SCMP Friday, May 18, 2001
Hong Kong: keep out!
You step off the plane at Hong Kong International Airport and join the queues at the immigration counters. But the checking of your passport is to be no mere formality. The officer asks you questions, searches your luggage and declares you cannot enter. Suddenly, you are being escorted back to a plane which is about to depart. Welcome to fortress Hong Kong.
This is not, of course, the typical experience of the vast majority of visitors to the SAR, who breeze through passport control without difficulty. But for 95 members of the Falun Gong spiritual movement last week, their trip was to be shortlived.
The refusal to allow them entry, to stage protests at an international forum attended by President Jiang Zemin, raised concerns among foreign governments. These prompted Secretary for Security Regina Ip Lau Suk-yee to carry out a damage-limitation exercise, meeting with consuls-general from the United States, Britain, Canada and Australia, whose nationals were among those refused entry.
Ms Ip revealed on Wednesday that she had assured the diplomats none of those concerned had been expelled for political reasons or because of their religious beliefs. "The guiding principle, in Hong Kong as in other jurisdictions, is whether it would be in the public interest to admit a particular person," she said. She pointed out that public interest was not defined by law but was a "function of time, purpose and circumstance".
These cases coincided with special security measures needed to protect VIPs attending the Fortune Global Forum, Ms Ip added. "Refusal of entry of persons whose presence in Hong Kong is not considered to be in the public interest is part of the overall security strategy, and we are satisfied that in all cases concerned, the Director [of Immigration] has exercised his power properly."
The Falun Gong's convenor in Taiwan, Hong Gi-hong, claimed last week that immigration officers had told him they were ordered to take action against the group. Fears were also raised that the Government was using a blacklist. In January, 13 Falun Gong members were barred from entry amid scuffles with immigration officers at the airport. They had wanted to attend a meeting of the group at City Hall.
Allegations of targeting the Falun Gong have been strenuously denied by officials. But Ms Ip's comments, which imply the public interest prompting the expulsions was the smooth running of the forum, have done little to quell fears that the Government adopted an anti-Falun Gong immigration policy for that particular week. "They raise more questions than they answer," said Paul Harris, a barrister frequently involved in immigration cases, and a spokesman for the Hong Kong Human Rights Monitor. "What was the nature of the public interest that led to their exclusion? Was it a threat of violence? If so, this would be a notable departure from Falun Gong's entirely peaceful protests. Or was it simply that the presence of Falun Gong might embarrass President Jiang and therefore they decided to keep the numbers down, to refuse a proportion of those who wanted to come without considering each individual case. That might be unlawful."
The controversy highlights the extensive powers of immigration officials. These powers extend beyond visitors, and apply to everyone who is not a permanent resident. It is an area where the Government is almost a law unto itself. Consequently, the system has again come under scrutiny. Could it be made fairer, with more transparency, independence and legal safeguards?
As Ms Ip said on Wednesday, the law gives the Director of Immigration "wide discretion to determine whom he may allow to enter Hong Kong". The Immigration Ordinance states that people without the right of abode are not entitled to enter without permission from an immigration official.
When arriving, a visitor can be searched and permission to enter may be refused. Once permission to come in is denied, the person concerned can be removed immediately, or held for up to two months prior to removal.
There is, technically, a way in which a person may challenge such a decision - by sending a written petition to the Chief Executive. But this system offers few of the safeguards normally required for a fair hearing. The chances of such a petition succeeding are, according to lawyers, virtually zero. A spokesman for the Immigration Department said figures for the number of petitions allowed "are not readily available".
Solicitor William Clarke, who is involved in right-of-abode cases, said the first barrier was a practical one. "Someone turning up at the counter at the airport does not have an opportunity to do anything about it if they have a decision made against them." He said petitions to the Chief Executive typically took six months, during which time there was no right to remain.
Mr Clarke said: "It is time to be more open about how they [immigration officers] exercise their discretionary powers and whether it is really true that they don't keep some kind of blacklist."
He wondered how immigration officers had been able to identify the Falun Gong members who were refused entry. "As far as I know, these people were not coming in wearing [their distinctive] yellow T-shirts."
Senior Counsel Philip Dykes prepared a report for the Hong Kong Human Rights Monitor in 1996 calling for changes to the system. He said much could be learned from reforms made in Britain, which have led to a more open system with better legal safeguards. Britain's Home Office publishes detailed rules concerning the criteria adopted by immigration officers when deciding whether to admit visitors.
The rules cover different groups, including students and their spouses, people coming to invest, maids, and members of religious orders. They can be viewed, together with directions given to immigration officers, on the Home Office Web site. "These rules are scrutinised by Parliament," Mr Dykes said. "They set out in great detail the way in which the discretion will be exercised in any particular case." He said this enabled visitors to know whether they were likely to be allowed in. The rules may also provide grounds for an appeal if it appears officials have departed from them.
But in Hong Kong the rules followed by immigration officers are secret, and there are hardly any guidelines that members of the public can check before their arrival in the SAR. "They have internal rules, but you try getting them out of them," said Mr Dykes.
When asked which rules have been made public, the Immigration Department spokesman said only that the laws of Hong Kong were available and information for visitors was on the department's Web site. But the Web site reveals that the information available is limited. It does not include any of the internal rules governing the conduct of immigration officers.
The spokesman said: "Basically, visitors have to satisfy the immigration officer of the bona fides of their visits, meet normal immigration requirements - such as being in possession of sufficient funds, valid and acceptable travel documents, re-entry facilities for their places of domicile, and having no adverse immigration records."
The immigration laws do not provide people refused permission to enter Hong Kong with the right to an explanation. Some Falun Gong members removed last week appear to have been told it was because of "safety" or "security" reasons.
Mr Dykes doubted whether people in this position were informed about their right to petition the Chief Executive. The department spokesman claimed people refused permission to enter "would be informed of the reasons of refusal sufficient for them to draw up their grounds of appeal . . ."
The spokesman added that people were told they could contact a lawyer, but were only informed of the right to appeal if they asked. Mr Dykes said if a challenge was mounted, it should lead to full reasons behind the entry refusal being provided. If this was not done, then this may provide grounds for a court challenge.
The practical difficulties involved in mounting such a challenge perhaps explain why there have been few, if any, court cases involving the expulsion of visitors. Mr Harris said even if a case was taken to court, the chances of success were slim. "The courts, in other [types of] cases, have made remarks to the effect that when dealing with someone who has no claim on Hong Kong they will not interfere with the Director of Immigration's discretion, unless it is exercised in bad faith."
Mr Harris added: "It is a serious erosion of Hong Kong's freedoms if people coming here to peacefully protest are refused entry for that reason." If people were being expelled in order to stop them protesting, he said, "that makes Hong Kong a less open society and indirectly restricts the freedoms of people here".
Cliff Buddle (
) is the Deputy Editor of the Post's editorial pages.