Stone, Yi Gui v The Minister for Immigration & Ethnic Affairs [1996] FCA 547

Mrs Yi Gui Stone applies to the Court from the decision of the Immigration Review Tribunal affirming a decision of the respondent Minister not to grant to her an extended eligibility (spouse) entry permit. The appeal is by way of an application to the Court in its original jurisdiction and is by way of judicial review. Mrs Stone was represented with leave of the Court by her brother-in-law, Mr Crawshaw, who although not a lawyer, assisted the Court with detailed submissions. Since the Court is not entitled to find the facts for itself, fact-finding being a matter for the Tribunal, I rejected that an affidavit sought to be read by Mr Crawshaw in the proceedings seeking to set out Mrs Stone's view of the facts, although I allowed certain paragraphs of that affidavit to be treated as submissions. There were some twenty-four grounds of appeal said to raise questions of law. Some went to the procedure adopted by the Tribunal, others to findings of fact said to have been made erroneously by it. But even if the Tribunal had erred in finding some of the facts, as it is submitted, it is agreed on behalf of Mrs Stone that certain minimum findings of fact were correctly made. These can be stated as follows: (1) Mrs Stone is a citizen of the People's Republic of China. She arrived in Australia on 21 August 1991 with a visa which entitled her to remain six months. (2) On 17 July 1992 Mrs Stone entered into a marriage with Mr Stone. It may, for present purposes, be accepted as a genuine marriage of two persons who intended to live together as man and wife. (3) On 18 August 1992 Mrs Stone applied for an extended eligibility (spouse) entry permit as a spouse and a permanent entry permit after entry on the grounds of that marriage. The form of application contained a nomination which was intended to be completed by the spouse, Mr Stone. The information particulars were filled out, but Mr Stone did not sign the form.

