This summary constitutes no part of the Judgment but is prepared by the clerks of the Taiwan Constitutional Court only for the readers' reference.
Original paragraph numbers that the summarized texts correspond to are put into lenticular brackets after each paragraph.
Original Case Assignment No.: Hui-Tai-13157
Decided and Announced on December 30, 2022.
In this Judgment, the Taiwan Constitutional Court (hereinafter, the “TCC”) upheld the constitutionality of the Resolution of the First Joint Meeting of the Supreme Administrative Court of August 2014 (August 12, 2014). The TCC pointed out that the Resolution only barred the Taiwanese nationals from filing an action for administrative act to request the issuance of their foreign spouses' visa with the court. The TCC ruled that so long as Taiwanese nationals are not excluded from filing actions for revocation against their spouses' visa rejection, the Resolution did not violate their right to marriage and right to institute legal proceedings.
In 2014, Petitioner X (a Taiwan national, hereinafter “X”) of this case and a Vietnam national Y (hereinafter “Y”) got married and registered in Vietnam. Later that year, the couple gave birth to a child in Taipei. 【3】
Y applied for the authentication of their marriage certificate and the issuance of a dependent resident visa to the Taiwan Economic and Cultural Office in Vietnam, Ministry of Foreign Affairs (hereinafter “the Office”). Y’s application for a visa was rejected by the Office with an administrative act, for the reason that the Office deemed X and Y to have given faulty or inconsistent statements on the important facts of their marriage. X and Y each filed for administrative appeal. Their cases were consolidated and rejected together by the Executive Yuan. X later filed an action with the court, asking for the revocation of the Office's administrative act and additionally, the issuance of Y's dependent resident visa.【3】
X's case was discharged by the final decision of Taipei High Administrative Court Judgment 104-Su-190 (2015). The said decision, citing the Resolution of the First Joint Meeting of the Supreme Administrative Court of August 2014 (August 12, 2014), and on the account that X is neither the applicant of said resident visa, nor the party of the Office's administrative act ––therefore does not have a basis of claim or interest in the case –– ruled that X lack legal standing in the case. 【3】
Petitioner X filed for constitutional review, arguing that the pertaining Resolution infringed the petitioner's right to institute legal proceedings, right to marriage, and right to family life guaranteed by Articles 16 and 22 of the Constitution.【4】
Summary of the Judgment
The Resolution of the First Joint Meeting of the Supreme Administrative Court of August 2014 (August 12, 2014) (hereinafter “the Resolution”) decided that “When a foreign spouse (the applicant) was rejected his/her resident visa application by the competent authority, said applicant's Taiwanese spouse (…) shall be dismissed by the administrative court when filing an action for administrative act (to grant the visa application).” This Resolution only decides on the legal standing of filing actions for administrative acts in litigations regarding resident visa application cases, denying the legal standing of Taiwanese nationals in filing actions for administrative acts in their own names. However, the Resolution does not out-rule the possibility of said Taiwanese nationals, on the account that their freedom in managing mutual marital life with their foreign spouses has been restricted, filing actions for revocation with the administrative court under Article 4 of the Administrative Litigation Act. Within said confine, the Resolution is not in conflict with the protection of the right to marriage and right to institute legal proceedings enshrined in Articles 22 and 16 of the Constitution.
