The Court of Appeal has handed a win to a British lesbian who challenged the government’s policy on LGBT rights, ruling that it was wrong of the Immigration Department to deny her application for a dependent visa.
In an unanimous decision by three judges, the court said the department failed to justify that its current policy on issuance of dependent visas is rational, and therefore constituted an indirect discrimination toward the petitioner, identified only as QT.
As a result, the court ruled that QT’s application for a visa should be approved and that she should be compensated for the litigation costs, the Hong Kong Economic Journal reports.
QT and her partner entered into a civil partnership in Britain, months before coming to Hong Kong after the latter secured a job here in 2011.
QT applied for a dependent visa in 2012 and 2014, but both applications were rejected by the Immigration Department.
Her application for a work permit was also denied by immigration authorities.
As a result, QT could only enter Hong Kong on a tourist visa to be with her partner, meaning she cannot open a bank account, obtain permanent residency or work in the city.
Last year the High Court rejected QT’s petition for judicial review, prompting her to bring the case to the Court of Appeal.
Judge Jeremy Poon Shiu-chor said in the ruling that although the existing visa policy does not intend to discriminate against any person, it does seem to mete out unequal treatment to a certain group of people indirectly.
Chief High Court judge Andrew Cheung Kui-nung pointed out that the “right to land” has no obvious link with one’s marital status, and added that the Immigration Department’s responsibility is to control entrants’ number and quality rather than their gender.
Hong Kong defines spouses as one man and one woman in a permanent union for the sake of living together, a definition that excludes same-sex partnerships.
The Immigration Department had claimed that its visa policy is reasonable because it not only abides by the law and “strikes a balance” on maintaining ability to attract talents to Hong Kong, it also achieves the purpose of effectively and rigorously controlling immigration.
Following the court decision Monday, a spokesperson said the department will study the ruling and seek legal opinions before deciding the next move.
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