FEDERAL COURT OF AUSTRALIA Jian Xin Liu v Minister for Immigration & Multicultural Affairs [2001] FCA 1437 MIGRATION – review of decision of Migration Review Tribunal refusing a spouse (class BC) subclass 100 visa – failure to provide correct information on migration visa application form – failure to notify department of change in circumstances – whether genuine and continuing spousal relationship – relevance of former wife's motivations for marrying applicant – expectation of financial rewards – whether motives of applicant dealt with by tribunal – no error of law. Migration Act 1958 (Cth) ss 101, 104, 109, 476(1)(e) Migration Regulations 1994 (Cth) regs 1.15A, 2.41 Mahfoud v Minister for Immigration and Ethnic Affairs (1996) 43 ALD 5 referred to Minister for Immigration, Local Government and Ethnic Affairs v Dhillon (Northrop, Wilcox and French JJ, 8 May 1990, unreported) referred to R v Cahill [1978] 2 NSWLR 453 referred to Singh v Minister for Immigration and Multicultural Affairs (Branson J, 20 February 1998, unreported) referred to JIAN XIN LIU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 1111 of 2001 CONTI J SYDNEY 15 OCTOBER 2001 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1111 OF 2001 BETWEEN: JIAN XIN LIU APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: CONTI J DATE OF ORDER: 15 OCTOBER 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The Application be dismissed. 2. The Applicant pay the Respondent's costs of the Application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1111 OF 2001 BETWEEN: JIAN XIN LIU APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: CONTI J DATE: 15 OCTOBER 2001 PLACE: SYDNEY REASONS FOR JUDGMENT Introduction 1 The Applicant Mr Jian Xin Liu (Mr Liu), pursuant to s 476 of the Migration Act 1958 (Cth), seeks review of the decision of the Migration Review Tribunal (the Tribunal) made on 25 June 2001, which affirmed an earlier decision of the delegate of the Minister made on 31 January 1999 that Mr Liu was not entitled to the grant of a spouse (Class BC), sub-class 100 visa, and that the same should be cancelled, with the consequence that Mr Liu was no longer entitled to be in Australia. Mr Liu was legally represented both before the Tribunal and before the Court. 2 The delegate's decision related to conduct on the part of Mr Liu which amounted to non-compliance with s 109 of the Act. Such non-compliance stemmed from a failure to provide correct information pertaining to his application for a spouse visa (see s 101). There was also found to be a failure on his part to notify the Department that a change in circumstances had occurred, such as to render information provided by Mr Liu in association with his application for the spouse visa no longer correct (see s 104). The reason given for the cancellation decision was that Mr Liu had "wilfully deceived the Department and entered into a contrived marriage with Ms Wu for the purpose of obtaining residency in Australia". 3 Section 101 of the Act provides as follows: "A non-citizen must fill in his or her application form in such a way that: (a) all questions on it are answered; and (b) no incorrect answers are given." The text of s 104 is as follows: "(1) If circumstances change so that an answer to a question on a non-citizen's application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer on an approved form of the new circumstances and of the correct answer in them. (2) If the application for the visa was made in Australia, subsection (1) only applies to changes in circumstance before the visa is granted. (3) If the application for the visa was made outside Australia, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared. (4) Subsection (1) applies despite the grant of any visa." 4 If the Minister is of the view that the holder of a visa, being "immigration cleared" has not complied with inter alia s 101 of the Act, the Minister must comply with the procedure set out in s 107 thereof, which procedural provision provides a visa holder with the opportunity to give reasons as to why his or her visa should not be cancelled by the Minister. The statutory framework requires the Minister to consider any response given by a visa holder, and then to make a decision as to whether there has been non-compliance by the visa holder in the way described in the notices (see s 108). 