Top lawyers demand Hong Kong government explain legal basis for denying British journalist’s visa

Chairwoman of the Bar Association’s committee for constitutional affairs and human rights says the authorities should explain the legal basis for denying a work visa for Victor Mallet, the Asia news editor for the Financial Times

By Alvin Lum, SCMP

This article first appeared in SCMP on 9 October 2018
Link to original article: HERE

Hong Kong’s top lawyers have questioned the government’s legal basis to deny a British journalist’s work visa, saying a controversial talk he moderated happened one month before the speaker’s pro-independence party was officially outlawed.

The group of lawyers, including Po Wing-kay, the chairwoman of the Bar Association’s committee for constitutional affairs and human rights, was referring to the Immigration Department’s recent rejection of the work visa for Victor Mallet, the Asia news editor for the Financial Times.

Mallet was the acting president of the Foreign Correspondents’ Club when it hosted a talk by Andy Chan Ho-tin, the founder of Hong Kong National Party (HKNP), which was banned last month on grounds of national security and public order.

The government has remained tight-lipped on the reasons behind the rejection of Mallet’s visa.

In the absence of a plausible explanation, Po said Mallet was essentially “expelled” for organising the talk, which he said was far from illegal at the time.

“It is more like a case of: ‘We don’t really like you any more’,” she wrote in a commentary published by the Post .

Po added there was “serious doubt” over whether the ban on the HKNP was legal, including a lack of proof that the HKNP had posed “a genuine threat of force”.

“If the ban itself is unlawful, it renders the ‘eviction’ or Mr Mallet doubly absurd,” Po said.

This was also echoed by criminal law professor Simon Young of the University of Hong Kong, who stressed that Mallet had not committed any criminal offence back in August and had a legitimate right to know why his working visa was denied.

Contrary to the pro-government camp’s suggestion that immigration authorities commonly would not explain a refusal of entry or visa extension, Po suggested the city’s leader could explain the matter if Mallet lodges an administrative appeal to her and the Executive Council.

Section 53 of the Immigration Ordinance states that any person can appeal the decision by immigration authorities to the Chief Executive and Exco, while the city’s leader “may confirm, vary or reverse the decision” by the authority.

“If a decision is, on the face of it, aberrant, like the present case, the failure to give reasons could be taken as there being no good reason,” Po said.

Po added that the wide powers of the immigration authority “must be exercised lawfully and not in an arbitrary manner”, otherwise it could lead to an abuse of power.

Young warned it was difficult to challenge an immigration decision, as the courts generally gave the department considerable discretion to handle entry to the city.

“Apparently it’s a matter of sovereignty, who can enter and who cannot – typically [the authorities] would be reluctant to give a reason unless they are challenged in the courts,” he added.

Asked whether it planned to ask the court to extend Mallet’s visa or challenge the earlier refusal, a spokesperson from the Financial Times said it had nothing to add.

Mallet applied to renew his working visa last month but was later turned down by the Immigration Department, which has not publicly commented on the case since last Friday, citing its policy of not disclosing details on specific refusals.

The authority’s controversial move, rare among foreign correspondents stationed in Hong Kong, sparked major concerns over the city’s press freedom.

In a joint statement on Monday, 30 lawyers, including Bar Association chairman Philip Dykes, vice-chairman Robert Pang Yiu-hung, Edward Chan King-sang, Graham Harris and Alan Leong Kah-kit, said an explanation was needed on Mallet’s case, given its unprecedented nature and profound impact on Hong Kong’s press freedom.

The group, which represented the legal sector in picking the city’s chief executive in 2017, said freedom of the press was an important facet of the right to freedom of expression and a fundamental right enshrined in Article 16 of the Hong Kong Bill of Rights.

“We urge the Hong Kong government to seriously reconsider the rejection of Victor Mallet’s visa renewal application and, in the unfortunate event the government decides to maintain such rejection, adequate reasons should be given,” the group said.

Separately, the liberal lawyers’ body, the Progressive Lawyers Group, said the absence of a reason given to Mallet made it “questionable” that the move was justified.

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