Yi Gui Stone v Minister for Immigration and Multicultural Affairs [1997] FCA 34 (6 February 1997)

C A T C H W O R D S

IMMIGRATION - Extended eligibility (spouse) entry permit - applicant and husband living separately and apart on permanent basis when application made - husband referred to in application as nominator - husband refused to sign nomination and opposed application before the Immigration Review Tribunal - whether nomination required at time decision made - whether Regulation 126(1)(ba) dispenses with requirement of nomination - whether factual findings made by Tribunal were open to it.

Migration Regulations 1989, Regulations 2(1), 126(1), (1A), (1B)

YI GUI STONE v. MINISTER FOR IMMIGRATION &

MULTICULTURAL AFFAIRS

No. WAG 106 of 1996

LEE, CARR & R.D. NICHOLSON JJ

PERTH

6 FEBRUARY 1997

IN THE FEDERAL COURT )

OF AUSTRALIA )

WESTERN AUSTRALIA )

DISTRICT REGISTRY ) No. WAG 106 of 1996

GENERAL DIVISION )

On appeal from a judge of the Federal Court of Australia

BETWEEN : YI GUI STONE

Appellant

AND : MINISTER FOR IMMIGRATION &

MULTICULTURAL AFFAIRS

Respondent

CORAM: LEE, CARR & NICHOLSON JJ.

PLACE: PERTH

DATE: 6 FEBRUARY 1997

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT )

OF AUSTRALIA )

WESTERN AUSTRALIA )

DISTRICT REGISTRY )

GENERAL DIVISION ) NO. WAG 106 OF 1996

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

B E T W E E N: YI GUI STONE

Appellant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

CORAM: LEE, CARR, NICHOLSON JJ

DATE : 6 FEBRUARY 1997

PLACE: PERTH

REASONS FOR JUDGMENT

LEE J:

I have had the opportunity to read in draft the reasons of Carr J and agree that the absence of the nomination required by reg126(1)(a)(i)(D) dictated that a Class 12 extended eligibility (spouse) entry permit could not be granted.

I do not express an opinion on any of the other grounds of appeal.

The appeal must be dismissed.

I certify that this page is a true copy of the Reasons for Judgment of his Honour Justice Lee.

Associate:

Date: 6 February 1997

IN THE FEDERAL COURT )

OF AUSTRALIA )

WESTERN AUSTRALIA )

DISTRICT REGISTRY ) No. WAG 106 of 1996

GENERAL DIVISION )

On appeal from a judge of the Federal Court of Australia

BETWEEN : YI GUI STONE

Appellant

AND : MINISTER FOR IMMIGRATION &

MULTICULTURAL AFFAIRS

Respondent

CORAM: LEE, CARR & NICHOLSON JJ.

PLACE: PERTH

DATE: 6 FEBRUARY 1997

REASONS FOR JUDGMENT

CARR J:

Introduction

This is an appeal against a judgment of a judge of this Court (Hill J), given on 28 June 1996, dismissing the appellant's application for an order of review of a decision of the Immigration Review Tribunal ("the Tribunal") dated 1 September 1993. The Tribunal affirmed a decision by a delegate of the respondent, made on 14 September 1992, not to grant the appellant a Class 12 extended eligibility (spouse) entry permit.

The Statutory Framework

Under the applicable regulatory regime (which has since been amended), an applicant for an extended eligibility (spouse) entry permit had to satisfy the criteria prescribed in Regulation 126 of the Migration Regulations 1989 ("the Regulations"). Regulation 126 relevantly provided:

"126(1) The prescribed criteria in relation to an extended eligibility (spouse) entry permit are that, at the time when the application is decided:

(a) the applicant:

(i) is the spouse of:

(A) an Australian citizen; or

(B) an Australian permanent resident;

who:

(C) was the spouse of the applicant when the application was made; and

(D) nominated the applicant for grant of the entry permit; and

(E) has a marital relationship with the applicant that is genuine and continuing; and

(ii) . . .

(iii) . . .

(b) ...

