kong to participate in an international tournament or a friendly match. These (hypothetical) examples can be easily multiplied. 45.Fortunately, none of these happen in real life. In practice, and this has been confirmed by Mr Mok, this is not how the Director or his officers would apply his guidelines. Apparently, the Director recognises the self-evident value of cultural and artistic exchanges and international sports activities, and, according to Mr Mok, the Director applies commonsense in applying and adopting his guidelines when dealing with the sort of application just described. Take the present case as an example. The fact that all the dancers and musicians belonging to Shen Yun have been given entry visas does not mean that in the Director’s view, they or anyone of them necessarily possesses “special skills, knowledge or experience of value to and not readily available in the HKSAR”. The Director was not saying, when granting the visas, that he had been satisfied that no other local dancers or musicians in Hong Kong could dance or play their instruments as good as these overseas dancers and musicians after rehearsal. The Director recognised, counsel submits, that he was dealing with applications by members of a dance troupe from overseas, which had been invited to come to Hong Kong to give 7 shows only. He understood that after the shows, the entire group would depart Hong Kong, none of its members would stay behind to work here, and during their short stay in Hong Kong (planned for 10 days only), none of them would work in Hong Kong other than to give the shows. 46.In my view, this is the correct approach to take. As I see it, first, there is no obligation on the part of the Director to devise a separate scheme or category of visitors to specially cater for visiting performing groups and their members, or for that matter, visiting sports teams. Whilst it is desirable to have guidelines in the case of wide discretion, it remains a matter for the decision-maker to decide whether he should have guidelines. 47.Secondly, a court cannot force the Director to have guidelines, still less can it tell the Director what the content of the guidelines should be. 48.Thirdly, it is perfectly legitimate for the Director, in the absence of specific guidelines to deal with a particular category of visa applicants, to process each application on its individual merits. He need not force the application into any existing categories and apply guidelines designed for those categories to the application. 49.Fourthly, if the Director chooses to decide the visa application on its own merits without forcing it into any exiting categories, he must of course take into account all relevant considerations and disregard all those that are not relevant. Amongst the relevant considerations that should be taken into account are two that merit specific mention on the facts of the present case. First, the distinct value of cultural and artistic exchanges and activities (and international sports activities) to society generally, a matter not disputed by counsel. Second, the unique fact that the individual visa applicant is, unlike any other individual employment visa applicant, actually applying to come in as member of a visiting cultural or arts performing group (or sports team) invited to Hong Kong to perform or otherwise take part in a cultural or artistic (or sports) activity or exchange for a very short duration of time. Each visa applicant is and forms part of the whole, and the whole is more than the sum of its parts. 50.Fifthly, if, on the other hand, the Director chooses to apply guidelines or criteria designed for some broad category of application to the visa application, he must take care in applying those guidelines or criteria, lest he may apply them too rigidly, resulting in his failing to take into account considerations that are relevant and peculiar to the type of application in question, or in his taking into account considerations that are not relevant. In particular, he must not allow those guidelines or criteria to blind him from or otherwise obscure the two considerations specifically mentioned in the preceding paragraph. 51.In my view, the whole case essentially turns on this last point. Discussion on the facts 52.As described, the Director has applied his relevant GEP guidelines to the 87 dancers, musicians and other miscellaneous stage personnel whose applications he has approved sensibly and flexibly in accordance with the last point made. As Mr Mok puts it, the Director did not require these 87 members to seriously prove that their artistic or musical skills were such that they were not readily available in Hong Kong. The Director recognised that they were coming in as a dance troupe, and they were to dance in Hong Kong onstage as a group or to play the relevant music accompanying the dances as musicians forming part of the group. The fact that there may be (or may well be) local dancers or musicians who after rehearsal can dance or play their instruments as well as, or even better than, these dancers and musicians from Shen Yun, would be quite beside the point. I have no difficulty with the Director’s approach in relation to these dancers and musicians whatsoever. 53.However, when it comes to the backstage or production personnel of Shen Yun, the Director has apparently lost sight of this important point. 54.In this regard, it is important to remember that a group is a group. Whilst there are, by definition, different roles to be played by different members and naturally there would be a division of labour amongst members of the same group, they together make up and form the group. Moreover, as mentioned, the whole is more than merely the sum of its parts. It is as incongruous as it is impertinent for a local organiser to just invite part of the group to come to Hong Kong to perform on the ground that the rest of the group can be replaced by locals, and in any event, one wonders how many travelling performing groups of any reputation would be prepared to accept such an invitation. Given the essential character of a group, what is important is not so much whether an individual member’s role can be readily taken over by an outsider, but rather whether the role in question forms an integral part of the group or its performance. 