美國人權律師泰瑞瑪什評遣返案一審判決

四位具有良好聲譽的中華民國臺灣公民，向香港高等法院提告港府入境處處長系純因他們的信仰為由而拒絕他們入境。這四位臺灣原告都是法輪功原則的信仰者，其中一位是知名的人權律師，也是「人權法律協會」亞洲執行長。

他們的此項經歷並不特殊。前中共高階主管610業務的官員在美國國會的證詞中明白指出，中共當局早將其迫害和威脅法輪功學員，並且限制他們行使抗議中國政府打壓政策的權利延伸到海外的法輪功學員身上。依據陳用林先生所證，對海外法輪功學員的迫害是中共在海外的重要和主要項目，其中包括蒐集海外法輪功學員及其在當地國活動的消息，並致力於阻止法輪功團體對於中國政府的抗議活動。為了達此目地，中共經由610辦公室和其在全球所布下的特務網，製作了中央和地方的「黑名單」，這樣的名單包括其所獲知在中國境內或境外習煉法輪功的人的名字。

中共當局製作法輪功的名冊，並將名冊廣傳到外國政府，用以阻止法輪功學員進入這些國家境內去行使抗議中國政府鎮壓法輪功的權利，這些名單消息的蒐集和遭到阻止法輪功學員抗議都與本案原告所獲之待遇緊緊相關。

中國政府將這樣的名冊給了香港政府並且要求阻止法輪功學員入境的事實不僅可從陳用林先生的證詞中獲知，亦可從許許多多欲到香港參加抗議迫害法輪功活動，卻遭拒絕入境的法輪功學員的證詞中可知。

儘管原告所提起的法律案強勁有力，香港高等法院也有行使司法權力來審查政府相關部門有無肆意濫用裁量權的義務，高等法院卻仍以令人高度值得質疑的見解駁回了原告的聲請，特別令人有問題的是：法院並未查明任何關於「黑名單」內容、目地及其執行的任何資訊。

舉例說明，法院在其判決理由中再三強調「如果行政部門拒絕原告入境只是基於他們的信仰，那他將至少被認為是不理性的決行和越權（判決書第七二段）。為了支持此項立場，法院不僅引用香港基本法規定，還有許多判例，其中包括引用香港上訴法院Ho Ming Sai and Others v. Director of Immigration的重要相關見解：‘法院應該準備介入所有入境處處長濫用權力的事件，如果其非法濫用行政權’。

在判決書的第六十七段，法官承認入境處處長必須在不同的法律規定下行使其裁量權以達成其行政目的，但是如果該裁量權的行使，既達不成目地並且超過其裁量權行使之限制，法院應該介入。

儘管承認入境處處長是否有「越權」或是在其廣泛裁量權的限制範圍內行使職權，法院卻並未獨立審理入境處處長拒絕原告入境香港的決定，未查明其在本案事爭事實中所行使的裁量權是否為「越權」或是「有悖常理」以便裁決被告是否以宗教為由和基礎來拒絕四名原告入境。

關於此項症點，判決理由的第九十五段中提到「在之後的聽審中，我被告知所有與入境相官的監督名單在三個星期左右就被銷毀了，在差不多的期間內，其他關於拒絕四位原告入境理由的政府檔案也被銷毀了…政府機關收悉之情治消息，消息來源不能揭露，其性質也未詳細說明」。

儘管原告持有有效的多次入境許可，法院竟可在不知名單的來源，不知其目的，甚至也不知資料銷毀的執行，便在判決中下了結論：入境處處長沒有義務透露關於其拒絕原告入境是否濫權的相關事實和基礎。

撇開法院不給予所有外國訪客程序公平及正當程序的權利，違反了原告在法律下應獲得的公平待遇不談；撇開法院不同意歐洲人權法庭之禁止盟國拒絕外國人入境實施人權公約權利的法律意旨不談；撇開法院不尊重英國判例法中前例有拘束力之原則，而引用早已失效的有關拒絕給予某些外國人入境權利的保護不談；香港法院未能查明行政機關在外觀上因宗教信仰理由所而做成的行政行為之真正理由，這樣的判決應該遭到立即的撤銷及廢除。


A Matter of Principle

Four highly esteemed and reputable citizens of the Republic of China (Taiwan) have filed legal proceedings in the High Court of the Hong Kong Special Administrative Region Court (「High Court」) against the defendant Director of Immigration for denying them entry into Hong Kong based solely on their religious or spiritual belief. All four Taiwanese petitioners (「applicants」) believe in the tenets and principles of the Falun Gong religion. One of the four is a well known human rights attorney and the Director of the Asia Branch of the Human Rights Law Foundation.

