1419342 (Migration)

[2016] AATA 3333

1419342 (Migration) [2016] AATA 3333 (23 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Lian Liao

VISA APPLICANTS:  Ms Yanhong Lu
Mr Guangzheng Cheng

CASE NUMBER:  1419342

DIBP REFERENCE(S):  2014023332

MEMBER:Alan Duri

DATE:23 February 2016

PLACE OF DECISION:  Sydney

DECISION:The tribunal affirms the decision not to grant the visa applicants Prospective Marriage (Temporary) (Class TO) visas.

Statement made on 23 February 2016 at 10:00am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration to refuse to grant Ms Lu and her son Mr Cheng Prospective Marriage (Temporary) (Class TO) visas under s.65 of the Migration Act 1958 (the Act).

2. Ms Lu was born in China in 1969 and resides in Shenzhen.  Her son Mr Guangzheng Cheng was born in 1996 and he is currently in Australia on a Subclass 573 student visa.

3. Ms Lu applied for the visa on 18 February 2014 on the basis that she was engaged to marry Mr Liao and Australian permanent resident.

4. Mr Liao was born in 1962 in China.  He first came to Australia on 2 March 2005 on a Subclass 309 provisional partner visa and he was granted a Subclass 100 permanent visa on 26 March 2007.  

5. The delegate refused to grant the visas on 24 October 2014 on the basis that Ms Lu did not satisfy cl.300.216 of Schedule 2 to the Migration Regulations 1994. The delegate did not accept that the parties genuinely intend to live together as spouses.

   Hearing

6. The review applicant Mr Liao appeared before the tribunal on 3 February 2016 to give evidence and present arguments. The tribunal also received oral evidence from Ms Jing Yuan and Ms Lu.  The tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. Mr Liao was represented by his registered migration agent Mr Jingxin Wu.

8. Before the hearing the tribunal received a variety of material including photographs, travel records, phone records wechat records and receipts.

   Mr Liao’s evidence

9. Mr Liao confirmed that he and Ms Lu are not yet legally married.

10. Mr Liao told the tribunal that he first met Ms Lu when he was visiting China to see his father who was ailing (he died later that year).  Mr Liao stated that through a mutual friend he went to drink some tea and he happened to be seated next to Ms Lu.  They had a meal together a few days later. 

11. The tribunal asked Mr Liao when he considered that a relationship developed between them.  Mr Liao gave very vague evidence as to when a relationship started and when they first discussed the concept of marriage.  Mr Liao indicated that he returned to China in July 2013 to see his father was in hospital.  He also went to see Ms Lu.  He recalled that during this trip there was a meal with various family members.

12. Ms Liao told the tribunal that Ms Lu works as a librarian.  At the time of the visa application she was living with her son and nobody else.  Ms Lu’s son (Mr Guangzheng Cheng the secondary visa applicant) is now in Australia on a student visa.  Mr Liao told the tribunal that he understands that Mr Guangzheng Cheng lives near Maroubra close to his school.  (Mr Liao lives in a room in South Hurstville and works as a bus driver.)  Mr Liao stated that he does not have a great deal of communication with Mr Guangzheng Cheng, but understands that when he first came to Australia he studied English.  Mr Liao does not know what Mr Cheng is currently studying.

13. The tribunal asked Mr Liao about any plans they have made to get married.  He said that they intend to get married on 16 August 2016.  Mr Liao gave very vague evidence as to how they will get married and eventually indicated that they will get married in a Chinese garden.  [At the conclusion of the hearing, Mr Liao’s migration agent gave the tribunal document indicating that on 3 February 2016 and authorised marriage celebrant received a notice of intended marriage for the couple to marry on 16 August 2016 at the Chinese Garden in Darling Harbour.]  

14. Mr Liao told tribunal that after their marriage they intend to live together with Ms Lu’s son, and they both intend to work.

15. The tribunal noted the department’s file contains a mention of an allegation that Mr Liao was involved in an organised group conducting immigration fraud.  Mr Liao denied this to be the case, and stated that his relationship with Ms Lu is genuine.

16. The tribunal noted that in October 2014 the department interviewed two of Ms Lu’s friends who had the impression that she was still living with her husband, Mr Haobin Cheng.  Both of Ms Lu’s friends indicated that they had participated in social activities with Ms Lu and Mr Haobin Cheng.  Mr Liao told the tribunal he was aware of the various statements.  He indicated that from time to time Mr Haobin Cheng would visit the household to see his son.

    Ms Jing Yuan’s evidence

17. Ms Yuan told tribunal that she was born 12 July 1955 in China and she came to Australia in 1986.  She stated that she knows Mr Liao very well.  She recalled that Mr Liao told her that he had met a woman in China and that they are intending to get married in 2014.  Ms Yuan stated that she was invited to the wedding.  The wedding never eventuated and Ms Yuan asked Mr Liao what had happened.  Ms Yuan said that she was told by Mr Liao that they intended to get married in August 2016.  Ms Yuan indicated that she has not met Mr Liao’s fiancée.  However, she considered that Mr Liao is an honest and hard-working person.  To her knowledge, Mr Liao is currently single. 

