Gauthiez v Minister for Immigration and Ethnic Affairs

[1994] FCA 871

JUDGMENT No. ..... 87 1 ,.,.J I----....Y 94-

C A T C H W O R D S

- application for Extended Eligibility (Family)

Entry Pernit - applicant illegally present in Australia eince
1986 - whether "remaining relativeg of his parents - whether
applicant usually resided in same country (not being

Australia) ae his brother - whether error of law.

piaration Act 1958
Maration Leaialation Amendment Act 1989

muration -, S.R. 365 of 1989, regs. 9, MA, 127

&~th,a v Parnet London Borouah Councfl; Ex Darte Shah [l9831 2

A.C. 309

PRINCIPAL

21 NOV 1994

AUSTRALIA

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY )	NO. NG25 of 1994
GENERAL DIVISION	1

On appeal from the Immigration Review Tribunal

constituted by Mr Patrick Johnson A.M.

BETWEENS	W I N GAUTHIBB Applicant
AND :	MINISTER FOR  I M M I G R A U
AND ETHNIC AFFAIN

Respondent

CORAK:	GUMMOW J.
PLACE :	SYDNEY.
DATE :	12 AUGUST 1994.

-

P:

(1) The decision of the Immigration Review Tribunal dated 20

December 1993 be set aside.

(2) The matter be remitted to the Immigration Review Tribunal

to be determined according to law.

(3) The respondent pay the costs of the applicant.

Note: Settlement and entry of ordere is dealt with by Order 36

of the Federal Court Rulee.

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY )	No. NG25 of 1994
GENERAL DIVISION	1

On appeal from the Immigration Review Tribunal

constituted by Mr Patrick Johnson A.M.

BETWEEN	a	-IN GAUTHIEZ Applicant
AND	I	MINISTER FOR IMMIGRATIOY AND ETHNIC AFFAIRS

Respondent

CORAH:	GUMMOW J.
PLACE :	SYDNEY.

DATE a 12 AUGUST 1994.

pEASONS FOR JUDGMENT

Part 4 of the Miaration Act 1958 ("the Act") comprises ss. 151-166. These provisions were inserted by the Miaration teaislation Amendment Act 1989 ("the 1989 Act"). Section 151 establishes the Immigration Review Tribunal ("the Tribunaln). Section 138 of the Act provides that an "appeal" lies to this Court "on a question of law" from certain decisions of the Tribunal. Section 140 confers jurisdiction on this Court with respect to matters arising under S. 138; that jurisdiction is expressed to be exclusive of the jurisdiction of all other courts other than that of the High Court under 8. 75 of the Constitution. Sections 138 and 140 were also added by the 1989 Act. Although the term "appeal* is used in a. 138, it is apparent that with respect to matters arising under S. 138 this Court is exercising original jurisdiction.

The applicant, Mr Alain Gauthiez, seeks to have set aside the decision of the Tribunal given 20 December 1993 in which the Tribunal affirmed a decision to deny him the grant of an Extended Eligibility (Family) Entry Permit.

Mr Gauthiez was born on 18 November 1953 in France and is a French citizen. His father, Mr Andre Gauthiez, was born in France in 1926. He married his wife, Jacqueline, in 1952 in what was then French Guinea. The applicant was their first child. Their second child, Jean, was born in French Guinea in 1954, and their third child, Christine, was born in France in 1960. Between 1952 and 1970, the family lived partly in France in partly in French Guinea which, after independence,

became the Republic of Guinea.

In 1972, the family left Guinea and moved to Belgium. In 1981, the husband, wife and daughter came to Australia. All three are now Australian citizens. The sons stayed behind in Belgium. The younger son, Jean, married a Belgian woman. The Tribunal appears to have decided (though without making, as it should have done, a finding of fact in clear terme) that the applicant should be accepted when he said that before coming

to Australia he had lived in Belgium for some ten years.