(4) At no time up to and including the date of the Tribunal's decision (or for that matter to the date of the present proceedings) did Mr Stone sign the nomination. (5) As at 18 August 1992 Mr and Mrs Stone were living apart. There was a conflict of evidence as to whether their living apart was indefinite or not. Mr Stone said in essence that by that date the marriage had broken down. Mrs Stone, on the other hand, said she still had feelings for Mr Stone which did not dissipate until some time later. The Tribunal chose to accept Mr Stone's evidence and this is one of the findings which Mrs Stone challenges. It is, however, conceded that there was material before the Tribunal in the form of Mr Stone's testimony upon which the Tribunal could base its finding. I accept of course that there was also evidence to the contrary. (6) On 27 November 1992 Mrs Stone sought and obtained against her husband, in an ex parte application, a restraining order in the Perth Court of Petty Sessions on the grounds that he had caused her personal injury or had behaved towards her in an offensive provocative manner and that such behaviour was likely to cause a breach of the peace. (7) On 23 March 1993 the restraining order was dissolved by consent. (8) On any view of the matter, 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 apart on a permanent basis. As the law then stood, an application for an extended eligibility (spouse) entry permit had to satisfy the criteria prescribed in regulation 126 of the Migration Regulations, the relevant terms of which for present purposes are: "126(1) The prescribed criteria in relation to an extended eligibility (spouse) entry permit are that, at the time when the application for the permit 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)is not an illegal entrant, other than: (A) a prescribed applicant referred to in paragraph 42(1C)(a), (b), (ba), (c) or (ca); or (B) a person who, before becoming an illegal entrant, entered Australia as an exempt non-citizen referred to in paragraph (b) or (e) of the definition of exempt non-citizen' in subsection 4(1) of the Act; and (iii) ... (b) ... (ba)The applicant is both: (i) A person who would satisfy the criteria specified in (a), except that the marital relationship mentioned in that paragraph is no longer continuing; and (ii)a person to whom subregulation (1A) applies; or (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 ... (1B)... (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." Notwithstanding the definition of "spouse" in the Regulations, reg2(1) provided that the reference to a "spouse" is a reference to: "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." Mr Crawshaw, by particular reference to the various use of tenses in reg126 and by reference also to dictionary definitions of the word "would" as used in reg126(1)(ba), contended for two alternative constructions of the regulation. The first was that the requirement that the Australian citizen or Australian permanent resident be a person who "nominated" the applicant for grant of the entry permit, spoke in future terms, so it was unnecessary that, at the time of decision, there be a nomination as long, at least presumably as it could happen in the future. The second construction was that, provided the applicant had at the time of the application been married to a person who was then an Australian citizen or Australian permanent resident and there had been, inter alia, an order of a court for the protection of the applicant from domestic violence, the applicant had satisfied the prescribed criteria even though there had been no nomination. Mr Crawshaw accepted that the first construction made nonsense of the requirement of nomination and that a court would strain against an interpretation which produced absurdity. In my view, the first construction is just not open, no matter how much attention one gives to a passing or tense analysis of the regulation. The intention in the language is clear. In the ordinary case (and I leave reg126(1)(ba) to one side for the purposes of this argument) the prescribed criteria will not be satisfied unless by the time the application is decided (by the Tribunal where the initial decision is reviewed by the Tribunal) there has, 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. The nomination might occur at or before the time of application or at any time thereafter until the date of decision, but if there were no application by the date of decision the criteria would not be fulfilled and the application must then fail. The next question is to determine whether reg126(1)(ba) operates to dispense both with the need for the couple to be living together permanently at the time of decision and the need for nomination, or only the former. Again, the language is clear. For (ba) to apply the applicant must satisfy the criteria in para(a), with the exception that the marital relationship no longer continues. The regulation does not exempt compliance by the applicant with any criteria other than as specified. Specifically, the sub‑regulation does not exempt the application from the requirement of nomination. It is submitted that so to construe the regulation brings about what is in essence a "flawed regulation", by which it is suggested that once domestic violence has intervened and an order has been obtained it can hardly be expected that the erstwhile spouse would thereafter sign a nomination. That may be, but the result is not so absurd as to require such a construction to be rejected. Sub-regulation (1)(b) is directed at a case where, after there has been a marriage and a nomination, domestic violence intervenes. It proceeds on the basis likely to be true as a matter of fact in the majority of cases that application for the permit will be made at the time of or shortly after the marriage. If the applicant chooses not to apply at that time but a domestic violence order intervenes and the marriage is practically at an end, then so be it. It follows that the Tribunal, when it found that absent nomination the application must fail, correctly interpreted the regulation. It follows also, that even if Mrs Stone were to succeed in all other grounds, procedural or otherwise, her application to the Court must fail for it would be futile to remit the matter to the Tribunal when on the minimum facts found by it, as to which there is no challenge, Mrs Stone cannot satisfy the criteria in reg126. There was a second ground of decision by the Tribunal which likewise would lead to a similar result. Once it is accepted 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 (and by "permanent" is meant indefinite), it is clear from the definition of spouse in sub‑regulation 2(1) of the Regulations that, as at that date Mrs Stone was not the "spouse" of Mr Stone (although their legal marital status still persisted). Not being a spouse is defined. Mrs Stone did not fulfil the initial criterion of reg126(1)(a), with a consequence that her application would likewise have to fail. Mr Crawshaw submitted that recourse should not be had to sub‑regulation 2(1) of the regulations. The only ground for not doing so would be if the definition of a spouse in reg126(1B)(c) in some way excluded sub‑regulation 2(1). But the definition of spouse in reg126 (which is circular) applies only to regulation 126(1A), it does not apply to regulation 126(1)(a). In the last-mentioned regulation, in my view, spouse means more than merely a legally married person and includes, for example, de factos who would, on Mr Crawshaw's interpretation, be arbitrarily excluded. It follows that the application to the Court must be dismissed and the applicant, Mrs Stone, must pay the Minister's costs. Three final matters should be mentioned, although they play no part in my decision. I have perused the transcript and find no evidence of the procedural irregularities which have been suggested, for example, that the Tribunal did not allow Mrs Stone to narrate her evidence at the outset but rather engaged in a course of questioning which sought to elicit only the damaging factors against her case. In the interests of time and the orderly conduct of reviews the Tribunal, of necessity, will ask questions, particularly of a witness not represented by a legal practitioner, and attempt to arrive in an orderly way, as far as is possible, at the truth. Secondly, a number of examples of mistakes in translation and mistakes in transcription of the transcript were pointed out. Counsel for the Minister agreed, for the purposes of the proceedings, that these errors had occurred. It is not an error vitiating the proceedings that the Tribunal transcripts contained errors, be they of translation or transcription. This probably happens on a regular basis through human error, although it must be said that most transcripts are, all things considered, extremely accurate, having regard to the difficulties which producing a running transcript creates. If it could be demonstrated that the Tribunal acted in a relevant respect on evidence in the transcript which is found to have come about as a result of an erroneous transcription or an erroneous translation, then the Tribunal's decision could be set aside. But none of the errors had any significance in the present case to any relevant factual finding of the Tribunal. Finally it was submitted that, in at least one passage of the transcript, a member of the Tribunal used her own understanding of the Cantonese language to speak (in English) to the applicant who had spoken in Cantonese in words which were not translated. Four other passages were illustrated where it is suggested that the Tribunal member used her own knowledge of Cantonese. None of the passages referred to concerned any matter relevant to the facts which I have indicated to be the only relevant facts, for the purposes of the appeal. It would be a breach of natural justice for the Tribunal (or a member) to conduct proceedings in a language other than English where the other side (here the representative of the Minister) would not understand. In the present case no prejudice was suffered, but no matter how frustrating it may be for a member of a Tribunal who can speak the language of a witness to go through the process of interpreters, it is important that he or she do so, so that justice is not only done but can be seen to be done; cf Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 290 to 292.

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