Right to institute legal proceedings is guaranteed by Article 16 of the Constitution, that is to say, when people's rights or legal interests are infringed upon, they may ask the court for remedy. Under the constitutional principle of “ubi jus, ibi remedium” (literally, “where there is a right there is a remedy”), people shall be offered the opportunity to litigate and seek effective remedy under due process and fair trial. This is the core of the protection of people's right to institute legal proceedings.【10】
Right to marriage, which is guaranteed by Article 22 of the Constitution, not only protects the freedom of choosing whether to get married and to whom they want to marry, but also includes the right to form and manage one's marriage with their spouses. In the case of marriage between a Taiwan national and a foreign national, their freedom of marriage and right to manage mutual marital living will inevitably be restricted, if the state is to review the foreign spouse's visa application with the purpose of maintaining border security, preventing human trafficking, and preventing foreign nationals entering Taiwan for other activities under the guise of dependent visa. Foreign spouses may file litigations against said restrictions on right to marriage ipso facto. In addition, their Taiwanese spouses shall also have a proper way for administrative remedy, so that it conforms to the guarantee of people's right to institute legal proceedings and the principle of “ubi jus, ibi remedium” enshrined in Article 16 of the Constitution.【11】
Article 5, Paragraph 2 of the Administrative Litigation Act stipulates that “Anyone whose rights or legal interests were unlawfully injured by a central or local government agency's dismissal of his/her application filed in accordance with applicable laws, after going through the administrative appeal procedure, is entitled to file an administrative litigation to demand that the subject administrative agency render an administrative disposition or an administrative disposition with certain content.” Under the said provision, “applying in accordance with applicable laws” is the constitutive element of people's standing in filing an action for administrative act (with certain content) with the court. In principle, eligible applicants for the issuance of visas shall be those who own foreign passports. Therefore, it is an exclusive right of foreign passport holders to apply to the Ministry of Foreign Affairs and its subordinate diplomatic missions for visas in accordance with the Statute Governing the Issuance of ROC Visas in Foreign Passports (hereinafter, "the Statute”). On the contrary, Taiwanese nationals are not eligible applicants of the Statute, nor do they have the right of claims under public law on behalf of their foreign spouses. Consequently, they do not have legal standing to file an action for administrative act with the court in visa application cases. However, in regards to the administrative act of rejecting foreign spouses' visa applications, their Taiwanese spouses' rights or legal interests in marriage are infringed by said act. As an exception, Taiwanese nationals shall have the right to file appeals with the administrative agency or file actions for revocation with the court in this situation. The Resolution states that “when a foreign spouse (the applicant) was rejected his/her resident visa application by the competent authority, said applicant's Taiwanese spouse (…) shall be dismissed by the administrative court when filing an action for administrative act (to grant the visa application)”, this only refers to the eligibility and legal standing of Taiwanese nationals in filing actions for administrative acts of the issuance of dependent resident visas for their foreign spouses with the court. The Resolution does not bar Taiwanese nationals, with their freedom of managing mutual marital life with their foreign spouses being restricted, from filing actions for revocation with the administrative court in accordance with Article 4 of the Administrative Litigation Act. Within said confine, the Resolution is not in conflict with the protection of the right to marriage and the right to institute legal proceedings enshrined in Articles 22 and 16 of the Constitution. 【13】
Justice Jui-Ming HUANG penned this Judgment.
Justice Horng-Shya HUANG, Justice Hui-Chin YANG, and Justice Tzung-Jen TSAI each filed a concurring opinion.
Justice Ming-Cheng TSAI, Justice Sheng-Lin JAN, Justice Ming-Yan SHIEH, and Justice Tai-Lang LU each filed a dissenting opinion.
Please refer to TCC Judgment 111-Hsien-Pan-11 (2022).
Please refer to J.Y. Interpretation No.791.
Article 4 of the Administrative Litigation Act:“Anyone whose rights or legal interests were injured by a central or local government agency's unlawful administrative disposition is entitled to file a litigation of revocation with the administrative court, if the person has filed an administrative appeal in accordance with the Administrative Appeal Act and is not satisfied with the decision, or no decision has been made in response to the administrative appeal after a three-month period has elapsed, or after the period for rendering an administrative appeal decision has been extended for two months and such period has elapsed. (Paragraph 1)
Where the administrative agency exceeded or abused its power in rendering the administrative disposition, the disposition shall be regarded as unlawful. (Paragraph 2)
Anyone who has interests in the litigation other than the administrative appellant whose rights or legal interests were injured by a central or local government agency's administrative disposition as provided in Paragraph 1 is entitled to file a litigation of revocation with the administrative court. (Paragraph 3)”