5 Section 109 of the Act provides as follows: "(1) The Minister, after: (a) deciding under section 108 that there was non-compliance by the holder of a visa; and (b) considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and (c) having regard to any prescribed circumstances; may cancel the visa. (2) If the Minister may cancel a visa under sub-section (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled." 6 Regulation 2.41 of the Migration Regulations 1994 (Cth) outlines the prescribed circumstances for the purposes of s 109(1)(c). It states: "For the purposes of paragraph 109(1)(c) of the Act, the following circumstances are prescribed: (a) the correct information; (b) the content of the genuine document (if any); (c) the likely effect on a decision to grant a visa or immigration clear the visa-holder of the correct information or the genuine document; (d) the circumstances in which the non-compliance occurred; (e) the present circumstances of the visa-holder; (f) the subsequent behaviour of the visa-holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act; (g) any other instances of non-compliance by the visa holder known to the Minister; (h) the time that has elapsed since the non-compliance; (i) any breaches of the law since the non-compliance and the seriousness of those breaches; (j) any contribution made by the holder to the community." Background facts 7 It is appropriate to first reproduce certain material findings of fact made by the Tribunal. Mr Liu is a citizen of the Peoples' Republic of China born on 20 July 1960. It is not in dispute that the circumstances surrounding the first occasion when Mr Liu and his former wife Ms Wu met were not spontaneous. In that regard, Mr Liu's brother arranged the opportunity for Mr Liu and Ms Wu to become acquainted. Mr Liu's brother had previously seen an advertisement by Ms Wu in the Chinese language newspaper known as "The Australian", which is published in Australia. The brother made contact with Ms Wu, and after meeting her in person in Australia, provided her with the means to communicate with Mr Liu in China. 8 As a consequence of such efforts of Mr Liu's brother, Mr Liu and Ms Wu first met in China in May 1994. For the next six months or so, they kept in touch by correspondence. During the Christmas period in 1994, Ms Wu met up with Mr Liu in Guangzhou in China. Soon after that meeting, Ms Wu returned to her home in Shanghai. It was only a few weeks later that Mr Liu and Ms Wu saw one another again. Ms Wu commenced residing with Mr Liu in his home town of Nan Chang in China. After living together for two weeks, they decided to marry, and they were married in Nan Chang on 6 February 1995. Ms Wu was by then about to return to Australia, and their honeymoon lasted only one day. She then went to Shanghai and arrived in Australia in late February 1995. Mr Liu remained in Nan Chang. 9 Mr Liu lodged an application for a migration visa on 24 April 1995. The application form contained a declaration to the effect that "I did not marry or enter a de facto/common law relationship to become eligible for migration to Australia. I understand that if I have given incorrect information, my application may be refused, I may be refused entry into Australia, or I could be removed after I arrive in Australia." Such declaration was signed and dated by Mr Liu on 10 March 1995, that is to say, about six weeks prior to lodgment of the application with the Australian authorities in China. 10 Mr Liu had not previously been involved in any marital relationship. Ms Wu, on the other hand, had previously been married, and had been also involved in a de facto relationship in Australia with an Australian citizen. Her first marriage ended in divorce in China on 14 February 1989. She did not obtain the custody of her son of that marriage until some six years later in January 1995, whereupon she brought him to Australia under the auspices of her sub-class 101 visa in the same year. Ms Wu came to Australia some years earlier on 5 January 1990 as a holder of a student visa and entered into the abovementioned de facto relationship between 15 February 1990 and 1 December 1993. She also obtained a sub-class 820 temporary spouse visa on 22 October 1992 and a sub-class 801 permanent spouse visa on 22 June 1993. 11 Mr Liu entered Australia on 18 January 1996 with a spouse (class BC) subclass 100 visa. On 5 February 1996, less than three weeks after his arrival in Australia, Mr Liu and Ms Wu separated. It is appropriate that I record the Tribunal's finding that there were differences between Mr Liu and Ms Wu as to the reasons why such separation occurred. In a letter to the department, Ms Wu alleged that the catalyst for their separation involved a statement by Mr Liu to her to the effect that "I did not mean to marry you, this is only to get permanent residence in Australia; and this may help in getting my mother to migrate to Australia". Ms Wu is said to have responded by demanding $6000 from Mr Liu, being the amount claimed to have been spent on her part for the purpose of assisting Mr Liu's migration to Australia. She said that she left him when he failed to respond to that demand. Despite the separation, Ms Wu endeavoured to obtain the $6000 allegedly owed to her, sending a friend to Mr Liu's sister's house to ask for the money. She claims to have never been repaid the amount so allegedly due to her. 12 Mr Liu, on the other hand, stated that the separation began when Ms Wu became angry with him upon discovering that he and his family were not as wealthy as she had first thought. She became increasingly cold towards him. On 6 February 1996 (18 days after his arrival in Australia), Ms Wu attempted to force him to sign a divorce application form which she had obtained from the Family Court of Australia. He