The applicant entered Australia on 24 January 1986 as a visitor and has remained here since then. He was granted a temporary entry permit valid to 24 April 1986. No further permits were granted and as a result the applicant became a "prohibited non-citizen". As a result of changes in the legislation, on 19 December 1989 his designation changed to that of an "illegal entrant'.

Mr Alain Gauthiez lodged an application for an Extended Eligibility (Family) Entry Permit on 26 October 1990. The application was refused by a delegate of the Minister on 23 April 1992. On internal review, the decision was affirmed on 31 March 1993. The next step was the unsuccessful application to the Tribunal.

It is necessary to analyse the relevant delegated order to ascertain the provisions applicable to the matter now	legislation, including a thicket of complex amendments, in
before this Court. The piaration 119931 Reaulatiou ("the 1993 Regulationsm), made under the Act, commenced on 1 February 1993. However, the present application concerns an application for an entry permit made before 1 February 1993. The result is that the previous Waration Recrulati- ("the Regulations"), being Statutory Rules No. 365 of 1989 as amended, continue to apply. Regulation 8.2 of the 1993 Regulations so provides.
The type of entry permit applied for by Mr Gauthiez is dealt with in reg. 127 of the Regulations. In its original form in 1989 this relevantly was as follows:

"127 The following criteria are prescribed in relation to

an extended eligibility (family) entry permit:

(a) the applicant:

(i) . . .; or ( i ) . . .; or

(iii) ae the result of a death or permanent

incapacitation since the a~~1icant.a

8    -

(A) has become an aged dependent need relative or orphan relative; and

relative, remaining relative, special (B) the relative in Australia to whom that relationship relates is an Australian citizen, or an Australian permanent resident, who has been resident in Australia for a reasonable period;

(iv) . . .;

(b) the applicant satisfies public interest criteria, as applicable, and the prescribed health criteria specified in item 9 in Schedule 1."

[Emphasis supplied]

The regulation has been amended a number of times. By Statutory Rule No. 272 of 1990, reg. 7, the words "since the applicant's arrival in Australia" were removed from sub-para. 127 (a) (iii), and the words "has becomem in sub-para. 127 (a) (iii) (A) were removed and replaced by the word "isg. These amendments were gazetted on 21 August 1990. A further sub- paragraph, 127 (a) (v), not relevant to these proceedings, was added by Statutory Rule No. 75 of 1990, reg. 30.

A significant amendment was that effected by Statutory Rule No. 201 of 1991, reg. 17. This inserted the words "at the t h e when the application for the entry permit is decided," before the words "the applicantn at the beginning of paras. (a) and (b). This amendment was gazetted on 28 June 1991. However, by reg. 1.3, reg. 17 is taken to have commenced on 19 December 1989.

Finally, by Statutory Rule No. 418 of 1991, reg. 28, sub- para. 127 (a) (iii) was deleted entirely, and a new sub- paragraph was substituted as follows:

"(iii) is an aged dependent relative, remaining relative, special need relative or orphan relative in relation to a person in

Australia who:

(A) is an Australian citizen; or

(B) is an Australian permanent resident who has been resident in Australia for a reasonable period; orw

The result is that when the delegate of the Minister made the decision refusing the application on 23 April 1992, reg. 127 relevantly was as follows:

'127 he following criteria are prescribed in relation to

an extended eligibility (family) entry permit:

(a)	at the time when the amlication for the entry
-it is decided, the applicant :

(i) . . .; or (ii) . . .; or

(iii) is an aged dependent relative, remaining

relative, special need relative or orphan
relative in relation to a person in

Australia who:

(A) is an Australian citizen; or

(B) is an Australian permanent resident who has been resident in Australia for a reasonable period; or

(iv) . . .; or (v) . . .; or

(vi) . . .; and

(b) at the time when the application for the entry permit is decided, the applicant satisfies public interest criteria, as applicable, and the prescribed health criteria specified in item 9 in Schedule 1. '

[Emphasis supplied]

On the face of reg. 127, as it stood when the decision was made, the delegate was instructed by the opening words of	para. (a) to apply the regulation in the form as set out	immediately above, that is, with the new sub-para. 127 (a)
(iii). This is despite the fact that the regulation was in a different form as at 26 October 1990, the date of the application for an entry permit.

