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Epoch Group Ltd v Director Of Immigration

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
Judgment Date09 March 2011
Year2011
Judgement NumberHCAL43/2010
Subject MatterConstitutional and Administrative Law Proceedings
CourtHigh Court (Hong Kong)
HCAL43B/2010 EPOCH GROUP LTD v. DIRECTOR OF IMMIGRATION

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

____________

BETWEEN
EPOCH GROUP LIMITED Applicant

and
DIRECTOR OF IMMIGRATION Respondent
____________

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:

“(a) there is no security objection and no known record of serious crime in respect of the applicant; and

(b) the applicant has a good education background, normally a first degree in the relevant field, but in special circumstances, good technical qualifications, proven professional abilities and/or relevant experience and achievements supported by documentary evidence may also be accepted; and

(c) there is a genuine job vacancy; and

(d) the applicant has a confirmed offer of employment and is employed in a job relevant to his/her academic qualifications or working experience that cannot be readily taken up by the local work force; and

(e) the remuneration package including income, accommodation, medical and other fringe benefits is broadly commensurate with the prevailing market level for professionals in the HKSAR.”

(Affirmation of Wong Yin Sang dated 8 July 2010, para 9)

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...

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