refused to sign it. Ms Wu then left and some time later returned with four friends. She then demanded that Mr Liu sign an IOU agreement for $6000 due to her. When Mr Liu refused to sign the IOU, one of Ms Wu's friends attacked Mr Liu, allegedly punching him in the nose. Mr Liu claimed that he then left the flat where he was living, with a bleeding nose and reported the incident to the police. Although Mr Liu has since avoided any form of contact with Ms Wu, she is said to have nevertheless continued to threaten and harass his family in Australia. Police records were provided by Mr Liu to purportedly corroborate his testimony in relation to such matters of complaint. The Tribunal's reasons 13 After a detailed consideration of the facts and circumstances placed before it, the Tribunal proceeded to make findings as to the genuineness of the marriage of Mr Liu and Ms Wu. The Tribunal concluded that money had been a paramount consideration for Ms Wu from the commencement of their relationship and in fact, her primary interest in the relationship had always been that of financial reward. Although the Tribunal did not have the benefit of seeing the advertisement placed in the newspaper by Ms Wu for a marriage partner, it drew the inference from the material otherwise placed before it that Mr Liu's brother had been looking for a way to bring Mr Liu to Australia, by the expedient in effect of marriage to an Australian. Although Mr Liu gave the impression to the Tribunal of being sincere in his wish to commit himself to his marriage to Ms Wu, the Tribunal nevertheless drew the significant conclusion that Mr Liu would "have to be naive in the extreme to believe that his sponsor was motivated by love for him when considering her previous relationships, her advertisements, her declarations of enthusiasm for money and the short time she was prepared to spend with him before she returned to Australia". 14 The Tribunal also referred to letters passing between Mr Liu and Ms Wu. Whilst a number of these letters purportedly demonstrated Ms Wu's affection for him, they also included reference to the importance to her of Mr Liu being financially secure. For example, one of her letters stated "someone may offer A$30,000 to get me permanent residence. Money is very important to me and I had the view in the past and have the same view at present." 15 Although the Tribunal accepted that Mr Liu and Ms Wu did spend some time together before their separation, and that a true marriage can be based upon mixed motives of the partners involved, it concluded that Ms Wu for her part was at all times motivated by monetary gain rather than by love and affection. The Tribunal further concluded that she was not interested in building a relationship unless "it was to her advantage in money terms". Irrespective of whether it was Mr Liu or his brother who made promises to pay money to Ms Wu for sponsorship, the inescapable conclusion said to have been reached by the Tribunal was that Ms Wu had been led to believe, from whatever had been said by Mr Liu directly, or indirectly through his brother, that she would benefit financially from marriage to Mr Liu. 16 The Tribunal made findings in relation to the genuineness of the marriage, based upon inferences available from the entirety of the evidentiary material before it, as follows: "The brevity of the marriage casts doubt on the sincerity of the parties and the expectations of the sponsor that she would be paid for her role does not support a commitment to a genuine marriage. Whether or not the visa applicant was at fault in the sponsors having expected to be reimbursed for her expenses, the events that unfurled after his arrival support the view that the marriage was contrived from the beginning." Such "brevity of the marriage", involved little more than 18 days in duration, in terms of actual cohabitation (see [8] and [12] above). Tribunal then proceeded to summarise its findings as to the nature of the brief relationship between Mr Liu and Ms Wu as at 5 February 1996, as follows: "Tests for deciding when an applicant is the spouse of another are set out in the definition of spouse in Regulations 1.15A…There is no evidence of joint assets and liabilities. The visa applicant gave evidence that he took the sponsor's son to the beach and he did the vacuuming of the flat in Australia in the short time that he lived with sponsor. The evidence about the nature of the relationship all comes from the visa applicant and his family apart from one acquaintance who met the visa applicant at work and heard the visa applicant's story from him. On balance, the Tribunal finds that there was not a genuine commitment to marriage and that the visa applicant's motive was to gain residency in Australia and then to assist his mother to gain residency." The submissions 17 Mr Aitkin, who appeared for Mr Liu, submitted that the Tribunal committed an error of law in reaching its decision, within s 476(1)(e) of the Act. The particulars of such ground for review are stated to be that the Tribunal erred in failing to