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Hong Kong courts

Married gay man sues Hong Kong government over rejected public housing application

  • Housing Authority’s policy – based on dictionary definitions of ‘husband’ and ‘wife’ – is illegal, unconstitutional and unreasonable, argue same lawyers who won review of spousal visa policy in July
PUBLISHED : Friday, 23 November, 2018, 4:54pm
UPDATED : Friday, 23 November, 2018, 11:14pm

A gay man is suing the Hong Kong government for denying him a public housing flat – because he is married to another man.

In a judicial review application filed to the High Court on Thursday, Nick Infinger argued the Housing Authority’s decision was unconstitutional under the Hong Kong Bill of Rights and the Basic Law, the city’s mini-constitution.

It followed several high-profile LGBT court cases in the city in recent years but was the first to affect low-income couples.

Human rights lawyer Michael Vidler, representing Infinger, said: “It’s easier to believe only foreigners would be gay, lesbian and transsexual. But the fact is the vast majority are permanent residents, born and bred [here].”

Vidler and barrister Timothy Parker in July successfully challenged the city’s policy of not granting same-sex partners spousal visas, in a case mounted by a British citizen, known in court as QT.

Hong Kong does not recognise same-sex marriage.

“Same-sex couples are … permanently ineligible for [housing] benefit,” the lawyers wrote. “Given there is less favourable treatment along suspect lines, the burden falls upon the government, or relevant public authority, to justify the treatment.”

Infinger, 25, married his husband in Canada in January and applied for public housing under the category of “ordinary family” in March.

His solicitors found he satisfied all the eligibility criteria: he was married; both he and his spouse were permanent Hong Kong residents over the age of 18; and neither owned any domestic properties or exceeded the limits on income or assets.

The authority replied on August 24 that the relationship must be either husband and wife, parent and child or grandparent and grandchild – and cited a definition in the Oxford English Dictionary.

“Husband means ‘a married man especially in relation to his wife’ and ‘wife’ means ‘a married woman especially in relation to her husband’,” the letter read. “The applicant is not eligible.”

Infinger’s application was rejected on September 7.

Infinger’s lawyers argued the policy gave different and less favourable treatment to same-sex couples as they were permanently ineligible for the benefit.

“It is for the government to show that the difference in treatment is reasonably necessary,” the writ said.

They also complained same-sex couples who had entered into a legal union were receiving the same treatment as unmarried heterosexual couples – despite material differences.

It is for the government to show that the difference in treatment is reasonably necessary
The writ filed on Thursday

Vidler said the Housing Authority’s refusal to accept his client’s application had deprived them the chance of being able to live together, as their heterosexual counterparts would be able to when granted public housing.

“They are not asking to be treated any differently ... They just want to be on the waiting list,” he said, acknowledging the notorious long queue for subsidised housing.

He said the top court had made its stance clear in the QT case.

“It is for the government to decide whether to waste public funds to fight the case or accept what our highest court has said according to rights in our Basic Law,” he said.