    Ms Lu’s evidence

18. Ms Lu told the tribunal that she and Mr Liao first discussed the topic of marriage in June 2013.  Ms Lu confirmed that up until that point they had only seen each other on two occasions in April 2013.  The first occasion was when they had tea together and the second occasion was lunch.  However, after Mr Liao returned to Australia they used to ring each other a lot and they developed feelings for each other.  They had an engagement party on 2 August 2013 at a restaurant.  Their engagement party had two tables.

19. Ms Lu indicated that at the time of the visa application she was working as a librarian.  She was living at her younger sister’s place with her son, who subsequently went to Australia study.  Ms Lu indicated that she separated from her former husband in the middle of 2012.

20. The tribunal noted department’s file notes concerning interviews with two of her friends.  Ms Lu told the tribunal that it was not unusual for her former husband Mr Haobin Cheng to visit the house because he still saw their son and also he needed to give her money for their son’s support.  Ms Lu suggested that she never told anybody that she had separated from her husband.  If they did not ask she did not tell.  Ms Lu disputed one of the comments on the file note when her friend Ms Liu was reported as stating that they all had a meal together in their home town. Ms Lu accepts that her ex-husband accompanied her to her home town because their son was about to go to Australia and they all returned home so that he could say goodbye to various relatives.  While Ms Lu agrees that she had conversations with Ms Liu on occasion, she disputes that they had a meal together.

21. The tribunal noted that her son was reported to have told the department that he recalled that she and her ex-husband separated towards the end of 2013.  This is in contrast to her earlier evidence that they separated in the middle of 2012.  Ms Lu suggested that the department put words into her son’s mouth.  She noted that he was studying at the time and under a lot of pressure.  She stated that he initially could not remember and she submitted that her son simply got the timing wrong.

    Comments/response to information

22. On 5 February 2016 the tribunal wrote to Mr Liao under s.359A of the Act invited in to comment on or respond to information.  In particular, the information included (1) statements made by some of Ms Lu’s friends to the effect that she was still in a relationship with her ex-husband and (2) allegations that the parties were part of an organised group involved with immigration fraud.

23. On 19 February 2016 the tribunal received a response by way of statements from Mr Liao, Ms Hai Mei Liu and Ms Xiao Ling Li.

24. Mr Liao provided the following comments concerning the department interview with Mr Guangzheng Cheng and the fraud allegations:

    “The son, Guangzheng Cheng, was studying at grade 2 at Shenzhen Senior Secondary School with mounting pressure for preparation of the national tertiary entry test.  The parents did not tell the divorce issue to the son, only to hope for him to concentrate on study for a good academic result.  He only knew a rough time for his father, moving out of the house.  Because he has been living at school for a long time and the matter for his father’s moving out past the long time before his answer to the interviewer, it is normal for him to have an unclear answer.

    “In China, people have a view on divorce as disgraceful and the couple fearful of loss face among the acquaintances.  Applicant did not openly tell classmates and good friends about the divorce while only to the knowledge of families.  Good friends and neighbours have formed an established view and they would mistakenly treated the three as a family when they happened to see them together.  Applicant and her ex-husband were from the same City.  They went together to see parents for the sake of face of all of the people involved.  It is submitted reasonable for friends in the home town has a perception that they were a family.  It was all about “FACE” get this fact of divorce confused.

    “Migration to another country is also a topic that is not good to mention in the Chinese government funded working places like my fiancée in the school.  It normally will affect the employer’s attitude to her if the application to migrate to Australia known by her employer, either directly or indirectly.

    “Allegation

    “The allegation noted is totally out of my knowledge.  I do not believe that was a creditable allegation.  It is believed that I would not be able to provide any evidence as to prove the thing that I did not do.  I felt guilty for the allegation to causes inconvenience to my fiancée and the lengthy assessment process on our application for us to reunion.  It is my intention to use the Freedom of Information approach to retrieve file from the government to make things clear.  It would be fair to have the evidence is to prove that I did not have any involvement as the alleged.

    “Basing on the above, I appeal to you, the honourable member, to consider the circumstances around the application and make a favourable decision to allow my fiancée to reunion with me, so we have more time to prove to the Department that we are in a genuine and continuing marriage relationship.”

25. Ms Liu’s statement of 12 February 2016 reiterated that at the time she had the impression that Ms Lu and Mr Haobin Cheng were still married as “divorce is an issue of personal privacy”.  Ms Liu noted that she lived in a different city to Ms Lu and that they had not met any times in each meeting was very short.  She concluded that “so what I have seen was shallow and superficial rather than reflections of the truth”.

26. Ms Li’s statement of 10 February 2016 indicated that she first became aware of Ms Lu’s divorce after a conversation with the departmental officer.  Ms Li provided:

    “After being neighbours for 10 years, I had a chance to have a holiday travel together with Lu Yanhong to Xiamen for the first time.  She said the purpose was to give the kid some relief from the stress of study.  During the travel they showed meticulous care for their kid.  But they (Lu Yanhong and Mr Cheng) seldom had communication.  I did not know why but they suddenly travelled back to Shenzhen, one day in advance.

