I. Facts, Summary of Petitioners’ Statements, and Procedural Review
1. Facts and Summary of Applicant's Statement
Petitioner X, a citizen of the Republic of China, registered his marriage with Y, a Vietnamese citizen, in Vietnam on June 4, 2014. A child was born to the couple in Taipei City Hospital, Heping Fuyou Branch, on November 19 of the same year. Afterward, Y applied for authentication of their marriage certificate and issuance of a dependent residence visa at the Taipei Economic and Cultural Office in Vietnam of the Ministry of Foreign Affairs (hereinafter “the Office”). The office rejected the visa application for the reason that Petitioner X and Y have provided faulty or inconsistent statements on important facts of their marriage during the interview. Dissatisfied with the rejection of the visa application, Petitioner X and Y separately filed administrative appeals. The Executive Yuan, considering that both administrative appeals by petitioner X and Y were based on the same facts and legal reasons, consolidated the cases and concluded that both administrative appeals were unfounded, therefore should be dismissed. Petitioner X filed an administrative litigation in response to the decision of administrative appeal. In the claim, apart from requesting revocation of the original administrative disposition, Petitioner X also requested that "the respondent agency shall issue Y a dependent residence visa". The Taipei High Administrative Court judgment 104-Su-1980 (2015) dismissed the case. The reasons in the judgment regarding the agency’s refusal to grant a residence visa stated that, Petitioner X is neither the applicant for the resident visa nor the person subject to the administrative deposition; therefore, there was no claim right of public law to request the issuance of a resident visa for Y because none of Petitioner X's rights nor interests were harmed by the rejection of Y’s resident visa application. As a result, the petitioner’s litigation demanding certain administrative act, which seeks the revocation of that part of the administrative appeal decision and the original administrative disposition, as well as requesting the court to order the respondent agency to issue a dependent residence visa for Y, was dismissed by a judgment due to the party’s lack of legal standing. The petitioner appealed against this judgment; however, the Supreme Administrative Court Judgment 105-Tsai-825 (2016) dismissed the appeal as it was not in conformity with the law. Hence, the abovementioned Taipei High Administrative Court Judgment shall be the final judgment of this petition.
The Resolution of the First Joint Meeting of the Supreme Administrative Court, dated August 2014, states: “...Those who can apply for a resident visa with a foreign passport are limited to foreign nationals with a foreign passport. The domestic spouse of a foreign national has no claim right of public law to request the issuance of a resident visa for his/her foreign spouse. …If the competent authority rejects the foreign spouse’s application for a resident visa and the domestic spouse initiates a litigation demanding performance of certain administrative act based on this fact, since the domestic spouse’s rights and legal interests were not harmed by the competent authority's refusal, the Administrative Court shall dismiss this suit.” (hereinafter “Disputed Resolution”). Petitioner X believed that the Disputed Resolution, which the final judgment applies, infringed the right of instituting legal proceedings under Article 16, freedom of marriage and right to family life protected by Article 22 of the Constitution and therefore filed for interpretation of the Constitution.
2. Grounds for Granting Review and the Court’s Proceedings
According to Article 90, Paragraph 1 of the Constitutional Court Procedure Act (hereinafter “CCPA”), except otherwise provided in the Act, CCPA applies to all the pending petitions lodged by the Constitutional Court before the coming into force of this Act. However, whether the case is admissible shall be subject to the law before the amendment is implemented. The petitioner in this case applied for interpretation of the Constitution on September 2, 2015. Whether it is admissible or not shall be governed by the Constitutional Interpretation Procedure Act (hereinafter “CIPA”) before the CPPA was amended and implemented. Additionally, Article 5, Paragraph 1, Subparagraph 2 of the CIPA stipulates: "In any of the following circumstances, an application for constitutional interpretation may be submitted: ... 2. When the rights guaranteed by the Constitution to people, legal persons or political parties have been violated, and doubts arise as to whether the laws or administrative ordinance applied in the final decision are in conflict with the Constitution, following the legally prescribed procedures for filing a lawsuit".