Their experience is not unusual. Indeed, based upon the US congressional testimony of a former high ranking 610 official (available at http://commdocs.house.gov/committees/intlrel/hfa22579.000/hfa22579_0.HTM), it is clear that the Chinese authorities have extended their effort to persecute and intimidate Falun Gong practitioners, and to restrict their right to protest against Chinese Government policies of repression and torture, to practitioners outside of China. According to this same source, Mr. Chen Yong Lin, the campaign of persecution against the Falun Gong practitioners who reside outside of China was made a major priority, and includes a component of extending the campaign overseas through the collection of information about Falun Gong practitioners and their activities in other countries, and efforts to prevent protest activities against the Government of China. To this end the Chinese authorities have created central and local 「blacklists」 with the names of persons known to practice Falun Gong inside or outside of China, with the help of the Office 610 and a net work of spies who work for them around the globe.

It is this information collection and effort to prevent protests that ties in with the treatment of the four applicants in this case, through the Government of China’s compilation of a list of Falun Gong practitioners that has been circulated to all governments to prevent travel of practitioners to any country where they intend to exercise their right to protest the repressive policies of the Chinese authorities through the list.

That this list was given to the Government of HK, with a formal request from the Government of China to block entry of those Falun Gong practitioners on the list is clear not only from Mr. Chen Yong Lin’s testimony, but also from the testimony of dozens of Falun Gong practitioners denied entry into Hong Kong to attend Falun Gong related events, including protests against the campaign of persecution against Falun Gong in China.

Notwithstanding the strength of the legal case filed by the applicants and the obligation of the High Court to exercise its judicial powers to check the unbridled abuse of discretion of related executive branches of government, the High Court dismissed the application for judicial review based upon highly questionable grounds. Especially troubling is the Court’s failure to ascertain any information whatsoever about the source, purpose, and implementation of the 「blacklist.」

For example, the Court indicates again and again in its decision that 「if the Executive Branch did refuse the applicants entry based solely on their religious belief, he would have at the very least have acted perversely and ultra vires.」 See, Opinion at ¶ 72. In support of this proposition, the Court cites not only provisions of the Basic Law in Hong Kong, but also ample legal precedent that include a highly relevant excerpt from the Hong Kong Court of Appeal in Ho Ming Sai and Others v. Director of Immigration [1994] 1 HKLR 21:

「… Certainly the court would be prepared to intervene in the
event of any misuse by the Director of Immigration of his power
under s. 13. If he were to abuse his power illegally … or irrationally

And again at ¶ 67, the Court concedes that 「the Director must, of course, exercise his discretion under the various statutory instruments so as to promote their objects. If he exercises his discretion so as to frustrate those objects he exceeds the limits of his discretion and the court may intervene.」

While conceding that the issue before the Court was 「whether the [Director] acted [「ultra vires」 or] within the limits of his broad discretionary power,」 (id. at ¶ 73), the Court nonetheless failed to review independently the decision of the Director to ban the applicants from entry into Hong Kong to ascertain if his exercise of discretion in this case was 「ultra vires」 and 「perverse,」 so as to determine if the Defendant could be using religion as a factor and basis for his decision to bar the entry of the four applicants.

This is what the Opinion has to say about this issue (id. at ¶ ¶ 95ff):

「Later in the hearing, I was informed that the relevant data fed into the immigration watch list was … deleted within three weeks or so of its relevance falling away. In addition, seemingly in or about the same time frame… other records in the archives of the Government dealing with the reason why the first four applicants were refused permission to enter Hong Kong were destroyed. … While it was revealed that agencies of the Government had received intelligence, the source of that intelligence was not revealed nor was its nature detailed.」

Without any knowledge whatsoever as to the source of the list, its purpose and objectives, or even its creation or implementation, the Opinion concludes that the Director was not obliged to reveal or disclose the bases and related facts relevant to whether or not the Director indeed abused his discretion when he denied the applicants entry into Hong Kong, notwithstanding their possession of valid multiple entry permits granting leave of entry.

Putting aside the Court’s violation of the applicants right to equal treatment under the law by its refusal to grant to all alien visitors to Hong Kong the same rights of procedural fairness and due process (at ¶ ¶ 71 ff.), putting aside the Court’s disagreement with the jurisprudence of the European Court of Human Rights which prohibits states from refusing an alien entry into its territory for the purpose of preventing the alien from exercising a Convention right within the territory (at ¶¶ 84ff.), putting aside the failure to honor the time honored principle of stare decisis by citing outdated United Kingdom jurisprudence to support its position to deny some aliens access to the rights guaranteed to all others (at ¶¶ 62 ff.), the Court’s failure to ascertain the reason for what appears on its face as religiously motivated biased conduct on the part of the Executive Branch warrants immediate reversal.


U.S. Executive Director of HRLF