People with the right to work in modern cities can legally get a dependant’s visa for their spouses. Whether it is a heterosexual couple or a same-sex couple makes no difference. Yet Hong Kong’s immigration chief rejected a woman’s application for her female partner, triggering a legal debate on discrimination and human rights that was entirely irrelevant, yet went on for years. Top legal mind Henry Litton reviews a famous case, and finds a worrying amount of unnecessary confusion.
DOUBLE STANDARDS: In the field of public law, the courts demand procedural fairness from administrators. When an individual is deprived of some right or interest, he or she is entitled to know why, in terms that can be understood.
And yet when the same matter is in court, the judge can delay for months giving judgment, expressing himself or herself in such verbose, diffuse, voluminous and obscure terms that no-one can possibly follow the logic or understand the reasons for the outcome. This is often the case when the judge follows the lead given by counsel who puts up obscure and convoluted arguments.
QT V DIRECTOR OF IMMIGRATION
Consider the case of QT v Director of Immigration [FACV 1/2018], which began as an application for judicial review in October 2014, challenging the Director’s refusal to grant a dependant’s visa to the applicant. It was heard at first instance in the High Court in May 2015. The judge took 10 months to deliver judgment, dismissing the application. It went on intermediate appeal where the first instance judge’s decision was reversed. The Director took it to the Court of Final Appeal (CFA) and lost again. Final judgment in the applicant’s favour was handed down in July 2018.
The total proceedings generated 71 pages of text, indigestible to the ordinary reader. Multiple cases from overseas were dissected and chewed over, in particular judgments of the European Court of Human Rights in Strasbourg. Tortuous arguments by counsel were analysed. And yet, a simple bright line of logic can be seen running through the proceedings, leading to the same result as the two appellate courts reached by convoluted process. Had that line been followed and the tortuous arguments of counsel been set aside, the process would have been brief, fair and transparent, and the outcome easily understood by the ordinary citizen.
FACTS WERE CLEAR
The facts were not in dispute.
QT was a British national. In 2004 she met SS, a South African woman with British nationality. They formed a relationship and set up a household together. In May 2011 they entered into a same-sex civil partnership in England under the UK’s Civil Partnership Act 2004. This gave them rights and obligations similar to those of heterosexual married couples.
SS was offered employment in Hong Kong and was granted an employment visa, entitling her to take up residence and work in Hong Kong.
SS and QT arrived together in September 2011, QT on a visitors’ visa. They established a household together in Hong Kong and led life as a same-sex couple. Time passed. QT’s visitors’ visa was renewed as required. But such an arrangement was precarious and, what is more, a visitors’ visa did not count for eventual permanent resident’s status, however long she resided in Hong Kong.
Was a dependant’s visa issued under the sponsorship policy established by the Department the solution to QT’s problem?
THE SPONSORSHIP POLICY
As explained by a Principal Immigration Officer in charge of the Visa Control (Policies) Division of the Immigration Department, the sponsorship policy was “to ensure that Hong Kong will continue to attract people with the right talent and skills to Hong Kong by giving them the choice of bringing their dependants to live with them in Hong Kong”. That was the purpose of the policy.
Under that policy a person could apply for a dependant’s visa if he or she is (i) the sponsor’s spouse, and (ii) an unmarried dependent child under the age of 18.
The Department states that an application for such a visa may be favourably considered if:
“a. there is reasonable proof of a genuine relationship between the applicant and the sponsor;
b. there is no known record to the detriment of the applicant, and
c. the sponsor is able to support the dependant’s living at a standard well above the subsistence level and provide him/her with suitable accommodation in the HKSAR”.
There is no dispute that QT and SS met those three requirements.
In January 2014, QT applied for a dependant’s visa with SS as her sponsor. Correspondence between the Department and QT’s solicitors ensued. Eventually her application was rejected on the ground that she was not a “spouse” and hence not eligible under the policy.
THE DIRECTOR’S POWERS
The Director has wide powers under the Immigration Ordinance regarding entry and stay in Hong Kong. But such powers are not limitless.
As the CFA said, it is a cardinal principle of administrative law that broad statutory powers are to be construed with the implied limitation that they are to be exercised only for the purpose for which those powers are given (para 20).
Here, the purpose of the sponsorship policy is to attract people from overseas with the right talent and skill to come and work in Hong Kong. After being ordinarily resident in Hong Kong for seven continuous years, such people, whatever their nationality, could apply for permanent resident status in Hong Kong.
In applying the policy, the Director does not look into the quality of the relationship between the applicant and the sponsor, so long as the relationship is “genuine”.