55.In my view, therefore, the considerations that apply to stage performers and musicians comprising the performing group apply similarly to backstage or production personnel of the group who play an integral role in the group or its performance. I have used the word “integral” here because certainly, there may be jobs within the performing group that can be easily done by anyone without affecting materially the integrity of the group as such. If a group employs a tea lady to serve refreshments to its members, then in all but the most exceptional of cases, one would not consider the tea lady as somebody other than of peripheral significance to the group, and the Director would be quite entitled to consider her application for entry accordingly. A more marginal case would be a cook employed by the group. Depending on the facts, the Director would have to make up his mind as to how he should exercise his discretion and what considerations are relevant and what are not. 56.Illustrating my point further, assume one has an overseas football club invited to come to Hong Kong to participate in a tournament, and the club wishes to bring in not only the footballers, the manager and the coach, but also its medical doctor, physiotherapist, masseur, cook and accountant (to handle the gate receipts), it would be up to the Director to decide, amongst other things, whether any of these individuals perform an integral role in the football club even though they do not play on the field, or whether he or she just plays a peripheral role in the club, and decide the applications for entry accordingly. 57.There can be no hard and fast rule. But one thing is clear. The Director has to bear in mind all considerations that are relevant, including the two that have been specifically mentioned in the preceding section of this judgment, and should ignore all those that are not. Moreover, if he applies guidelines that are meant for a broad or even different category to the applications in question, he must be careful in doing so, lest he may ignore some relevant considerations or take into account others that are irrelevant. What he should not do, reverting to the examples given above, is to reject the applications simply on the ground that there is an abundant supply of qualified medical doctors, physiotherapists, masseurs, chefs and accountants in Hong Kong, just as he should not refuse the entry of the goalkeeper or reserve goalkeeper of the foreign club to Hong Kong on the ground that there are many excellent local goalkeepers available to play for the team in the relevant games. To do so would be to miss entirely the point of having an international sports event in the first place. In my view, the same considerations apply to an international cultural event. 58.Whether a member plays an integral or peripheral production role in the group is a matter for the Director to decide. In accordance with general principles, the Court would not lightly interfere with any such decision. However, in deciding that question, one does not focus on whether the individual’s job can be filled by local people. That is not the focus. The focal point here is whether, to the group, the individual performs an integral role and carries out production duties important to the performance in question, in whom the group reposes trust and confidence. To ignore such a question or to focus on whether the role or duties could be readily filled locally is to fail to take the relevant consideration into account. 59.In this regard, the group’s own assessment and belief must be given due weight. 60.Furthermore, where, as here, the performing group informs the Director that the individual has been involved in rigorous rehearsals with the rest of the group, that must be a highly relevant matter to bear in mind in assessing whether the individual plays an integral production role important to the performance, regardless of whether his duties, skill or knowledge can be readily filled or matched by some local people. 61.I am, of course, restricting the Court’s reasoning and observations here to the situation where a performing group is invited by some local promoter to come to Hong Kong to perform over a short duration only. The production personnel 62.The problem with the Director’s decisions in relation to the applications of the 3 production personnel involved in the present case (namely, Mr Deng, Mr Tsai and Ms Li) is that he has apparently focused on the wrong questions. I will not repeat the reasons given by the Director’s officers in the letters of refusal, or the more detailed reasons set out in the internal minutes, or the relevant part of the evidence that has been given on his behalf in these proceedings. They have been set out in the earlier part of this judgment. It is plain from those materials that the Director has throughout concentrated on whether the 3 production personnel “possess a special skill, knowledge or experience of value to and not readily available in the HKSAR”; and “whether the job can be filled locally and whether it is justified for the employer to bring in an expatriate staff”. These were the reasons given in the letters of refusal of 21 January 2010. For reasons given above, these were questions that did not quite address the specific characteristics of a visiting performing group and its members, in the context of their seeking permission to come to Hong Kong to give a few shows. These questions overlooked and indeed obscured the much more pertinent question of whether the individual visa applicant played an integral production role in the performances of Shen Yun and his or her application should, therefore, like that of the dancers, be favourably considered, or whether the individual merely played a peripheral role in the shows. In this regard, the subjective assessment of Shen Yun itself must carry significant weight. Just as in the case of an overseas orchestra, where one does not ask whether there are no violinists or cymbals players in Hong Kong who are skilful and experienced enough and are readily available to replace any of the violinists or the cymbals player employed in the orchestra, one should not, in the present context, be bogged down by whether a production member’s duties cannot be competently performed by a local person. 