(ba) the applicant is both:

(i) a person who would satisfy the criteria specified in paragraph (a), except that the marital relationship mentioned in that paragraph is no longer continuing; and

(ii) a person to whom subregulation (1A) applies; or ...

(bb) ...

(c) ...

(d) ...

(1A) Subject to subregulation (1B), an applicant is a person to whom this subregulation applies if:

(a) a court:

(i) ...

(ii) has made an order under the law of a State or Territory against the spouse of the applicant, being an order for the protection of the applicant from domestic violence; or ...

(b) ...

(c) ...

(1B) ...

(a) ...

(b) 'court' means a court in Australia or an external Territory; and

(c) 'spouse', in relation to the applicant, means the person who was the applicant's spouse when the application for the entry permit was made."

Regulation 2(1) provided that "spouse" means:

"a person who has entered into a marriage recognised as valid for the purposes of the Act, where:

(i) the marriage has not been ended by divorce or the death of one of the parties; and

(ii) the parties are not living separately and apart on a permanent basis; or

(b) a de facto spouse".

Factual Background and History of Matter

The following factual background is taken largely from the reasons for decision of the Tribunal. The appellant is a 42 year old citizen of the Peoples' Republic of China. She arrived in Australia on 21 August 1991, holding a Class 663 Visitor Visa operating as an entry permit, which allowed her to remain in Australia for a period of six months i.e. until 21 February 1992. Before that period expired, the appellant applied for an extension of her stay in Australia on the grounds that she was seeking medical treatment. On 17 February 1992 she was granted a further temporary permit valid until 19 August 1992. On 18 August 1992 the appellant lodged with the then Department of Immigration, Local Government and Ethnic Affairs ("the Department") in Perth an application to remain permanently in Australia on the grounds of her marriage to Mr Neville Morris Stone, an Australian citizen, then aged 55 years. In that application the appellant sought both an extended eligibility (spouse) entry permit and a "permanent entry permit after entry" ("PEPAE"). Her application was not supported by Mr Stone. Although his particulars were provided under "Section G - Nomination" in the application form (Form 887), the form was not signed by him. Before the Tribunal Mr Stone opposed the application. I now turn to the history of the matter both before and after the appellant's marriage to Mr Stone.

The appellant's sister is married to a Mr Crawshaw. At some time prior to June 1991 (that is some two months before the appellant's arrival in Australia) the owner of a Chinese restaurant/take-away business in Bentley, a Perth suburb, gave Mr Stone's telephone number to Mr Crawshaw (who was carrying out some electrical work on the premises) as a person who was interested in meeting a Chinese woman with a view to marriage. In June 1991 Mr and Mrs Crawshaw met Mr Stone in a coffee shop. The Tribunal described the subsequent events in the following terms:

"Three days after the [appellant's] arrival, the parties again met at the same coffee shop. This time, the [appellant] was also present. The [appellant] and Mr Stone dated for about a month. That stopped at the end of September 1991. In March 1992, Mr Crawshaw contacted Mr Stone in an attempt to rekindle the relationship between him and his sister- in-law. Mr Stone then contacted the [appellant] and they began seeing each other again on a regular basis. In June 1992, they began to discuss marriage and on 17 July 1992, the couple were married at the Registry in Perth. The [appellant] then resided at the home of Mr Stone. That marriage however was never consummated. Prior to the wedding, the couple had been to their doctor to be HIV tested. Besides the contention that she was having her monthly period at the time, it was the [appellant's] evidence that she was not prepared to have sexual intercourse with Mr Stone until she was sure that he was HIV negative. Those results however were not available before the wedding. Whilst the [appellant] claimed that she was never told the results, it was Mr Stone's evidence that their doctor had orally told her that he was HIV negative but that she had wanted to see the actual test results which the doctor was not at liberty to release without Mr Stone's permission.