Counsel for the respondent submitted that reg. 127 must

be read subject to reg. 34A of the Regulations. So far aa is

material, this, both at the date of the application for the

entry permit and the date of the decision, was as follows:

"34A (1) Subject to subregulation (2) and iy v other

provision of these Recnr-, an applicant for a visa or an entry permit must satisfy the prescribed criteria in relation to the relevant class of visas or the entry pennit (other than public interest criteria and prescribed health criteria) at the time of a~~lication and aq

a~~licable at that timg. . . ."

[Emphasis supplied]

The submission was that whilst sub-reg. 34A (2) is not relevant, nevertheless the other phrase in the opening terms of sub-reg. 34A (1) is of decisive importance. It was contended that reg. 127, in the form it took at the date of the application on 26 October 1990, was an "other provision of these Regulationsn and specified criteria which the applicant had to satisfy at the time of the application. The result would be to require of the applicant that he had become a "remaining relative" or a "special need relativem as the result of .a death or permanent incapacitationm. Whatever the

effect of that somewhat obscure form of words in sub-para. (a)	(iii) of reg. 127, as the sub-para. stood at the date of the
application, it would impose additional or different criteria to those required a8 a result of the subsequent changes to reg. 127 which I have described above. Thus, the applicant would carry a further burden.
However, in my opinion, these submissions for the respondent ohould be rejected.
It may readily be seen that sub-reg. 34A (1) is a provision dealing with the application of criteria, and is expressed to be subject to any other provision of the Regulations. I accept the submission of counsel for the applicant that sub-reg. 34A (1) is to be read so as to accommodate the more specific provision of sub-reg. 127 (a). Despite the insertion of the new sub-para. 127 (a) (iii) at a time after the making of the application for the entry permit, the delegate was bound to apply the new provision when deciding the application. The effect of the phrase "at the time when the application for the entry permit is decided" (inserted with retrospective effect in 1991) is to give effect to any other amendments to reg. 127 made since the date of the application for an entry permit.
The question then is whether at the time when the application for the entry permit was decided, on 23 April 1992, the applicant was a "remaining relative" or "special need relative" in relation to a person in Australia who was an
Australian citizen. As I have indicated, Mr Andre Gauthiea is	an Australian citizen. So also is his wife and daughter, the
applicant's mother and sister.
The Tribunal rejected the claim that the applicant was a "special need relative". That term is defined in reg. 2. It is not necessary to set it out here. The Tribunal held that the evidence established that both parents were permanently incapacitated and had a long term need for assistance. However, it went on to find as follows:

"The Tribunal cannot be satisfied on the evidence before it that the assistance which the [applicant's] parents require cannot reasonably be obtained from their daughter and welfare, hospital, nursing or community services. In addition the Tribunal is not satisfied that the [applicant], whose evidence is that he wants to work if his application succeeds, would be able to provide substantial and continuing assistance on a permanent or long-term basis to his parents.

Accordingly the Tribunal finds that the [applicant] does not satisfy the definition of a 'special need relativet in

regulation 2 (l). "

In its reasons for decision, the Tribunal then determined what it described aa a second issue, namely whether the applicant at the date when the application was decided satisfied the definition of "remaining relative". Before the Court, the applicant submitted that in determining this issue adversely to him, the Tribunal fell into errors of law which	affected its decision, thereby making out the case for	judicial review: BTR Plc v Westinahouse Brake and S-
ComDanv fAustralial Limited (1992) 34 F.C.R. 246 at 253-254.
It is necessary to turn first to the exposition of the term "remaining relativem given in reg. 9. At the time of the
decision, this was in the following form:

"9 (1) An applicant for a visa or entry permit is a

remaining relative for the purposes of these Regulations if the applicant has a relative who :

(a) is:

(i) a brother, sister or parent; or

(ii) a step-relative, within 1 of those degrees of relationship;

of the applicant; and

(b)	is:
(i) an Australian citizen; or (ii) an Australian permanent resident; and

(c) is usually resident in Australia;

unless the applicant is disqualified under

subregulation (2).

