Why QT same-sex visa ruling could be a Trojan virus for traditional marriage in Hong Kong

PUBLISHED : Tuesday, 17 July, 2018, 3:02pm
UPDATED : Tuesday, 17 July, 2018, 10:54pm

I take issue with the Court of Final Appeal ruling on the so-called QT case on several grounds.

In answering the first question posed by the director of immigration in his application for leave to appeal, with due respect, I believe that the court is wrong to hold that it was not an absolute bar.

The question posed by the director was that, “given that same-sex marriage or civil partnership is not legally recognised in Hong Kong at all levels” and accordingly the denial of the right to same-sex couples does not constitute discrimination on account of sexual orientation, whether this is an absolute bar to a claim of discrimination on account of sexual orientation, when the differential treatment is based on marital status in all contexts. This clearly is the key fulcrum on which the appellant QT built her case.

Further, the Court of Final Appeal in its ruling seems to have created a new law instead of applying and interpreting with regard to the meaning of “spouse” or “dependant”.

My concern is purely about the potential legal challenges brought about by the decision by the court which, to my mind, is a disguised Trojan horse virus that would eventually undermine our traditional social fabric of marriage between men and women.

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The court decision has unwisely stretched the meaning of “dependants”, without any regard to the Marriage Ordinance, which stipulates that a lawful marriage in Hong Kong must be a voluntary union between “one man and one woman to the exclusion of all others”.

Furthermore, our law in Hong Kong does not recognise civil unions, which was one of the grounds for the appellant in this case to claim a dependant status.

Unfortunately, the Court of Final Appeal decision in this case could bind the lower courts in the future, in cases involving arguments about whether or not to recognise the legal status of civil unions. And once civil unions are legally recognised, the floodgates would be opened – with impact on the concept of spouse as defined in the Marriage Ordinance.

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The meaning of “dependant” and spousal relationship must be read in the context of the Marriage Ordinance. As such, a spousal relationship must mean that between a man and a woman, to the exclusion of any other union that is not in conformity with the Marriage Ordinance.

In other words, there should be an absolute bar on admitting any same-sex marriages in the spousal relationship, unless and until the law is formally changed.

Junius Ho, legislator (New Territories West)