On the evening of Wednesday 5 August 1992, the [appellant] left the matrimonial home and returned to her sister's house. This occurred apparently after an argument and it was the [appellant's] evidence that Mr Stone had slapped her when she refused to have sexual intercourse with him that evening. Mr Stone, however, maintained that he "never laid a hand" on his wife. After she left the house, the [appellant] went to a neighbour's house to call her sister. Her brother-in-law, Mr Crawshaw, then came to take her to his house. The following day, the [appellant] lodged a police report presumably over the alleged assault. She also contacted the Women's Refuges Multicultural Services. M/s Kott Gunning, a firm of solicitors, has confirmed that on 6 August 1992, Mr Stone had consulted them over the telephone "in relation to matrimonial advice following the breakdown of his marriage".

On 9 August 1992, the [appellant] returned to the matrimonial home to talk to her husband. They had a meal together and presumably discussed the future of their marriage. As it turned out, that brief attempt at a reconciliation was unfruitful. Whilst there was some variation in the [appellant's] and Mr Stone's accounts of what happened that evening, what seemed apparent, however, was the fact that the marriage had broken down. The [appellant] said that her feelings for her husband were not there any more and that the marriage had broken down. She said that she would not believe him any more and that even if he were to have shown her the HIV results then, she would not have returned to him. She added that she no longer had faith or confidence in the marriage. Mr Stone told the Tribunal that it was the [appellant] who had wanted to talk to him that day. On his part, he said that he could not longer depend on her and that he had told her that the marriage was over. He then drove her back to the Crawshaws' house.

Although the relevant immigration form was obtained from the Department not long after the wedding, it was not lodged until 18 August 1992.

According to Mr Jones, on 27 November 1992, the [appellant] had made an ex parte application for and was granted a restraining order in the Perth Court of Petty Sessions on the grounds that "Mr Stone had caused personal injury to [her] and/or behaved towards [her] in an offensive or provocative manner and such behaviour was likely to cause a breach of the peace and that Mr Stone unless restrained was likely to behave in a same or similar manner". That order was only served on Mr Stone on 23 December 1992. When the matter came up for hearing on 23 March 1993, following the Magistrate's "preliminary view that the grounds for continuing the restraining order did not exist", the matter was dismissed by consent."

The Tribunal found that on the balance of probabilities, when the apparent attempt at reconciliation, made on 9 August 1992, was unsuccessful, the chance of the parties getting together again was non-existent. The Tribunal referred to the evidence of both the appellant and Mr Stone in that regard. In particular it referred to the following facts:

. that Mr Stone had, on the evening of 9 August 1992, told the appellant that the marriage was over;

. that Mr Stone told the Tribunal that he had made up his mind that there would not be a reconciliation; and

. that on 14 August 1992 Mr Stone had packed the appellant's

belongings and had left them at Mr and Mrs Crawshaw's house where the appellant was then residing.

The Tribunal found as a fact that when the appellant lodged her application on 18 August 1992 she and Mr Stone were already living separately and apart on a permanent basis. She was, so the Tribunal found, therefore no longer his "spouse" [within the meaning of sub- regulation 2(1) of the Regulations] when she lodged her application. Thus one of the prescribed criteria had not been satisfied. The Tribunal rejected the appellant's submission that sub-regulation 126(1)(ba)(i) (relating to separation due to domestic violence) relieved her from the requirement of nomination by her spouse. The Tribunal held that that sub-regulation merely relieved the appellant from having to satisfy the criterion that the marital relationship was continuing. Although the Tribunal noted that it was not strictly necessary, in those circumstances, for it to proceed to consider the matter of nomination, it did so. The Tribunal held that the requirement that an applicant for this class of visa be nominated at some time was not satisfied. For those two reasons the Tribunal affirmed the decision then under review (which itself was a decision made after review by the Migration Internal Review Office). On 16 September 1993 the appellant applied to the Federal Court for an order of review of the Tribunal's decision.

The Case at First Instance

The appellant raised 24 grounds in support of her application for an order of review. In the learned trial judge's reasons for judgment his Honour referred to certain "minimum findings of fact" which Mr Crawshaw (who appeared on behalf of the appellant before Hill J) agreed were correctly made. They included the facts that:

. at no time up to and including the date of the Tribunal's decision (or for that matter to the date of the hearing of the application in the Federal Court) did Mr Stone sign the nomination; and

. by the time the proceedings came to be heard and decided by the Tribunal, the marriage had irretrievably broken down and Mr and Mrs Stone were living separately and apart on a permanent basis.