(2) An applicant is disqualified if:

(a)

the applicant or the spouse (if any) of the applicant:

(i)	usuallv resides in the same countrv, w t beina AusUaLia. as an overseu Dear relative; or
(ii)	has had contact with an overseas near relative during a reasonable period preceding the applicant; or

(b) the applicant and the spouse (if any) of the applicant together have more than 3 overseas near relatives; or

(3) In this regulation, 'overseas near relative8 means a person who is:

(a)	a parent, brother, sister or non-dependent child; or
(b)	a step-relative, within 1 of those degrees of relationship;

of the applicant or of the spouse (if any) of the applicant but ia not a relative of the kind referred to in subregulation (l).

The word "usually" waa added before "resides" by reg. 5.2 of Statutory Rule 285 of 1991, with effect 17 September 1991. This was after the making of the application (26 October 1990). But reg. 9 operates as a definition and, as picked up by reg. 127, is to be read as it stood when the application was decided. The case before the Court was argued on this footing, subject to the argument, which I have rejected, as to the effect of reg. 34A. But I should note that in the Tribunal reg. 9 was applied in the old form, that is to say without the word nusuallym.

In short, the Tribunal found

(i) on the balance of probabilities, at the date of its

decision the brother of the applicant "should be
taken to be a resident of Francen, and

(ii) it was "preferable in the present case to regard the

[applicant's] country of residence" as France.

That meant that sub-para. (a) (i) of sub-reg. 9 (2) operated

to disqualify the applicant from satisfying the criteria for

"remaining relative". This was because he was held to reside in the same country, not being Australia, and being France, as hia brother.

The applicant doea not challenge the finding of the Tribunal as to the residence of his brother. However, he doea challenge, as involving errora of law, the adverse finding aa to him own place of residence. The crucial passage in the reasons for decision of the Tribunal, in which it dealt with what it described as "the first question", is as follows:

"In relation to the first question, the [applicant] in his original application stated that he was a citizen of France but his country of residence was Australia. The Tribunal has found many times that a person is unable to rely upon his or her unlawful presence in Australia to establish 'residence in Australia' . . . The [applicant's] country of usual residence, therefore, is France. The [applicant's] representative has argued that the [applicant's] country of residence should be found to be Belgium. However, there is no evidence before the Tribunal that he has maintained any ties with that country since coming here in 1986. While establishing the country of residence of someone unlawfully resident in Australia will always present some difficulties the Tribunal considers that it is preferable in the present case to regard the [applicant's] country of residence as the country of his birth, the country of his citizenship, and the country where he grew up, that is, France. "

It is significant that in the immediately preceding paragraph, the Tribunal had said that in deciding whether	applicant satisfied the definition of "remaining relative" it
". . . must address the following questions, firstly, &ere h
the [applicant's] place of residence, secondly, where is the
[applicant's] brother's place of residence." [ Emphasis
supplied]. The assumption was that the applicant did "usually residem (though the actual phrase was not used) elsewhere than in Australia, and that the task was to locate that place.

Whilst it may be a fundamental proposition that, at common law, every person will have domicile, being at least the domicile of origin, it by no means follows that within the meaning of reg. 9 an applicant or the spouse of an applicant will musually reside" in any one country. Counsel for the respondent appeared to accept this. Nevertheless, it seems that the Tribunal approached its task as one of ascertaining the places of residence of the applicant and his brother in the sense that the end of the inquiry had to be the identification of one or other of various candidate countries.

