法律援助署五十周年紀念特刊 | Legal Aid Department 50th Anniversary Commemorative Publication

Judgment of Court of Final Appeal ． The Director using the challenged differentiating criterion of marriage as its own justification cannot be permitted in view of the circularity in this argument. ． There was no rational connection between the policy and the stated two aims of attracting foreign talent and maintaining strict immigration control. A person who had the talent or skills needed or desirable could be heterosexual or homosexual. ． The differential treatment of QT on the basis of administrative convenience was irrational, since QT and SS could just as conveniently produce their civil partnership certificate as a heterosexual married couple could produce their marriage certificate. ． The appeal was unanimously dismissed by the Court of Final Appeal. 終審法院的判決 ． 處長以受質疑的待遇差別（即婚姻準則）作為本 身的理據，這屬於循環論證，法院不能接納。 ． 有關政策與所述的吸引外來人才和維持嚴謹的入境 管制制度這兩個目的，沒有合理的關聯，具備天分 或所需技能的人可以是異性戀者或同性戀者。 ． 以行政方便為由而對QT的待遇有所差別也不合理， 因為QT和SS可以像異性已婚夫婦交出結婚證書般， 隨時交出她們的民事伴侶關係證書。 ． 終審法院一致駁回上訴。 Court of First Instance and Court of Appeal Judgment ． QT’s application for judicial review was dismissed in the Court of First Instance. ． The Court of Appeal unanimously allowed QT’s appeal. ． The Court of Appeal granted leave for the Director to appeal to the Court of Final Appeal. 原訟法庭及上訴法庭的判決 ． 原訟法庭駁回QT的司法覆核申請。 ． 上訴法庭一致裁定QT的上訴得直。 ． 上訴法庭批出上訴許可給處長上訴至終審法院。 Grounds of Appeal ． The Director argues that the differential treatment between QT and a married spouse under the policy requires no justification, since an obvious difference exists between a partner to a civil partnership and a married spouse. ． The differential treatment was justified and that the court should not interfere unless it found that the policy was manifestly without reasonable foundation. 上訴理據 ． 處長認為，由於民事伴侶關係中的伴侶與已婚配 偶存在明顯的差異，所以在有關政策下，QT的待 遇與已婚配偶的有所差別，無需有理可據。 ． 有關的差別待遇有理由支持，除非法庭認為有關 政策顯然沒有合理基礎，否則不應干預。 Going Forward ． The judgment was regarded as a major victory by the LGBT community. QT, stated after the final judgement, "It is my hope that this case will pave the way for greater recognition of same-sex unions in Hong Kong." ． The Court of Final Appeal made it clear that this case does not involve any claim that same-sex couples have a right to marry under Hong Kong law. A valid marriage under Hong Kong law is heterosexual and monogamous and is not a status open to couples of the same sex. ． In September 2018, the government revised the immigration policy on applications for entry of non-local dependants. A person who has entered into a civil partnership / civil union outside Hong Kong with an eligible sponsor in accordance with the local law in force of the place of celebration and with such status being legally and officially recognised by the local authorities of the place of celebration will become eligible to apply for a dependant visa/ entry permit for entry into Hong Kong. 發展路向 ． 有關判決被性小眾社群視為重大勝利。QT於最終 判決後指出：「我希望本案可以為香港進一步承 認同性婚姻鋪路。」 ． 終審法院清楚指出，本案並不涉及同性伴侶有權根 據香港法律締結婚姻的說法，在香港法律下的有 效婚姻是一夫一妻制的異性婚姻，而這並非同性 伴侶可取得的地位。 ． 2018年9月，政府對申請非本地受養人來港的入境 政策作出修訂。在香港以外的地方與合資格保證 人根據當地有效的法律締結民事伴侶關係 ／民事 結合，而該身分是締結當地機關合法和官方承認 的，將合資格申請受養人簽證 ／進入香港的入境 許可證。 P.79 法律援助署五十周年紀念特刊