consider and determine whether or not Mr Liu's statement "I did not marry… to become eligible for migration to Australia" was incorrect, and secondly, that the Tribunal, in considering whether an incorrect statement of materiality had been made, erred by imputing the intentions of Ms Wu to Mr Liu. Mr Aitkin submitted that parties to a marriage may have different intentions, motives, and purposes, and that Ms Wu's purposes in going through a ceremony of marriage with Mr Liu are not to be equated with Mr Liu's purposes in going through the same ceremony. Mr Aitkin also submitted that the reasons for the decision of the Tribunal do not expressly purport to make a finding whether or not the marriage was contrived from the beginning, from the perspective of Mr Liu, or his wife, or both. 18 Mr Smith, who appeared for the Respondent, submitted that the wife's motivation in marrying Mr Liu is not irrelevant, and that when the Tribunal concluded that "the marriage was contrived from the beginning", the context of such a finding is one that may be considered by reference to the conduct of both parties. He further submitted that it was upon that footing that the Tribunal found that both parties were not sincere in their commitment to a genuine marriage. The Tribunal's consequential finding that Mr Liu entered into a sham marriage with Ms Wu in order to gain residency in Australia was one that was open to the Tribunal on the evidence which it found to have been established for its consideration and decision-making, and that no reviewable error had therefore been committed on its part. Was there an error of law? 19 I would first make some general observations about the institution of marriage as appraised by the common law in Australia. The motivation of parties to a marriage had been traditionally recognised or accepted by the common law of England of former times to have legitimate foundations referrable to property and estates. In R v Cahill [1978] 2 NSWLR 453 at 458, Street CJ observed in that regard as follows: "Quite apart from matters of religious teaching, it is known that marriages are at times contracted for reasons falling short of the more generally recognised purposes of entering into that relationship. In England in bygone days there were instances of celibate marriages being contracted for the purpose of affecting rights of inheritance of titles. The same situation exists both here and elsewhere in relation to marriages affecting rights of property succession. At times, marriages were or are entered into in connection with legitimation of existing or imminent issue of a since-terminated intimate relationship. The purposes and motives, equally as the hopes and anticipations, affecting two people when they enter into a marriage, are susceptible of too wide a variation to render it possible for the criminal law to classify some as offending, and the others as according with what is meaninglessly described as "community expectation", insofar as this may travel beyond the specifically prescribed concomitants of a marriage." The circumstances here involved are of course remote from such traditional considerations, or indeed the traditional considerations of other cultures which have been rightly respected and adopted in this country. More recently in Minister for Immigration, Local Government and Ethnic Affairs v Dhillon (Northrop, Wilcox and French JJ, 8 May 1990, unreported), a modern perspective of the common law in Australia, concerning cognisable motivations for marriage, has been restated as follows: "… people enter marriages with a variety of purposes and motives, hopes and anticipations, so that it is not possible to classify some purposes etc as according to what may be described as "community expectations". It is not necessarily inconsistent with a genuine marriage relationship that it was entered into by one or both parties with a view to material benefit or advancement, as for example with the hope of becoming eligible to reside in a particular country. The true test, we would suggest the only test, is whether at the time at which the matter has to be decided it can be said that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of others." I bear in mind such consideration in principle by way of preliminary approach to the issues raised by the Applicant. 