    “Occasionally I would bump into Lu Yanhong or Mr Cheng, when they came back from work.  In our casual chat Lu Yanhong mention that she had a relative in Australia.  Not until later that I know that it was her fiancé.

    “Because the child was boarding, every weekend, Mr Cheng would bring the child back to home.  When we met occasionally we would exchange greeting as etiquette, and I did not know his situation in details.” 

27. Ms Li went on to add that in modern society it is common to see divorced couples taking their child out in public places.  She stated that her conversation with the departmental officer was about superficial things that she had seen “which are a far cry from the true circumstances”.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Do the parties genuinely intend to live together?

28. Clause 300.216 requires that at the time of application ‘the parties genuinely intend to live together as spouses’. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where those two people are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is recognised as valid for the purposes of the Act; there must be a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d). In considering an application for a Prospective Marriage (Temporary) (Class TO) visa, the tribunal may have regard to the considerations set out in r.1.15A(3) for spousal relationships: r.1.15A(4). Whilst it is not appropriate to consider whether the parties are spouses at the time of application or time of decision, an investigation of the parties’ intentions with regard to the definition of spouse in legislation may assist in determining the parties’ aspirations.

29. There is no claim that Ms Lu and Mr Liao have ever lived in a spousal or de facto relationship.  It follows then any finding concerning their intentions to live together as spouses relies to some extent on the credibility of the parties concerned. The parties indicate that they first met at yum cha in Shenzhen in April 2013.  They claim that they made a decision to get married in August 2013.  The visa application was made on 18 February 2014. 

30. Regarding the financial aspects, both parties have their respective sources of income.  The parties live in separate countries and as such have not established a household together.  There are no children from the relationship.  Based on various photographs it is clear the parties know each other and have undertaken social activities together.  The tribunal was provided with evidence of ongoing communication such as phone and wechat records.  The department’s movement records corroborate Mr Liao’s evidence that he has visited Ms Lu in China.  The tribunal also notes that there are statements from various people attesting to the relationship, including Ms Yuan who gave evidence at the hearing.  Both parties gave evidence to the effect that they provide each other with companionship and emotional support and see the relationship as being a long term one.

31. In summary both parties gave evidence to the effect that they are in a genuine relationship and that they intend to married and live together as spouses.

32. If the above information is accepted at face value then it would support a finding that the parties have a genuine intention to live together as spouses.

33. However, as noted above, there is information before the tribunal that cast doubt on the parties’ credibility, particularly about the nature of their commitment at the time of the visa application.

34. Regarding the allegation, the tribunal notes that the allegation is very broad and non-specific.  Therefore the tribunal does not place any weight on the mere fact that an allegation has been made against the parties that they are involved in migration fraud.

35. However, the department’s interviews with Ms Lu’s friends are more problematic.  Both Ms Liu and Ms Li who were reported to be friends with Ms Lu both indicated that they understood Ms Lu to be still married to and still living with her former husband Mr Haobin Cheng.  Significantly, both ladies provided information that they had socialised with Ms Lu and Mr Cheng in 2014.  This is in stark contrast to Ms Lu’s claims that she had separated from Mr Cheng in 2012 -well before the visa application in February 2014. 

36. The tribunal took into account the response to the s.359A letter. It is common ground that Ms Lu’s friends were not aware that Ms Lu and Mr Haobin Cheng were divorced.  The explanation is that that Ms Lu and Mr Cheng did not disclose their divorce for reason of face.  They undertook social activities together essentially for the sake of their son.  Be that as it may, the fact remains that at the time of the visa application Ms Lu’s friends had the impression she was living with and in a spousal relationship with her (ex) husband Mr Cheng.  The tribunal accepts that it is plausible for a person to take an “if they don’t ask don’t tell” approach to the status of his or her relationships.  However in this case the cumulative effect of the interviews with the two friends of Ms Lu strongly suggests that the relationship between Ms Lu and Mr Haobin Cheng was certainly perceived by others to be a married relationship.  Both of the interviewees know Ms Lu from different perspectives.  One is an old school friend, living in a different town, while the other friend is a neighbour. Significantly, the perception that Ms Lu and Mr Haobin Cheng were still spouses comes from two different sources.  These perceptions also need to be seen in the context of Mr Liao’s very vague evidence about the inception and development of his relationship with Ms Lu.  For example Mr Liao was unable to give any coherent account s to when and how the topic of marriage was raised.  

37. The combination of all the above concerns leads the tribunal to not accept that it has been given a true and full account about nature of the relationship between Mr Liao and Ms Lu at the time of the visa application.   

38. Accordingly, the tribunal is unable to be satisfied that at the time of application the parties had a genuine intention to live together as spouses.

39. It follows that cl.300.216 is not met.

40. For the reasons above, the tribunal finds Ms Lu does not satisfy the criteria for the grant of the visa.  This also means that her son Mr Guangzheng Cheng does not meet the secondary criteria for the grant of the visa.

    DECISION

41. The tribunal affirms the decision not to grant the visa applicants Prospective Marriage (Temporary) (Class TO) visas.

    Alan Duri
    Member