Summary: Law in Transition: QT v Director of Immigration in Context

Source: BMC https://blogs.biomedcentral.com/bmcseriesblog/2018/06/22/celebrating-pride-recognizing-mental-health-challenges-lgbtq-community/

Author: Wally Suphap
Summarised by Tsang Zi Kan (Associate)

The article presents the author’s views and observations on the changing legal and social landscapes regarding LGBT+ rights, with reference to the landmark Court of Final Appeal case of QT v Director of Immigration [2018] HKCFA 28.

Summary of the QT case

QT and SS is a lesbian couple who entered into a legally valid civil partnership in England, and SS was employed in Hong Kong. QT’s application for a dependent visa was rejected by the Immigration Department on the ground that the scope of the policy did not cover the couple. The Department’s interpretation of “spouse” was with reference to the definition of marriage under the Hong Kong Marriage Ordinance, rather than the law in the couple’s home jurisdiction. The judicial review, on the issue of whether the denial was unlawful discrimination of QT’s sexual orientation, was successful in the CFA. The reasoning was that the policy was not rationally connected to the Department’s stated aims of immigration control, and attracting and retaining talent. As the evidence to prove the existence of a partnership between heterosexual and homosexual couples is the same, there would not be any undue administrative burden. The CFA opined that the Department’s application of Hong Kong laws and public policy was discriminatory and inconsistent. It also stressed that the government will be required to provide ‘very weighty reasons’ to justify the difference in treatment, upon a more stringent standard of judicial review.

Unprecedented attention in the business community

The author notices the unprecedented attention from the business community when a group of 12 leading financial institutions applied for leave to intervene in the case just before the CA hearing. Later, a total of 31 firms (15 financial firms and 16 law firms, who are member firms of the LGBT+ Interbank Forum and the Hong Kong Gay and Lesbian Attorneys Network), submitted intervention applications as interested third parties to present their unique perspectives. They aimed to emphasise the importance of recruiting and maintaining world-class talents as HK carries the role of a global commercial centre. The author points out that despite the denial of the intervention applications, the valuable opinions of the firms were reflected in the CA and CFA judgments.

Legal landscape and public sentiment

While strategic litigation drives the recognition of LGBT+ rights, the author observes that there has been an increase in public support for same-sex marriage and legal protections against sexual-orientation discrimination. There also has been developments of LGBT+ laws around the globe, such as in the US, Australia, Taiwan, India and Japan. Whereas 26 countries in total have achieved marriage equality and many countries legally recognize homosexual marriages and unions abroad, many LGBT+ people in various jurisdictions still lack legal protections and are even criminalised and punishable by imprisonment or capital punishment.

The author also notes the growing social momentum regarding LGBT+ issues in Hong Kong, as well as in the private sector. Companies are gradually more concerned about LGBT+ workplace diversity and inclusion, and the establishment of forums for LGBT+ professionals is conducive for networking and collaboration.

The author remarks that whether Hong Kong will have legislative and legal advancements remains to be seen and states that the upcoming LGBT+ discrimination cases will be opportunities for jurisprudence development, which will be significant to the protection of fundamental rights and dignity of the LGBT+ community.

Comments

It is heartening to see more recognition of LGBT+ inclusion in the community and commercial sector, as well as in favourable court decisions protecting rights of the sexual minority. However, it is hoped that the government and the legislature would also take the initiative to introduce more LGBT+ friendly policies and legislations to ensure comprehensive protection of LGBT+ rights.