Jian Xin Liu v Minister for Immigration & Multicultural Affairs

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.

Solicitor for the Respondent: Australian Government Solicitor