Jian Xin Liu v Minister for Immigration & Multicultural Affairs

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.