Does it make sense to construe the word “spouse” in the policy to confine it to those who have entered into a Christian marriage (or its civil equivalent)? What about polygamous or potentially polygamous marriages legally contracted overseas? What purpose is served by excluding parties in a registered civil partnership from the sponsorship scheme?
Same-sex marriages, same-sex unions, etc., are recognised in many overseas communities, regulated by law, as is the case of the UK. The kind of people with the “right talent and skill” to whom the policy applies would most likely be people who have acquired such qualifications by working overseas for some years, and have dependants in their families.
The sponsorship policy permits one dependant to apply for a dependant’s visa: not more than one.
Whether that spouse is of the same sex or different sex is neither here nor there.”Andrew Cheung, CJHC
THE DIRECTOR’S CASE
The Director justified the very narrow construction of “spouse” on the basis of the need for “strict and stringent immigration control in the light of Hong Kong’s small geographical size, huge population, substantial intake of immigrants etc” which bring high pressure on the “labour market, social benefits system, housing, education and infrastructure”.
But this argument is circular. The “strict and stringent immigration control” operated to confine the sponsorship scheme to one dependant. That, very likely, would exclude quite a number of people who otherwise would have applied to work in Hong Kong.
As Andrew Cheung CJHC pointed out in his judgment in the Court of Appeal, the Director’s objection is illusory: “Whether that spouse is of the same sex or different sex is neither here nor there” (para 31). He concluded thus: “There is simply no rational connection between the legitimate aim put forward and the means adopted”.
Powers given to administrators by statute must be exercised rationally. In the eyes of common law, there must be a minimum standard of fairness below which the court would intervene.
The purpose of the sponsorship policy is to attract to Hong Kong people of the right talent and skill. When that purpose is achieved – as in the case of SS – it is irrational and counter-productive to then put an artificial barrier in the way: a barrier, as Andrew Cheung CJHC said, which has no rational connection with the purpose of the scheme.
Applying simple common law principles, the courts in QT v Director of Immigration should have no difficulty in declaring the Director’s refusal of a dependant’s visa to QT unlawful. And there being no other impediments, the Director must then grant that visa.
Had such an approach been adopted, the process would have been transparent and easily understood by most people. Unfortunately, led by counsel, the courts took a twisted and tortuous route.
Discrimination comes in multiple varieties. Its outlines are blurred. Its occurrence depends largely upon the relevant circumstances. The common law never developed principles regulating “discrimination”. It is very much the creature of statute. In Hong Kong the Sex Discrimination Ordinance was one of the last to be enacted by the colonial administration.
In the two appellate courts, the focus was on the first ground of challenge put forward on QT’s behalf as follows:
“First, that the decision was unreasonable in the public law sense as it was discriminatory against her on sexual orientation grounds that were not justified”.
As can be seen, the first part of this sentence focussed on the common law principle as set out above: which, standing alone, would have been enough to entitle the court to quash the Director’s rejection of QT’s application for a dependant’s visa.
The second part of this ground of challenge (underlined and in italics) shifted the focus entirely, into a most troublesome area, involving voluminous references to overseas case law and judgments of the Strasbourg Court. In Poon JA’s judgment, he devoted an entire section to multiple cases in that court under the heading “D4 Other Strasbourg cases”.
As regards the CFA, under the heading “B2 The nature of discrimination” the reader learns that there are three categories of discrimination, each illustrated by overseas cases. And then, in para 30, one reads this:
“There has been a notable convergence in the approaches of various courts, including our own, to what constitutes discrimination, influenced by international human rights instruments. The jurisprudence of the ECtHR and its interaction with the jurisprudence of the House of Lords, the Privy Council and the United Kingdom Supreme Court relating to the Human Rights Act 1998 and domestic anti-discrimination legislation are of particular relevance in the present case”.
“Of particular relevance in the present case”, said the CFA: maybe, to someone “learned in the law”. But most certainly not to the ordinary person who would be totally lost in the eleven pages that followed.
There must surely be a duty falling on the courts – particularly in the field of social justice – to deliver judgments intelligible to the ordinary person, if the community is to be governed by law.
Here, the judge at first instance got into a muddle, largely because of the complicated arguments put to him by counsel. His judgment was overturned by the higher courts.
Is there no leadership role for those courts to play? To show by example that justice can be rendered in a clear, straight-forward way, according to well-known common law principles?
The Honorable Henry Litton was Permanent Judge of the Court of Final Appeal in Hong Kong from 1997 to 2000.
He has written a number of articles reviewing legal themes in Hong Kong law. To see all of them, click here.