Lesbian’s visa bid rejected by Hong Kong’s High Court

Woman had entered into a civil union in the UK, but judge rules that overseas concepts of ‘spouses’ do not apply in the city

PUBLISHED : Friday, 11 March, 2016, 10:13pm
UPDATED : Friday, 11 March, 2016, 10:13pm

A lesbian has failed in the first legal bid to challenge the Immigration Department’s refusal to recognise same-sex relationships when granting the dependant visas that give spouses the right to live and work in the city.

The Court of First Instance ruled yesterday that overseas concepts of “spouses” – which the woman’s barrister argued should be broader than the wedlock between a man and woman – did not apply to Hong Kong.

It also said it was lawful for the Immigration Department to draw a “bright line” between the married and unmarried, and doing so by no means amounted to discrimination against a person’s sexual orientation.

READ MORE: Immigration restriction on gay and lesbian visas due to ‘social well-being’ concerns, High Court told

The defeat could deal a blow to overseas same-sex couples wishing to work in Hong Kong, a popular city for multinationals relocating staff. Activists said the refusal suggested gay and lesbian couples were not welcome.

“This decision whilst disappointing is not altogether unexpected,” said solicitor Michael Vidler, who represented the lesbian. He and his client had already planned to lodge an appeal.

The case centred on a judicial review filed by a woman identified as QT, who moved to Hong Kong with her same-sex partner, SS, in late 2011.

They entered a civil union in the United Kingdom months before moving to the city, where SS had secured a professional job.

READ MORE: Lesbians from mainland China revel in Hong Kong’s freedoms

The problem arose when QT applied for a dependant visa – normally available to spouses in heterosexual relationships – but was rejected as Hong Kong does not recognise civil unions.

QT claimed she was the victim of discrimination and that the Immigration Department’s decision was unconstitutional.

QT has since been on a tourist visa, which requires her to leave Hong Kong every six months.

In his judgment, Mr Justice Thomas Au Hing-cheung rejected the overseas cases put forward by QT’s barrister Timothy Park, who cited one case in the UK.

Dismissing the notion that being married was no different from a civil union, as safeguarded by an Equality Act in the UK, Au wrote: “We do not have such a specific provision in Hong Kong.”

In considering a spouse under Hong Kong law, Au said the Immigration Department should adopt the definition of a person in a heterosexual and monogamous marriage.

To treat “same-sex marriage-like relationships” as equivalent to legal marriages in Hong Kong, he wrote, would mean the department had accepted civil partnerships “through the back door”, which was unlawful.

Hong Kong risks falling behind – both as an international city and a global business hub – if no further action is taken
Equal Opportunities Commission

A disappointed Billy Leung, of LGBTI (lesbian, gay, bisexual, transgender and intersex) rights group the Pink Alliance, said: “The government is basically saying ‘you’re not welcome in Hong Kong’.”

He said societal acceptance of LGBTI people was rising and the government’s reluctance to change would open itself to more lawsuits.

But Choi Chi-sum of the Society For Truth And Light said people could not expect the city to change its policies to suit their personal needs.

A spokesman for the Equal Opportunities Commission said that over the past few years many countries had put in place legislation and policies to protect LGBTI people, and the absence of it would lead to discriminatory treatment against the community.

“Hong Kong risks falling behind – both as an international city and a global business hub – if no further action is taken,” he said, adding that Hong Kong had yet to pass laws that protected sexual minorities.