A landmark ruling by Hong Kong’s top court allowing a lesbian expatriate couple to obtain a dependant visa may not help a gay civil servant who is appealing a decision to deny his partner spousal welfare, legal experts said on Thursday.
Despite siding with the LGBT community, the Court of Final Appeal’s judgment on Wednesday did not address the city’s traditional definition of marriage, the experts said.
Christian leaders in the city also said the finding did not pose a threat to heterosexual marriage.
In its unanimous decision, the Court of Final Appeal sided with the British citizen, known in court as QT, when it found that the Immigration Department should grant same-sex partners spousal visas previously available only to heterosexual couples.
Hailed as a victory for the city’s LGBT community, Wednesday’s ruling stood in stark contrast to the community’s legal setback last month when senior immigration officer Angus Leung Chun-kwong lost his appeal against the Civil Service Bureau and Inland Revenue over access to spousal benefits for his husband, Scott Adams, whom he married in New Zealand in 2014, and to file taxes as a married person.
Barrister Geoffrey Yeung Ka-wai, a member of the Progressive Lawyers Group, said QT’s triumph might not have a bearing on Leung’s final appeal, which is expected to be lodged soon.
He said in the QT case, the Immigration Department did not rely on the argument that it was trying to protect the institution of traditional marriage in Hong Kong by denying spousal visas to same-sex couples.
“But in the Angus Leung case the government did rely on this aim,” Yeung said. “The differential treatment is needed because of the aim of protecting traditional marriage.”
However, in the QT case, the top court overturned a rule laid down by the Court of Appeal that may create avenues to challenge other cases, Yeung added.
The lower court had ruled that authorities did not have to justify their actions when what was being challenged was unique to what it referred to as “core rights”, such as marriage, adoption and inheritance. This approach made it easier for the government to defend its actions in court. But on Wednesday, the top court ruled that marriage, one of the core rights, required justification.
Solicitor Adam Hugill, of Oldham, Li and Nie, agreed the ruling set a possible precedent to challenge certain “discriminatory practices”.
This “opens up for question” the current discriminatory practices of allowing joint tax returns only for opposite-sex married couples and the requirement that only one person in a same-sex marriage can apply for adoption, he said.
Leung’s solicitor, Mark Daly, said he and a colleague were studying the details of the new decision in preparation for the civil servant’s appeal.
However, Koon disagreed with the city’s equality watchdog, the Equal Opportunities Commission, which urged officials on Wednesday to start consultations for legislation that would prevent discrimination based on sexual orientation, and to consider “the legal framework and policy measures on same-sex relationship recognition”.
“It was wrong to discriminate against people, especially based on their sexual orientation,” Koon said. “But is legislation or education the best way out?”
Reverend Peter Koon Ho-ming, the provincial secretary general of the city’s Anglican church, which has up to 40,000 followers, said the court’s ruling would not undermine Hong Kong’s definition of marriage as between a man and a woman.
“We have always sympathised with homosexuals and sexual minorities,” he said. “[Heterosexual] monogamy is practised in Hong Kong, but other types of marriages are recognised overseas. The Immigration Department failed to look at this issue from a humane point of view, and separated a pair that have lived together for a long time.”
Last year Koon told the Post the city was “not yet ready” to legalise same-sex marriage, saying it would involve“too many issues, such as child adoption”.
He suggested that instead of legalising same-sex marriage, the issue could be resolved by allowing same-sex partners to sign a contract or covenant of companionship granting them the same rights in law as a marriage in certain areas.
Koon said on Thursday he was still opposed to legalising same-sex marriage.
Reverend Lo Lung-kwong, secretary general of the Hong Kong Christian Council, an umbrella group, added: “The ruling would not affect Hong Kong’s institution of marriage.”
Fung Yat-ming, the communications chief for the city’s Catholic diocese, said the church respected the Court of Final Appeal’s ruling.
Asked to comment on the church’s stance on marriage, Fung said: “Natural law has been the basis of the teaching of the church on marriage, [which] is the union between a man and woman for the sake of the family.”
Article Originally appeared in South China Morning Post on 6th July 2018