A resolution by the Supreme Administrative Court, if and when cited by a judge in rendering a judgment, shall be regarded as equivalent to an administrative ordinance; hence becoming the subject of constitutional interpretation (see J.Y. Interpretations Nos. 374, 516, 620 and 622). The Disputed Resolution, as cited in the final judgment, was used to determine that Petitioner X does not hold a claim right of public law to request the issuance of a resident visa for his foreign spouse, nor does he suffer any harm to the rights or legal interests due to the competent authority's refusal to grant a resident visa to his foreign spouse. After verification, the requirements set out in Article 5, Paragraph 1, Subparagraph 2 of CIPA are met, therefore the petition is deemed admissible. Furthermore, since Petitioner X submitted a written withdrawal of the petition on January 27, 2022, this court has considered that this petition is not an isolated case but involves principles of constitutional significance. As a result, the withdrawal is not permitted (see Article 21 of the CPPA). This court thereupon proceeded and rendered this judgment, the reasons for which are as follows.
II、Legal Grounds for the Holdings
1. Constitutional rights involved in this case
Right of instituting legal proceedings protected by the Article 16 of the Constitution means that a person shall have the right to judicial remedy when his/her right or legal interest has been infringed. Based on the constitutional principle that where there is a right, there is a remedy, when a person’s right or legal interest has been harmed, the State shall provide such person an opportunity to institute a court proceeding, to request a fair trial in accordance with due process of law, and to obtain timely and effective remedies. This is the core of the protection of people’s right of instituting legal proceedings (see Judgment No. 11 decided by this Court in 2022 for reference).
The freedom of marriage, which is guaranteed by Article 22 of the Constitution, not only protects people's right to choose whether to be married and whom they choose to marry, but also includes the right to mutually form and manage a marital life with his /her spouse (see J.Y. Interpretation No. 791 for reference). In the case of marriage between Taiwanese nationals and foreigners, if the government denies the foreign spouse's visa application in order to maintain border security, prevent human trafficking, or prevent foreign nationals from entering Taiwan under the guise of dependent visa for other activities that are inconsistent with the purpose of the said visa, the management of mutual marital life between the domestic and foreign spouses would inevitably be affected and therefore restrict their freedom of marriage. Concerning this restriction to the freedom of marriage, foreign spouses shall have the right to file for administrative remedies under the law. In addition, domestic spouses shall also have an appropriate way for administrative remedies so that it complies with the guarantee of people's right of instituting legal proceedings and the principle that where there is a right, there is a remedy, protected by Article 16 of the Constitution.
2.The fact that the Disputed Resolution orders that when a foreign spouse's application for a dependent visa has been denied, the domestic spouse may not bring a litigation demanding certain administrative act does not preclude him/her from exceptionally filing a petition for the administrative appeal or the litigation of revocation and therefore may not yet be held unconstitutional
Article 5, Paragraph 2 of the Administrative Litigation Act stipulates that “Anyone whose rights or legal interests were unlawfully harmed 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 a requirement for people to file a litigation demanding certain administrative act in accordance with the provisions of this article. According to Article 1 and Article 6 of the Act Governing the Issuance of Visas in Foreign Passports (hereinafter “the Act Governing the Issuance of Visas”), eligible applicants to the Ministry of Foreign Affairs or embassies abroad for the issuance of visas shall be those who hold foreign passports. Therefore, only foreign passport holders can apply for visas issued by the Ministry of Foreign Affairs or embassies abroad in accordance with the Act Governing the Issuance of Visas, depending on the purpose and conditions of their applications to come to our country. Since the said right is exclusive to foreign passport holders, a domestic spouse is not eligible as a visa applicant under the Act Governing the Issuance of Visas and thus does not have the claim right of public law to apply for a resident visa on behalf of the foreign spouse. As a result, in aforementioned case the domestic spouse has no legal right to file a litigation demanding certain administrative act. As for the aforementioned constitutional rights of the domestic spouse, however, the denial of a visa to his/her foreign spouse is already an unfavorable disposition that infringes on his/her rights or legal interests. The domestic spouse may exceptionally file an administrative appeal and a litigation of revocation in accordance with the law under the guarantee of the right of instituting legal proceedings concerning this unfavorable disposition. The Disputed Resolution, which states that “when an application for resident visa by a foreign spouse was rejected by the competent authority, an action for administrative act by his/her domestic spouse… shall be dismissed by the administrative court ”, merely addresses whether the conditions for initiating a litigation for imposing an obligation are met, it does not confirm that the domestic spouse may initiate such litigation in their own names. However, it does not preclude the possibility that the domestic spouse, on the account that their freedom in managing mutual marital life with their foreign spouses has been restricted, may exceptionally file a litigation of revocation under Article 4 of the Administrative Litigation Act. Within this scope, the aforementioned resolution is not in conflict with the domestic spouse’s freedom of marriage protected by Article 22 and the right of instituting legal proceedings enshrined in Article 16 of the Constitution.