Stone, Yi Gui v Minister for Immigration & Multicultural Affairs [1997] FCA 34

Stone, Yi Gui v Minister for Immigration & Multicultural Affairs [1997] FCA 34

The appeal failed because, by the date of decision, Mr Stone had not nominated the appellant for the grant of the entry permit, so the criterion in regulation 126(1)(a)(i)(D) was not satisfied. Regulation 126(1)(ba) did not dispense with the nomination requirement. It was also open to the Tribunal on the evidence to find that the appellant and Mr Stone were living separately and apart on a permanent basis when the application was lodged.

Jurisdiction
Australia
Judgment Date
06 February 1997
Procedural Posture
Immigration Appeal From a Judge of the Federal Court Concerning Review of an Immigration Review Tribunal Decision Refusing a Class 12 Extended Eligibility (spouse) Entry Permit / Full Court Appeal; Judgment Dismissing Appeal
Outcome
Appeal dismissed; appellant to pay the respondent's costs.
Legal Topics
['extended Eligibility (spouse) Entry Permit' 'spousal Nomination Requirement' 'marital Relationship Genuine and Continuing' 'domestic Violence Exception' 'tribunal Fact Finding']
['immigration' 'administrative Law'] ['extended Eligibility (spouse) Entry Permit' 'spousal Nomination Requirement' 'marital Relationship Genuine and Continuing' 'domestic Violence Exception' 'tribunal Fact Finding']

Case Brief

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Procedural Posture

Immigration Appeal From a Judge of the Federal Court Concerning Review of an Immigration Review Tribunal Decision Refusing a Class 12 Extended Eligibility (spouse) Entry Permit / Full Court Appeal; Judgment Dismissing Appeal

Legal Issues

  1. 1 ['Whether a nomination under regulation 126(1)(a)(i)(D) was required by the time the application was decided' 'Whether regulation 126(1)(ba) dispensed with the requirement of nomination' 'Whether it was open to the Tribunal to find that the appellant and Mr Stone were living separately and apart on a permanent basis when the application was lodged' 'Whether the appellant should be permitted to raise on appeal an allegation that departmental officers gave misleading information before and at the time of application']

Ratio Decidendi

The appeal failed because, by the date of decision, Mr Stone had not nominated the appellant for the grant of the entry permit, so the criterion in regulation 126(1)(a)(i)(D) was not satisfied. Regulation 126(1)(ba) did not dispense with the nomination requirement. It was also open to the Tribunal on the evidence to find that the appellant and Mr Stone were living separately and apart on a permanent basis when the application was lodged.

Court Disposition

Appeal dismissed; appellant to pay the respondent's costs.

Orders

  • ['The appeal be dismissed.' "The appellant pay the respondent's costs."]