Once again, the court is taking lead on LGBTI rights in Hong Kong as a lesbian couple challenges the Immigration Department on their refusal to issue a dependent visa to the spouse.
Photo: Michael Vidler represents the appelant QT, who is taking the fight for equal rights to the High Court.
It is not the Government but the judiciary who may again advance the case of LGBTI rights in Hong Kong. In 2013, the Court of Final Appeal ruled it unconstitutional for the Registry of Marriages to deny a transgender person, W, the right to register to marry her boyfriend. The Government followed up on the court order and submitted a Bill to LegCo last year to correct what the court saw as failings in policy. However, the Bill was voted down by most pro-establishment members. Surprisingly, pan-dems also voted down the Bill believing it is unreasonably rigid in definition.
And so, for the second time in recent years, the courts will decide whether LGBTI rights in Hong Kong advance or stay put. A lesbian has challenged the Immigration Department who refused to issue a dependent visa to join her partner. A hearing was concluded in May. As of today, the High Court hasn’t released the date on which it will announce its ruling, but it is expected soon.
You shall not pass!
“QT”, pseudonym of the litigant, came to Hong Kong in 2011 after her partner SS was offered a technology job. In the same year, the two of them were registered in UK for the same-sex Civil Partnership. But for four years, unlike spouses in heterosexual marriages, QT was denied a dependent visa, meaning she can’t apply for an ID card, obtain a work visa, access to government services or open a bank account. And without a spousal or dependent visa, she has to leave Hong Kong every six months and return. The Immigration Department subsequently offered QT a discretionary visa based on “humanitarian grounds” after the court agreed to handle the case. QT turned down the offer as other same-sex dependent spouses whose partnership or marriage is recognised in other jurisdictions will still be denied a dependent visa in the future.
“Naked discrimination”
Lawyer Michael Vidler, who is involved in both the W case and QT case, and openly gay lawmaker Raymond Chan Chi-chuen (陳志全, GC – New Territories East, People Power) claim the Immigration Department is blatantly discriminating against same-sex dependent partners purely on the basis of their sexual orientation.
“The Hong Kong Government refuses to recognise the legal partnership or marriage [in other jurisdictions]…We are increasingly out of step with the rest of the world in LGBTI rights,” says Mr Vidler.
He adds that even China and Australia, who don’t allow gay marriage, grant dependent visas to homosexual dependent spouses. Surprisingly, China is moving more swiftly to recognise LGBTI rights than Hong Kong. The Communist state gave a green light to a transsexual marriage a decade ago and allows British citizens to register for same-sex marriage at the country’s British consulates and embassies. The most notable case was last year, Brian Davidson, the British Consul General of Shanghai married his US partner Scott Chang at the ambassador’s residence in Beijing. However, this practise is disallowed here by the Hong Kong Government.
“The general policy rationale for that [dependent visa] is that the Hong Kong Government recognises the importance of recruiting the best qualified people from abroad. They want to encourage people to come over to Hong Kong.” By denying gay people the right to obtain a dependent visa, Mr Vidler believes the Immigration Department contradicts the purpose of the policy.
At the hearing last month, Stewart Wong Kai-ming SC, representing the Government, said that the Immigration Department had to “control [over] the number and category of people who can come to Hong Kong…The legitimate aim of [doing so] is to protect Hong Kong’s resources, labour market and social infrastructure.”
Blocking talents to Hong Kong
“Hong Kong is left behind the curve, presenting difficulties to big businesses to find them [overseas talents] on an open playing field,” says Mr Vidler. He reveals that the dependent visa issue is a subject the banks have complained about in private for many years.
Community Business, a NGO focusing on responsible business practices, is circulating an online petition to urge the Government to grant dependent visa to homosexual dependent spouses. “Attracting, retaining and engaging a competitive talent pool is a key priority for companies operating in Hong Kong, and the current immigration policy has the potential to be a significant obstacle in achieving this,” the organisation writes in its petition.
ASIFMA, a regional financial trade association based in Hong Kong with over 80 member firms, is among the almost 1,400 signatories. Writing to Harbour Times, the group says it is “committed to non-discrimination and diversity, which plays an important role in the continued development of Hong Kong as a leading international financial centre.”
The British Consulate-General also signed the petition. “It’s well known that the UK Government is committed to ensuring equality and non-discrimination for LGBT people, and that’s why we welcome initiatives such as the Community Business LGBT Workplace Inclusion Index. I have heard evidence of perceived discrimination affecting Hong Kong based companies’ ability to attract international talent – this is about basic human rights, but there is also a strong business case, with organisations benefiting from a diverse and innovative workforce,” says the spokesperson of the Consulate.
The demand for change also comes from the academia. Lawmaker Chan said that when he spoke to foreign scholars, they felt averse to coming to Hong Kong as they worried their partners would not able to get a dependent visa. “How can you get foreign talent to come to Hong Kong if you can’t even do this basic thing [issuing dependent visa]? So, You are talking nonsense when you say you want to develop the technology sector and boost academic exchanges.”