20 In the present case of course, as the Tribunal correctly recognised, the task was to determine whether Mr Liu failed to provide correct information (s 101), or failed to notify the department of material changes his personal situation (s 104), being circumstances material to the issue whether his relationship with Ms Wu was a genuine and continuing one. In so doing, it was open to the Tribunal as the decision-maker, having regard in particular to the terms of Regulation 2.41 extracted in [6] above, to accept her version of the nature and history of her relationship with Mr Liu, to adopt the dictum in Singh v Minister for Immigration and Multicultural Affairs (Branson J, 20 February 1998, unreported) at 12. As emphasised in Dhillon in the foregoing passage cited in [19] above, which was also cited in Singh, the appropriate test as to whether or not persons are engaged in a genuine married relationship is whether the parties have a mutual commitment to a shared life as husband and wife to the exclusion of others, or to use the traditional expression, too the exclusion of "all others" (see also Migration Regulations 1994 (Cth) reg 1.15A). The Tribunal was entitled to find that such requirement was manifestly here lacking, given the circumstantial substrata to the marriage arrangements which the Tribunal found to have underpinned the marriage relationship formed between Mr Liu and Ms Wu, as exemplified by the events which happened after the agreement for marriage had been formed between them. 21 Contrary to the submissions of Mr Aitkin, the Tribunal did not limit the basis or reasons for its findings to the evident motivations of Ms Wu in entering into the marriage. Although the Tribunal did not determine whether it was the conduct of Mr Liu or his brother which induced an apparent assumption on the part of Ms Wu that she would be reimbursed for her expenses, and would also obtain some additional financial reward for marrying Mr Liu in the circumstances which the Tribunal duly found, it nevertheless found that Mr Liu must have known, before entering upon the marriage, that unless Ms Wu's expectations were fulfilled in those respects, the marriage would not in any event continue. Bearing those factors in mind, consistent as they are with the events which unfolded shortly after Mr Liu arrived in Australia (see [11] – [12] above), it was clearly open to the Tribunal to find that the marriage was contrived by both parties, and indeed from the outset, and that consequently Mr Liu had materially misstated answers to the questions provided for the purpose of obtaining his relevant visa. 22 The Tribunal also found that Mr Liu had intended from the outset to exploit the existence of his intending marriage to Ms Wu in order to enable his mother to gain residency in Australia, following upon his achieving such status. Such a finding was open to the Tribunal upon the material placed before it, bearing in mind that Mr Liu already had the advantage and potential assistance of a brother and a sister already residing in Australia, and Mr Liu's mother would have been more qualified for a migration visa under the balance of family test by virtue of the additional factor of his residence in this country. In that regard the department's records disclosed that Mr Liu's mother lodged an application for a migration visa on 9 April 1996, some three months after Mr Liu arrived in Australia. In the events which happened, his mother's visa was granted on 5 September 1997, and she arrived in Australia on a subclass 103 visa on 19 January 1998. 23 I would therefore conclude that this is not a case where the findings of the Tribunal pertaining to the motives and purposes of Mr Liu, in becoming married to Ms Wu, occurred by the Tribunal's process of supposedly imputing Ms Wu's adverse intentions to him. To the extent that the Tribunal took account of such intentions in addition to the conduct and testimony of Mr Liu, no error of law occurred. The conduct of one partner to a relationship does not necessarily occur in a vacuum from the conduct of the other. Realistically, human relationships are not of that order. The Tribunal appropriately examined the motivations of Mr Liu and concluded that he also did not possess a genuine commitment to the marriage, either in advance or from the outset thereof. In determining the propriety of one person's commitment to a marriage, the very nature of the task requires an evaluation, based on human experience, understanding and perception of the available spectrum of potentially relevant circumstances of each particular case. That was the task of evaluation which the Tribunal undertook with considerable care and attention to detail. Such are the nature and reasoning of the findings of the Tribunal that this Court should not in principle seek to disturb the same: see Mahfoud v Minister for Immigration and Ethnic Affairs (1996) 43 ALD 5 at 10-11 per Sackville J. 24 Finally, I turn to what was the first ground of review in the application before the court (see [17] above). Such ground was not pressed with any cogency of reasoning, and is without substance. The basis of the Tribunal's decision being that Mr Liu's marriage to Ms Wu was not genuine from the outset, it was clearly implicit from that conclusion that Mr Liu's statement on his application for a migration visa, to the effect that he did not enter the marriage to become eligible for migration to Australia, was false. 25 I dismiss the application and order that Mr Liu pay the Respondent's costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate: Dated: 15 October 2001 Counsel for the Applicant: Mr JM Aitkin Solicitor for the Applicant: Coroneos & Company Counsel for the Respondent: Mr J Smith Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 13 September 2001 Date of Judgment: 15 October 2001