The widely reported case of QT v. Director of Immigration has sent rainbow-coloured ripples through the Hong Kong community. It is a small but important step along a still lengthy road. Its biggest impact may be encouraging more challenges from the lesbian, gay, bisexual and transgender (LGBT) community against the conservative Hong Kong bureaucracy.
Case in Brief
This case involved a lady (known as QT) who had entered into a lawful marriage in the United Kingdom with another lady (known as SS). SS applied for and was granted a visa to work in Hong Kong. QT applied for a dependant's visa on the basis that she was SS's dependant. Such visa would, if it had been granted, permit her to live and work in Hong Kong.
QT's application for a dependant's visa was declined by the Director of Immigration on the basis that the enshrined policy, which sets out when such visas should be granted, states that they are only available to the "spouse" of a sponsor (i.e., SS is the sponsor in such situation). The view of the Director of Immigration (and all Directors of Immigration historically) was that the term "spouse" in the Hong Kong context (where same sex marriages are not lawfully permitted) must mean "husband" and "wife" in a heterosexual relationship. It could not mean "wife" and "wife" in a lesbian relationship.
QT challenged the reasonableness of this interpretation and hence the refusal by the Director of Immigration to approve her application for the dependant's visa. She did this by making an application for a judicial review, which is a process by which the decision of a public authority (or a person exercising a public sector power) can be critically examined by the courts.
In defending his refusal of a dependant's visa for QT, the Director of Immigration argued (without much conviction) that the stated narrow interpretation of the term "spouse" was necessary in order to satisfy the aims of the immigration policy.
QT's original challenge failed in the High Court. She, therefore, appealed to the Court of Appeal.
In a heart-warmingly progressive judgement the three judges in the Court of Appeal found that, given the stated aims of the immigration policy (striking a balance between attracting talented people to come and work in Hong Kong and maintaining effective and stringent immigration control), it was irrational for the Director of Immigration to refuse to allow QT's application for a dependant's visa solely on the basis that she was the same sex spouse of the sponsor. As such, the Director should grant QT a dependant's visa.
What does this mean for Hong Kong?
Whilst this case has rightly been reported as a victory for sexual orientation equality, the legal impact of the case is limited. It does not impose any legal obligations on the private sector at all and will have limited immediate impact on the way in which the public sector operates.
The decision cannot be construed as a reinterpretation of the term "spouse" in Hong Kong legislation. The judges were clear that the decision focuses just on the specific interpretation by the Director of Immigration of this particular immigration policy. That said, if it encourages civil servants to examine how policies are applied and to be more forward looking, then this has to be good news. Similarly, it will inevitably increase the pressure on private sector employers to be more progressive.