Hill J held that [putting to one side for the moment the question of Reg. 126(1)(ba)], the prescribed criteria for the entry permit would not be satisfied unless by the time the application was decided there had, as a matter of fact, been a nomination by the Australian citizen or Australian permanent resident who was the applicant's spouse at the time of application. His Honour held that sub-regulation 126(1)(ba) did not dispense with the need for compliance by the appellant with any criteria other than as specified in that sub-regulation. Specifically, the sub-regulation did not dispense with the requirement of nomination. His Honour held that even if the appellant were to succeed on all other grounds, procedural or otherwise, her application to the Court must fail because it would be futile to remit the matter to the Tribunal when on the minimum facts found by it, as to which there was no challenge, the appellant could not satisfy the criteria in regulation 126.

The learned trial judge referred to the fact that there was evidence before the Tribunal that, as at the date of application, Mr and Mrs Stone were living separately and apart on a permanent basis. Thus it was clear from the definition of spouse in sub-regulation 2(1) that, as at that date, she was not the "spouse" of Mr Stone. Accordingly, not being a spouse, the appellant did not fulfil the initial criterion in regulation 126(1)(a) and consequently her application would have to fail.

The Appeal

In her notice of appeal, the appellant challenged the learned trial judge's construction of regulation 126 and, in particular, whether its requirements were mandatory or directory. The appellant also sought to raise an allegation that she had been given misleading information by the respondent's officers before and at the time of making her application for the entry permit. As this latter matter (which involves contested factual issues) was not raised before the Tribunal or at first instance, I would refuse the appellant leave to raise it on the appeal. That leaves the question of whether there was an error of law on the part of the Tribunal or the learned trial judge.

My views on that matter can be briefly stated. First, with respect, I consider that the learned trial judge was right when he held (at Appeal Book p.28) that the relevant nomination may occur at or before the time of application for the visa or at any time thereafter until the date of decision. But, if at the date of decision there was no nomination, then the criterion described in regulation 126(1)(a)(i)(D) would not be fulfilled and the application must fail.

Secondly, I respectfully agree with his Honour's construction of regulation 126(1)(ba) as not dispensing with the requirement of nomination. When read with sub-regulation (1A) the proper construction of regulation 126(1)(ba) is that it provides for a situation in which the marital relationship is no longer continuing and a Court has made an order for the protection of the applicant. In my view, the sub- regulation does not dispense with any other criterion.

Thirdly, it was open on the evidence before the Tribunal to find, as it did, that Mr and Mrs Stone were on 18 August 1992 "living separately and apart on a permanent basis". Another decision-maker might have had some reservations about reaching such a finding when only 14 days had passed since the parties had separated. However, the finding was clearly open on the evidence. That evidence would also include the fact that the parties had until the hearing before the Tribunal remained separate and apart and that Mr Stone was opposing the application for the entry permit.

I would dismiss the appeal essentially for the reasons given by the learned trial judge.

I certify that this and the preceding eight (8)

pages are a true copy of the Reasons for

Judgment of Justice Carr.

Associate:

Date: 6 February 1997

Mr V. De Alwis was granted leave to appear as amicus curiae

Counsel for the Respondent: Dr J.T. Schoombee

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 15 October 1996

Date of Judgment: 6 February 1997

IN THE FEDERAL COURT OF AUSTRALIA )

WESTERN AUSTRALIA DISTRICT REGISTRY )

GENERAL DIVISION ) NO. WAG 106 OF 1996

B E T W E E N

YI GUI STONE

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

CORAM: LEE, CARR & R D NICHOLSON JJ

DATE: 6 FEBRUARY 1997

PLACE: PERTH

REASONS FOR JUDGMENT

R D NICHOLSON J:

I have had the advantage of reading in draft the reasons of Carr J. I am of the same opinion and have nothing to add.

I certify that this page is a true copy of the Reasons for Judgment of his Honour Justice R D Nicholson.

Associate:

Date: 6 February 1997