Gay partners cannot challenge denial of dependant visas, Hong Kong Court of Appeal hears

Case relates to an appeal by lesbian QT, who was denied a visa by the director of immigration; the three judges reserve their judgment in the landmark case

PUBLISHED : Saturday, 17 June, 2017, 8:01am
UPDATED : Tuesday, 26 September, 2017, 3:01pm

Gay partners cannot challenge the denial of dependant visas for Hong Kong so long as they accept the government is entitled not to recognise same-sex marriages, a government lawyer argued in a landmark Court of Appeal hearing on Friday.

Monica Carss-Frisk QC was defending the director of immigration’s decision in 2014 to deny a dependant visa for a lesbian identified as QT. A Court of First Instance judge rejected QT’s judicial review last year.

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The court heard QT was denied a visa after the director found her civil partnership fell outside the definition of “spouse” in Hong Kong, which refers only to a person in a monogamous and heterosexual marriage.

Carss-Frisk said the director could not be criticised or castigated for acting unlawfully in drawing the line at marriage as understood in local law when the non-recognition of gay unions provided a powerful justification.

“At the moment what really stands in the way of QT is that same-sex marriage is not recognised here,” she said. “Rights go with marriage, and the denial of rights go with denial of marriage. If the state is entitled to deny access to marriage, then it goes with it the state is entitled to deny rights of marriage.”

She added that one could not challenge the denial of rights attached to marriage if one did not challenge the constitutional position in Hong Kong.

Carss-Frisk also noted the director had very wide discretionary powers with which the court should be slow to interfere.She noted that the director had two aims – to attract talent and maintain effective, strict and stringent immigration control in light of the city’s size and population.

The policy in question did not involve discrimination because the line was not drawn at sexual orientation nor did it offer different people the same treatment, given that QT and her partner were not in a comparable position with a married couple, she argued.

Carss-Frisk further clarified that gay partners of diplomatic staff or consular officials entered as dependants through a separate policy aimed at promoting friendly foreign relations and only when they carried a special passport issued by their state of origin.

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Meanwhile, QT’s counsel, Dinah Rose QC, countered that immigration was a privilege granted at the director’s discretion, not a right attached to marriage.

“The criterion of marriage may lawfully be restricted to the opposite sex only where the policy pursued is objectively and necessarily linked to the legal status of marriage itself or the rights and obligations which are inherent in marriage and special to marriage,” she said.

“The fact that Hong Kong only recognises heterosexual marriage is irrelevant to the treatment of the legitimate aim this policy seeks to pursue.”

Judgement was reserved by chief judge Mr Justice Andrew Cheung Kui-nung and justices Johnson Lam Man-hon and Jeremy Poon Shiu-chor.