63.The more detailed reasons revealed in the internal minutes suffered from the same focusing problem. They spoke of whether “the knowledge, experience and skills” required for the job were not “readily available in Hong Kong”, and whether there was a “lack of local supply” of technical staff to replace the individuals in question. In the evidence filed, it is clear that the oral explanations given to the applicant on 21 January 2010 again centred on whether the individuals’ jobs could be “filled locally” and whether they possessed “a special skill, knowledge or experience of value to and not readily available in Hong Kong”. The evidence also explained that “the Director was not satisfied that [the individuals] met the eligibility criteria for entry to Hong Kong for employment under the GEP”, and he therefore decided to maintain the refusals in the two reconsiderations. 64.In short, the Director ought to have considered, in each application, whether the individual concerned played an integral production role in the performances of Shen Yun, and in this regard, he ought to have given Shen Yun’s own assessment its proper and due weight; and if the answer was in the affirmative, the Director ought to have taken that consideration seriously into account, together with the fact that he was dealing with a performance group seeking to come to Hong Kong to perform in a few shows only, when deciding whether he should allow the individual concerned to come to Hong Kong for that particular purpose only. He should, of course, also bear in mind, amongst other considerations, the general value of cultural and artistic activities and exchanges. 65.In the present case, at least according to Shen Yun and the applicant, the lighting and sound personnel were of essential significance to the shows that Shen Yun was invited to perform in Hong Kong. Amongst other things, they were required, during the show, to follow the dance and music changes in the programmes and control all the changes in lighting and sound to make every action on stage in agreement with their meaning and design. In other words, as Mr Harris has put it, it was not simply a matter of being able to operate the lighting, sound effects or backdrop, but also a matter of knowing when to operate them, and that knowing when to operate them could only be achieved by rehearsing together with the dancers and knowing extremely well the sequences of the performances they were to perform. 66.The internal minutes show that the Director’s officers paid very little attention and gave almost no weight to the information and clarification supplied by the applicant after the initial refusals regarding the various roles that the individuals in question were to play in the shows. Rather, the officers treated them as “bare assertions” from the applicant. In my view, clarification coming straight from Shen Yun (through the applicant), the very performing group in question, could not be regarded simply as bare assertions. In the absence of any suggestion that Shen Yun is anything other than a genuine and reputable dance group with an impressive record (or that the applicant has misrepresented any matter relating to Shen Yun), the officers should have given the clarification and explanations from Shen Yun their due weight. They could not be ignored as such. 67.It is to be remembered that of the 93 applications made, apart from one production manager, the 6 individuals involved were the only people involved in the production side of the shows. In particular, Mr Deng, Mr Tsai and Ms Li were the only full time production personnel of Shen Yun who were applying for entry. This fact alone would tend to suggest that their roles in the performances were of some significance. 68.In my view, the Director and his officers have, unfortunately, allowed themselves to be bogged down in the eligibility criteria under the GEP guidelines, which, as mentioned, are not primarily designed to deal with visiting performing groups, when deciding the applications of the 3 production personnel. 69.It is true that in the internal minutes, the Director’s officers doubted Ms Li’s claimed qualifications and experience. In itself, that was a valid consideration that the Director was fully entitled to take into account. However, this fact alone does not detract from the fact that in determining Ms Li’s application for entry, the Director had focused on the wrong questions. It is not the Director’s case in these proceedings that irrespective of the focusing problem, the application of Ms Li was doomed to fail because of the doubt over her qualifications and experience. After all, Shen Yun has itself written in to confirm that Ms Li has taken part in over 100 shows as its projection engineer. Perhaps more telling is the fact that this doubt over Ms Li’s qualifications and experience did not even feature in the letter of refusal as a reason, let alone a primary one, for rejecting her application for entry. 