The Immigration Department has been granted permission to appeal the case of QT, a lesbian expatriate who overturned the government’s refusal to grant her a spousal visa.
The applicant, QT, entered into a civil partnership with another woman, SS, in the UK in 2011. But when SS came to Hong Kong for work, the Immigration Department rejected a dependent visa for QT on the grounds that their same-sex union is not recognised under Hong Kong law.
QT lodged a judicial review over the matter and lost at the Court of First Instance last year. The judge ruled that there was no discrimination by the Director of Immigration, adding that it would have been unlawful for the director to act differently because of the definition of marriage under Hong Kong law. QT appealed.
The Court of Appeal ruled in September that the Director of Immigration “failed to justify the indirect discrimination on account of sexual orientation.” The Immigration Department then filed an appeal.
On Monday, the court granted the department permission to fight the decision at the Court of Final Appeal. It said that leave should be granted based on three questions of law, taking the view that they involved points of great general and public importance.
The questions include whether Hong Kong’s failure to legally recognise civil partnerships and same-sex marriage prevents a claim of discrimination over differential treatment based on marital status, as refusing same-sex marriage is currently not considered discrimination.
The government is also asking for a ruling on whether immigration – in particular, that which involves a dependent visa based on spousal relationship – falls within the core rights and obligations recognised in marriage.
The government further mentions that “as recognised consistently by the Courts, the Director of Immigration is entitled to exercise stringent control over immigration matters and enjoys… discretion as to how to formulate and administer his immigration policies” and questions how far this discretion goes.