Landmark Same Sex Visa Application Judgment in Hong Kong
On 25 September 2017, the Hong Kong Court of Appeal passed down a unanimous judgment in the case of QT v. Director of Immigration to allow QT to obtain a dependent visa through her same-sex partner who works in Hong Kong. The spousal visa in question previously was granted by the Immigration Department only to heterosexual couples, as same-sex marriage is not recognised in Hong Kong.
The Court of Appeal ruled that it was a form of indirect discrimination for the Immigration Department to interpret “spouse” as either the man or the woman in a heterosexual marriage. It took the view that homosexual couples should be able to produce the same proof of relationship in form of a certificate as heterosexual couples do, and that it is not reasonable to exclude homosexual couples based on any considerations of administrative workability and convenience. They also clarified that even if the Immigration Department were to grant a dependent visa to QT, however, this was not to be taken as a formal and official validation of same-sex unions. The Chief Judge further recognized that there is a societal attitude change towards sexual minority rights but that this would require to be reflected in legislative changes before the Courts could give it full effect.
If this decision is not appealed, it will have wide-ranging implications for global companies wanting to transfer any lesbian and gay employees to Hong Kong. This might also be a catalyst for the Hong Kong Government and lawmakers to recognize same-sex relationships as a whole and for the much wider purposes seen in other countries.
This decision comes after a ruling in April this year from the Court of First Instance, allowing a same-sex spouse to claim spousal benefits under the Civil Service Regulations, Leung Chun Kwong v. Secretary for the Civil Service and another. In that case, the Plaintiff applied for a judicial review of decisions made by the Hong Kong Secretary for Civil Service to refuse spousal benefits for the same-sex spouse whom the Plaintiff had married in New Zealand. The grounds he cited were discrimination and breach of his right to equality under (i) Article 25 of the Basic Law; (ii) Article 1(2) and 22 of the Hong Kong Bill of Rights; and (iii) common law. The Court sided with the Plaintiff on the discrimination claim and held that the Secretary’s decision on benefits amounted to unlawful discrimination. The Secretary is appealing the decision. However, this decision confirmed at the same time that the definition of “marriage” included in the Inland Revenue Ordinance (the statute which governs salary tax matters including assessment of income) could not be interpreted to apply to same-sex marriages, as it explicitly refers to a spouse as being “a husband or wife”.
These decisions show that although same sex marriage and prohibition of discrimination due to sexual orientation are not expressly provided for in statute, the existing Hong Kong laws may nonetheless allow for some protection of those statuses under the Basic Law and the Bill of Rights.