70.For similar reasons, although Mr Mok has in his written submissions referred to various doubts over the respective qualifications and experiences of the 3 production individuals involved, with the exception of Ms Li’s case, none of the doubts featured in the initial refusals, the internal minutes or the evidence filed in these proceedings, as reasons for rejecting the individuals’ applications. Whilst I fully accept that the Director was entitled to take them into account, and one should proceed on the assumption that the Director did take those doubts into account, this does not, at the end of the day, make any difference to the result, given the serious focusing problem that the decision-making process suffered from. The dancers with dual role 71.As regards the 3 dancers with dual role, in essence, the Director refused their applications on the ground that their production duties could be readily taken up by local technical staff. In the minutes, a further reason was mentioned, which was not stated in the refusal letters, namely, that the Director was not satisfied that the 3 individuals would be capable of performing their dual role. 72.As to this last point, I believe it has been sufficiently addressed in the information supplied after the initial refusals. As mentioned above, it was clarified that the individuals were full time dancers, they would only help production staff as assistants during the set up period before the shows. During the shows, they would be no different from other full time dancers. The clarification by Shen Yun (through the applicant) should, for reasons explained, have been given due consideration. 73.In my view, putting aside their separate roles as dancers, the Director was perfectly entitled not to be satisfied that the 3 individuals played anything other than a peripheral production role in the shows. Indeed, this is quite plain from the applicant’s own clarification supplied after the initial refusals. 74.However, this is not the end of the matter. This is because the 3 individuals also applied to come in as full time dancers during the shows. This part of their duties in the group could not be brushed aside without considering whether they really were full time dancers in the shows, and therefore played integral roles in the shows as stage performers, just like the other dancers and musicians who were all allowed in. The fact that they, if allowed to, would also perform some peripheral production duties that could be filled by others, does not detract from the fact that they were applying to come in also as full time dancers playing integral stage roles. I see nothing in the doubt as to whether one of them (Mr Brian Nieh) was a “lead dancer” – a claim made in the materials supplied after the initial refusal. Irrespective of whether he was a lead dancer or not, there is no suggestion that he was not a dancer to perform in the shows. It has to be remembered that all the dancers, whether they be lead dancers or supporting dancers, were allowed in. The same rationale must apply to these 3 individuals. 75.It would have been perfectly open to the Director to impose a condition to allowing these 3 individuals’ entry to the effect that they could not perform any production role whether before, during or after the shows. Or, put the other way, they could only come in as dancers. However, it is plain from the refusal letters, the internal minutes and the evidence filed in these proceedings that this option was never considered by the Director or his officers. 76.For these reasons, unfortunately, I take the view that the Director and his officers have failed to take into account relevant considerations. Conclusion 77.It would not lie in the mouth of the Director, and I hasten to add that it is not the case of the Director, that the individuals concerned had applied under the wrong scheme and therefore had themselves to blame when the Director applied the eligibility criteria under the GEP scheme to their cases. 78.As mentioned, there was no other applicable scheme under which the applicants could have made their applications. The GEP scheme is the normal scheme under which performing groups apply for entry visas. Moreover, there have been many contacts between the applicant and the Director’s officers, in none of which it was ever suggested that the individuals were applying under the wrong scheme or there was a more suitable scheme or category under which they could make their applications. Nor is that suggested in the evidence filed in these proceedings. 79.For the reasons given above, the Director’s decisions are challengeable and prima facie, they should be quashed. I recognise that the decisions related to a one-off event, but that alone, on the facts of the present case, is an insufficient reason not to quash the decisions. Mr Mok has not contended otherwise. Adequacy of reasons 80.Given my conclusion, I do not need to go into the question of adequacy of reasons. As mentioned, Mr Mok has argued, by reference to authorities, that the Director is under no duty to give any reasons for his refusals. And if he decides to give some reasons, he is not obliged to provide all reasons. Mr Mok accepts that this does not mean that the Director need not have any or any proper reasons for his decisions: Chu Woan Chyi v Director of Immigration [2009] 6 HKC 77, para 16. 81.To put the argument in context, it has been Mr Harris’ argument that the initial refusals only gave fairly general reasons that were nothing more than a recitation of the eligibility criteria in the guidelines. No substantive reasons were supplied. The more substantive reasons, counsel argued, were only found in the internal minutes and in the evidence filed in these proceedings. 82.I recognise the force of the authorities relied on by Mr Mok. Although I can readily see some potential distinctions between the situations faced by the courts in these authorities and the instant type of situation, I have not heard detailed arguments on them and the possible distinctions that one may make. Given my conclusion above, it is quite unnecessary to rely on the present ground of challenge to decide this case. In those circumstances, I do not propose to address further the relevant law here, or to rely on the present ground in support of the conclusion that I have already reached. Delay 83.That leaves two further grounds of challenge, namely delay and article 34 of the Basic Law. 84.In relation to delay, all I would say is that it is unnecessary for the Court to rely on this ground in support of its conclusion. It is a highly fact-sensitive point. I note from the evidence that the Director’s officers had been most helpful in relation to the applicant’s applications, and many documents and information had indeed come late. The Director was faced with a sizable number of applications, and had a practical deadline to meet. 85.I do not think this question of delay or alleged delay would by itself be sufficient to found a case against the Director. Article 34 86.Finally, as regards article 34, I am, for the following reasons, reluctant to base my decision on this ground or to express any definite view on the article. 