Hong Kong Court Overturns Visa Refusal

A landmark court ruling on March 9 in Hong Kong has successfully overturned the Immigration Department’s decision to refuse entry of key members of the Shen Yun Performing Arts company last year.

The decision was an encouraging step toward ensuring cultural freedom and curbing the power of the Immigration Department, said Chairperson of Hong Kong Human Rights Monitor Chong Yiu Kwong.

“I’m happy about the court’s decision. … I feel that the court’s verdict is quite fair. It puts a limit on the discretionary power of the Immigration Department,” said Chong. “After the court’s verdict, Immigration can no longer be so reckless and unreasonably refuse others to enter Hong Kong.”

The legal case was filed by the Epoch Group—the local presenter of Shen Yun—against the director of Immigration, after he refused six members of the company entry to Hong Kong just seven days before the shows were due to commence in January 2010. The Epoch Group also publishes the Hong Kong edition of The Epoch Times.

The New York-based Shen Yun, referred to as the world’s premier classical Chinese dance company, was invited by the Epoch Group to perform seven shows at the Lyric Theatre Jan. 27–31, 2010.

Shen Yun believes the visa denial in Hong Kong was due to interference by the Chinese regime. In a Jan. 24, 2010, press release Shen Yun stated: “The Chinese communist regime has been seeking to interfere with our performances for years by trying to pressure officials and theaters to cancel our shows. We regret that the Hong Kong people are denied their right to see Shen Yun Performing Arts and understand that this incident constitutes a violation of Hong Kong people’s freedom. We hope the people of Hong Kong who treasure their freedom will urge the Hong Kong government to undo this mistake.”

Shen Yun master of ceremonies Leeshai Lemish also said that upon the cancellation of the show audience members who planned to travel to Hong Kong from mainland China had their tickets confiscated by authorities and some were even arrested.

The Hong Kong ruling, issued by Judge Andrew Cheung in the High Court of the Special Administrative Region, ordered that the director of Immigration’s decision be “quashed” on the grounds that he “failed to take into account relevant considerations.”

According to its website, Shen Yun’s mission is to revive traditional Chinese culture. It has been invited to perform at some of the world’s most prestigious venues, such as the Lincoln Center in New York, the Kennedy Center in Washington, D.C., and Palais des Congrès in Paris.

The organizers said that the performances were completely sold out within days of the public ticket release.

The sudden visa cancellation forced the organizers to refund over HK$5 million (US$642,000) to the public in lost ticket sales, said Mr. Kan.

“We were shocked by the director’s decision. The refusal to allow key production staff into Hong Kong just days before the shows was clearly a premeditated action to sabotage the show,” he said.

“We welcome the court’s decision, and we thank all the righteous support from Hong Kong and overseas, and praise the court for being able to clear the obstacles,” said Mr. Kan.

In Hong Kong there are no specific visa schedules for visiting artists or sports teams. Such groups have to apply under the so-called GEP schedule, known as General Employment Policy. The provision essentially requires the applicants to prove the necessity for “employment” and that their work cannot be performed by local experts.

While in most cases such proof is not enforced, the final decision has been left to the director of Immigration, whose powers remained largely unchallenged.

This latest court decision by Judge Andrew Cheung has created an opening for greater discretion, says To Yiu Ming, assistant professor, Department of Journalism, Hong Kong Baptist University.

“I feel that the court’s decision respected art exchanges [and] has a positive effect on cultural exchange in future,” said Mr. Ming.

“This is a testing case to see if the court is really independent,” he added.

One unique feature of the Shen Yun performances is the use of state-of-the-art technology to project digital backdrops, often synchronized with the dance performers.

The court documents from Judge Andrew Cheung cite evidence the six visa applications were denied to the staff that was specifically responsible for technical support and back stage assistance, in particular lighting, sound, and projector operations.

According to the summary of the minutes from the Immigration Department meeting provided as evidence, the director asserted, “The duties of applicant as audio engineer are of [a] general nature and the knowledge, experience, and skills required do not meet the requirement that they are not readily available in Hong Kong.”

In other words, the visa applications were refused on the grounds that the staff can be replaced by local engineers.

The reasons were refuted by the applicant’s lawyer, Mr. Paul Harris.

“The decision to refuse all production staff … ignores the simple fact that being able to operate the lighting [and] sound effects of backdrop for a stage event is not a matter of knowing how to operate them, but a matter of when to operate them,” argued Mr. Harris.

The Epoch Group plans to reinvite Shen Yun to Hong Kong as soon as possible, says Mr. Kan.

The government can appeal the court’s decision within four weeks, but some feel that will be unlikely.

“I can tell you, he may not dare to appeal after going through the verdict,” said Albert Ho, leader of the Democratic Party.

Mr. Ho believes the verdict re-established Hong Kong’s values.

“There is a bottom line, Hong Kong is still a place where rule of law is a deeply rooted tradition, that does not easily lose its function under political pressure,” he said. “This is also what’s valuable in Hong Kong.”

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