Hong Kong, China - Four Taiwanese Falun Gong practitioners have been given the green light to follow through with their claims that they were barred from entering Hong Kong due to an "unthinking subscription to the mainland's demonization and persecution" of the sect.
High Court judge Michael Hartmann Monday allowed the four practitioners to pursue extra claims in their submissions for a judicial review at such a late stage because the director of immigration's reluctant release of information meant they were unable to properly formulate their claims at first.
Hartmann's judgment was part of the practitioners' ongoing pursuit of an explanation for why they were stopped at immigration checkpoints, detained, and allegedly forcibly removed from the airport when they came to attend a religious conference in February 2003.
The practitioners now claim officials, in taking the decision to deny them entry, "may have been influenced by the fact that the mainland authorities had conducted a campaign of persecution against the Falun Gong and had created propaganda to the effect that Falun Gong planned to undermine public order [in Hong Kong], when in fact, objectively it was known that the movement was an entirely peaceful one," wrote Hartmann.
"It is important to note that in the mainland, Falun Gong has been condemned as a cult and has been declared illegal. Law enforcement agencies have taken steps to suppress the movement. In Hong Kong, however, the movement has always been recognized as a lawful movement," he said.
For the applicants, Paul Harris, senior counsel, had argued that if the placement of the applicants on an immigration watchlist was based on "so- called intelligence" from the mainland, then such intelligence must be viewed with skepticism considering Beijing's stance on Falun Gong.
Hartmann said it was unusual to formulate a judicial review based on speculation: "But when the applicants are faced with a paucity of information, it seems to me to be a legitimate manner of proceeding," he ruled.
He emphasized that no reasons were given as to why the practitioners were denied entry until it was revealed in a court hearing in September that they were on an immigration watchlist.
"As to any more positive indication of why the first four applicants were refused permission, it was only when the discovery proceedings took place, more particularly upon my urging, that the director [of immigration] decided to say something of his reasons."
In September's hearing, Hartmann said he was "astounded" by the department's "mere assertion" that the applicants were denied entry on the grounds of security.
He also allowed the applicants to claim that denying them entry because of possible involvement with others who threaten the "public order" of Hong Kong was irrational given that the Basic Law allows for disruptions of "public order" when it is an exercise of the right to peaceful protest - something they were planning to do.
But whether the applicants will be able to establish the nature of the "intelligence" that led to their placement on a watchlist is still at issue, since they have yet to see the documents, which have been deemed too sensitive to be released.
Hartmann also ruled that Chief Secretary Rafael Hui Si-yan's order of public interest immunity can stand in relation to "the standing order and manuals."
Hartmann ruled that the disclosure of these materials may reveal the guts of the immigration system, putting effective border control at risk.
The judge himself will view two other documents, relating more specifically to the applicants, before he decides whether or not they may be revealed. The applicants will be able to argue further that those documents may be crucial to their case, if the judge rules them too sensitive.
The four - Theresa Chu, Liao Hsiao-lan, Lu Lih-ching and Chang Jenn-yeu - were part of a group of 83 Falun Gong practitioners who arrived for an international Falun Gong conference in February 2003 and who were detained and sent back to Taiwan.
Their original writ claims the department's decision to refuse them entry can only have been based on religious discrimination.
A substantive hearing on whether they were being discriminated against in September was turned into a preliminary hearing in the light of affirmations filed by government officials stating that they were denied entry because they were on a watchlist.
But in November Hartmann ordered the government to list what documents were at the disposal of immigration officers who made the decisions on the applicants and the watchlist.
"It is understandable, of course, that the applicants should be anxious to know why exactly they were refused permission to enter Hong Kong and the core basis upon which those decisions were made," ruled Hartmann.
A substantive hearing for the judicial review application in January turned into a preliminary hearing when it was revealed the chief secretary was continuing to hold back documents on the grounds of public interest.