87.Article 34 has not been judicially interpreted. As Mr Harris submitted, one is on virgin territory. With due respect to counsel, the Court has only heard very general submissions on the true interpretation of the article. For his part, Mr Mok has argued that the article is not engaged at all because it does not give Hong Kong residents a constitutional right to any particular performance as such. The article would only be engaged if the Government were to, for instance, ban performing groups playing a particular type of music from visiting Hong Kong. On the other hand, Mr Harris has submitted that not only do Hong Kong residents have a right to cultural activities and performances in Hong Kong so that any interference with such a right would engage article 34 (subject to the proportionality test), but the Government also has a positive duty to facilitate residents to enjoy that right. 88.These are submissions of general significance. I am reluctant to go into these matters without the fullest assistance. It should also be noted that article 34 is not the only article in the Basic Law which touches on cultural activities. Articles 140, 144 and 149 may also have a bearing on the issues raised. The Court has heard no submissions on these other articles or their possible relationships with article 34. 89.Given my conclusion on the first two grounds of challenge, it is not necessary at all to go into article 34. 90.For these reasons, I do not base my decision on article 34, and I do not wish to express any view on it. Issues pertaining to the proper interpretation of article 34 and how the freedom guaranteed thereunder may possibly be restricted must await another day. Oral application for cross-examination 91.During the hearing, Mr Harris made an oral application to cross-examine Ms Chan Shiu Keung Ellis, who had made several affidavits filed in these proceedings. Mr Harris wished to cross-examine Ms Chan on the reason why the relevant applications for entry were referred by the handling immigration officers to other Government departments for comment. Mr Harris wondered whether that was only done because of the Falun Gong background of the applicant or it was in accordance with general practice. The Court refused the application. 92.Very briefly, first, it was an extremely late application. It related to a matter which did not even form one of the grounds of challenge. It was a typical fishing expedition. The Court appreciated that the internal minutes of the Director had not been made available to the applicant when the present challenge was first mounted. But after its disclosure, the applicant could have taken out an interlocutory application for further discovery or even for leave to cross-examine Ms Chan. That was not done. It was simply too late for Mr Harris to attempt to do the same at the substantive hearing. (The Court is not, however, implying that if it had been made earlier, the application would have been granted.) 93.Secondly, as mentioned, the matter sought to be clarified by cross-examination had nothing to do with the pleaded grounds of challenge. At the substantive hearing, none of the grounds relied on had anything to do with the applicant’s Falun Gong background, and the Court was not concerned with it, apart from regarding it as forming part of the general factual matrix of the case. As this judgment demonstrates, despite the Falun Gong background of the case, the issues raised and the Court’s decision thereon have nothing to do with that background. 94.Thirdly, and in any event, it is clear from the eligibility criteria of the GEP scheme that one of the considerations that the Director, under his guidelines, takes into account is whether there is any security objection and known record of serious crime in respect of the person seeking entry. Therefore, on the face of it, the Director’s referral of the applications to other departments for comment accorded perfectly well with this consideration. 95.For those reasons, the oral application was refused. Outcome 96.For these reasons, the present application for judicial review is allowed to the extent that the Director’s decisions refusing the 6 individuals’ applications for permission to entry should be brought up and quashed. I so order. 97.This does not mean that if the Director had taken into account all relevant considerations and ignored all those that were not, the applications of the 6 individuals would necessarily have been successful. Nor does it mean that the Court would have lightly interfered with the Director’s decisions if he had taken into account all relevant considerations and ignored all those that were not relevant. 98.As regards the applicant’s claim for damages, as has been previously directed, it is to be dealt with separately, regarding which the parties are at liberty to seek further directions from the Court, if the matter is to be pursued. Amongst other things, the applicant would have to plead a good cause of action, establish causation and prove the quantum of its claim. 99.As regards costs, I make a costs order nisi that the respondent do pay to the applicant the costs of these proceedings, including all costs previously reserved, to be taxed if not agreed. 100.I thank counsel for their assistance.
Mr Paul Harris SC, instructed by Ho, Tse, Wai & Partners, for the applicant Mr Johnny Mok SC, instructed by the Department of Justice, for the respondent | |||||||||||||||||
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