The artificiality of the inquiry was, to a degree, recognised by the Tribunal when it noted that where, as here, the applicant has been unlawfully present in Australia for a significant period, the result presents "some difficulties" in the application of sub-reg. 9 (2). The meaning ordinarily given to the phrases "resides", "usually resides" and "ordinarily residesn is such as to make the result in a given case depend largely upon matters of fact and degree. That

means that if, in the reasons of a body such as the Tribunal,	no misapprehension of the meaning of the provision in question
is disclosed, and no misconception appears as to what may amount to 'residence" or "usual residence*, the decision will not involve a question of law. This will be so unless the fact6 before the Tribunal were incapable of the legal complexion placed upon them: CommisstPnBf of Taxation v
(1946) 73 C.L.R. 93 at 104, per Dixon J.
However, before this Court both sides accepted the applicability to the construction of reg. 9 of a passage from the speech of Lord Scarman in a case in which the House of Lords was construing the term "ordinarily residentm as it appeared in S. 1 of the Education Act 1962 (U.K.). The
decision is v U -
[l9831 2 A.C. 309. There, in delivering the leading speech, Lord Scarman (at 340) pointed out that whilst "ordinary residence" is not a term of art in English law, it embodies an idea of which the Parliament has made increasing use in the statute law in Britain since the beginning of the 19th century. For example, the expression has been a feature of income tax legislation since 1806. After reviewing various authorities concerned with taxation, bankruptcy and family law, his Lordship (at 343-344) said:

"Unless, therefore, it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that

'ordinarily resident8 refers to a man's

abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration.

There is, of course, one important exception. If a man's presence in a particular place or country is unlawful, e.g. in breach of the immigration laws, he cannot rely on his unlawful residence as constituting ordinary residence (even though in a tax case the Crown may be able to do so): m re [l9711 1

W.L.R. 859, and v Secretam of

f t mLRaaa

[l9821 3 W.L.R. 753, C.A.

There is, indeed, express provision to

this effect in [the I m m i a r a t i o n ] 1971,

section 33 (2). But even without this guidance, I would conclude that it was wrong in principle that a man could rely on his own unlawful act to secure an advantage which could have been obtained if he had acted lawfully."

In Jib Yin v ariatie (1907) 4 C.L.R. 1428 the question was whether the appellant was a prohibited immigrant within the meaning of the J m m i a r m Restriction Act 1901. The appellant had been born out of Australia and had never entered Australia before the alleged contravention by him of the legislation. The appellant was a minor. He argued that because his father had acquired an Australian domicile of choice this had changed hie own domicile of dependence to Australia. The High Court held that the principles of the law of domicile were applied in the determination of questions of civil status, particularly questions of capacity to contract, of marriage and of succession to personal property. The issue in the present case was quite different, involving the right of a stranger to claim admission to a foreign country. The

question. Under the Australian legislation, the domicile of	answer depended upon the legislation of the country in
the appellant was irrelevant.
However, in Solomon v Solomon (1912) 29 W.N. (N.S.W.) 68 at 70, Gordon J. held that a domicile of choice in New South Wales, for the purposes of the matrimonial causes legislation of that State, could not be acquired by a party who had entered Australia illegally, without the necessary certificate
of exemption under the P a c i f i c 1901. On
the other hand, in Jablonowski v &&lonowsu (1972) 28 D.L.R.
(3d) 440, the Ontario High Court held that a person might acquire a domicile of choice in Canada for the purposes of the federal divorce law, even if the entry into Canada and residence thereafter was unlawful under the federal immigration law. This was because the divorce legislation did not define the acquisition or loss of domicile otherwise than by reference to the common law determinants of domicile, namely gnimus manendi and facturn.
The controversy in the above decisions does not have a direct impact upon the present case. This is because here the issue of residence arises in the course of the application of the immigration law itself.
It was accepted in argument before this Court that the reasoning of Lord Scarman in m applied to the operation of the criteria by which the applicant might be disqualified from
the beneficial status of "remaining relative".
Counsel did not seek to distinguish the phrase "usually resides" in sub-reg. 9 (2) from the meaning which would have been conveyed by the term "ordinarily residesn. No point was taken that there was, in any event, an error of law because the Tribunal had applied the term "resides" not "usually residesm. Nor was there any challenge to the applicability here of the proposition derived fron numerous cases, largely in the revenue area, that an individual may accurately be said, in a given case, to be ordinarily resident in more than one country at the same time; see pe Tavlor; Ex Darte Natwest
a	- Bank Ltd (1992) 37 F.C.R. 194 at 197-198.

