A married gay man has launched a legal challenge against the government’s decision to deny his public housing application.

Nick Infinger, a 25-year-old permanent resident, filed a judicial review last Thursday. He asked the court to revoke the government’s decision and to declare its policy unconstitutional, as it went against the Basic Law and the Bill of Rights.

The High Court. File photo: Tom Grundy/HKFP.

Infinger’s solicitor Michael Vidler confirmed to HKFP that the High Court granted leave for the case to be heard.

“We are pleased that the court granted leave so promptly and that it did so without the need for a hearing,” he said, noting that the court gave a green light the day after papers were filed.

According to court documents, Infinger married his husband in Canada in January, then submitted an application for public rental housing in March under the category of “ordinary family.”

The application was rejected in September, with the Hong Kong Housing Authority (HA) saying that same-sex couples were not eligible under its policy.

“The relationship between the Applicant and family members must be either husband and wife, parent and child, grandparent and grandchild,” the HA said in a letter.

The letter also cited the definitions of “husband” and “wife” under the Shorter Oxford English Dictionary, which were understood to refer to heterosexual spouses.

Judicial reviews examine the decision-making processes of administrative bodies. Issues under review must be shown to affect the wider public interest.

‘Permanently ineligible’ 

Infinger’s lawyers argued that the policy amounted to unjustified discrimination and violated the principle of equality.

“Same-sex couples are… permanently ineligible for the [public housing] benefit. This is so even if they have (like the Applicant in the present case) publicly solemnised their relationship in an overseas jurisdiction permitting it,” they wrote.

Michael Vidler. File photo: Catherine Lai/HKFP.

“A same-sex partnership, however enduring, loving and co-dependent, and even after having made a public commitment through a same-sex marriage concluded overseas, still cannot constitute an ‘ordinary family’ within the meaning of the policy,” they added.

Infinger’s lawyers argued that the government had a legal burden to justify the differential treatment between same-sex and heterosexual couples.

In July, Vidler won a high-profile court case on LGBTQ rights, representing the lesbian expat QT who sought a spousal visa for her wife. The Court of Final Appeal ruled in QT’s favour and the government had since altered its policy.

The Equal Opportunities Commission noted that there is currently no legislation against discrimination on the grounds of sexual orientation, gender identity or intersex status in Hong Kong.

In light of the court decision on the QT case, the EOC believes that the Government should comprehensively consider the legal framework and policy measures on same-sex relationship recognition and the protection of equal rights of LGBTI persons in various contexts,” a spokesperson said.

Holmes Chan

Holmes Chan is a reporter at Hong Kong Free Press. He covers local news with a focus on law, politics, and social movements. He studied law and literature at the University of Hong Kong.