Qt v. Director of Immigration

CACV 117/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 117 OF 2016

(ON APPEAL FROM HCAL NO 124 OF 2014)

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Before: Hon Cheung CJHC, Lam VP and Poon JA in Court

Dates of Written Submissions: 6, 16 & 27 November 2017

Date of Judgment: 4 December 2017

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J U D G M E N T

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Hon Poon JA (giving the Judgment of the Court) :

1.By a judgment handed down on 25 September 2017, we allowed QT’s appeal and set aside the order of Au J dismissing her application for judicial review.  The Director now seeks leave to appeal to the Court of Final Appeal on the ground that the appeal involves the following questions which, by reason of their great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision :

(1) Given that same-sex marriage or civil partnership is not legally recognised in Hong Kong on all levels (constitutional, statutory and common law), and accordingly the denial of the right to marry to same-sex couples does not constitute discrimination on account of sexual orientation, whether this is an absolute bar to a claim of discrimination on account of sexual orientation when the differential treatment is based on marital status (as recognised under Hong Kong law) in all contexts.

(2) Given that the status of marriage (as recognised under Hong Kong law) carries with it certain special and privileged rights and obligations unique to and inherent in marriage (“core rights and obligations”), which are not open to all other persons including unmarried same-sex couples who cannot get married under Hong Kong law, and any differential treatment based on marital status in the context of such core rights and obligations requires no justification, whether immigration (in particular, the eligibility of a person in a same-sex marriage or civil partnership recognised under a system of foreign law for a dependant visa based necessarily on a spousal relationship with the sponsor) falls within these core rights and obligations.

(3) If justification for a differential treatment in the context of immigration (in particular, the eligibility of a person in a same-sex marriage or civil partnership recognised under a system of foreign law for a dependant visa based necessarily on a spousal relationship with the sponsor) based on marital status is required : (a) what is the appropriate standard of scrutiny to be applied in the present context given that under the Basic Law and the Hong Kong Bill of Rights, and as recognised consistently by the Courts, the Director of Immigration is entitled to exercise stringent control over immigration matters and enjoys a wide margin of appreciation or discretion as to how to formulate and administer his immigration policies; and (b) whether the Director of Immigration has justified the difference in treatment for eligibility for dependant visa based on marital status.

2.Having considered the parties’ written submissions, we take the view that the matter can be disposed of without an oral hearing.  We now hand down our judgment.

3.We take the view that all the 3 questions raised by the Director involve points of great general and public importance.  Accordingly, leave to appeal to the Court of Final Appeal should be granted.  And we so order.

4.We further make an order that costs of the present application be in the cause of the appeal to the Court of Final Appeal.

Mr Timothy Parker, instructed by Vidler & Co., assigned by the Director of Legal Aid, for the applicant

Mr Stewart Wong SC and Ms Grace Chow, instructed by the Department of Justice, for the respondent