In m su~ra at 341, Lord Scannan said:

"Though the meaning of ordinary words is, as Lord Read observed in Cozens v Brutus [l9731 A.C. 854, a question of fact, the meaning to be attributed to enacted words is a question of law, being a matter of statutory interpretation."

The present case illustrates the point. When the parties accept, aa they do, the applicability of the principle expounded by Lord Scarman in the same judgment, so that the applicant cannot rely on his unlawful activities under the immigration law to secure an advantage thereunder, by establishing his usual residence in Australia, they acknowledge that the phrase "usually resides" in sub-reg. 9

context in which it appears.	(2) takes significant colour from the particular legislative
Is the present, as counsel for the respondent submits, nevertheless a case where there is no question of law before this Court ae required by S. 138 of the Act?
The reasoning of the Tribunal in the passage I have set out in these reaeona, appear8 to have been that the applicant,. country of residence ehould not be found to be
Belgium because there was no evidence that since coming to Australia in 1986 he had maintained "any ties with that country"; three matters taken together pointed to France as the country of residence of the applicant, namely he was born and grew up there, and was a French citizen.
It is true that the applicant was born in France, but that was over 40 years ago. He grew up partly in France and partly in French Guinea. He had lived in Belgium for a number of years before coming to Australia in 1986. In those circumstances, that France was the country of his birth and the country in which he had spent a portion of his childhood were matters of historical tie.
His citizenship was an enduring link with France. But citizenship and residence are distinct concepts although, of course, in common experience most people usually reside in a country of which they have citizenship. Nevertheless, in my view, and as a matter of law, the mere circumstance that the
more, indicate that he was resident in France. Accordingly, applicant retained his French citizenship could not, without there was an error of law by the Tribunal which is reviewable in this proceeding.
However, I prefer to base my decision upon a more direct ground. It turns significantly upon the legal effect which is to be given, in any proper consideration of the usual residence of the applicant for the purposes of the Regulations, to his illegal presence in Australia for a number of years immediately preceding the application and the decision. It was for the Tribunal to consider whether the disqualification imposed by reg. 9 did not apply because, putting aside Australia, as it had to be put aside, the applicant did not usually reside in any country. Rather, as I have indicated, the Tribunal approached its task as if the legislation required a choice to be made between France and Belgium. This is not a case where the error of law was of no significance; it meant that the applicant failed to receive the consideration of his position which the law required (d
Blohaojmrm Ptv Ltd v Smithkline Beecham (Australia) Ptv LtQ
(1994) 121 A.L.R. 373 at 389).
Accordingly, the decision of the Tribunal given 20 December 1993 will be set aside and the matter will be remitted to the Tribunal to be determined according to law.

The respondent will pay the costs of the applicant.

I certify that this and the previous

nineteen (19) pages are a true copy of the Reasons for Judgment of the Honourable W Justice Gummow.

Associate:	L-
Date :	12 August 1994.

Counsel and solicitors	Mr C.R. de Robillard
for the applicant:	instructed by the Parish Patience.
Counsel and solicitors	Mr S.J. Gageler
for the respondent:	instructed by Australian Government

Solicitor.

Date of hearing:	5 August 1994.
Date of judgment:	12 August 1994.