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Audrey Parwani

An appeal court judge yesterday described as extraordinary a government decision to send back 17 mainlanders who claim the right of abode.

 Another judge said the Immigration Department's move to send the migrants home to obtain a certificate of entitlement - to prove their status - was based on a 'poor argument'.

 Geoffrey Ma SC, for the Government, argued in the Court of Appeal that migrants should be sent back to the mainland until they had the certificate.

 Quoting an earlier decision by Mr Justice Wally Yeung Chun-kuen in the Court of First Instance, Mr Ma said it was a 'complicated and difficult' process to set up a verification scheme to deal with the migrants.

 But High Court Chief Judge Patrick Chan Siu-oi, Mr Justice Gerald Nazareth and Mr Justice Barry Mortimer all asked Mr Ma whether the removal order was lawful and whether mainlanders were being deprived of their constitutional rights.

 Mr Justice Nazareth said: 'The Director of Immigration said [in the Court of First Instance] he had to refuse a few people even though they have the right of abode.

 'I find that an extraordinary situation . . . I question whether the Director was acting reasonably to detain and remove them if he knows [an applicant] is entitled to a certificate of entitlement.'  He said that had there been a verification scheme in place he would 'be inclined to accept' a person should go through the procedure.

 'Is the Director entitled to say willy-nilly because there is no scheme he can't accept the applications and to send them back even though there are no schemes in China?'  Mr Ma said to allow the 17 mainlanders to stay would be to let them queue-jump.

 'There are numerous people in the same position as these applicants,' he said. 'Should [the applicants] get preferential treatment because they are here? What is the system then as to who gets to come to Hong Kong first?'  Mr Justice Mortimer said: 'It seems to be a poor argument to deprive a person of that right because there are other people who have that right.'  The 17 appellants, who claim they have the right of abode under the Court of Final Appeal's controversial ruling, refused to leave when their two-way permits expired. They were arrested within two weeks of the initial judgment and were ordered to be sent back.

 The Court of Appeal will give its judgment later.



'Poor argument' to deprive a person of right of abode because others have that