Implication Of R V Gowda; R V Mashru On Section 240 Of Migration Act 1958 (Cth)

You are a registered migration agent. Your client wants you to explain in plain English, in a letter of advice the following:

1. The implications of the decision of R v Gowda; R v Mashru [2018] QCA 31 (9 March 2018) (case attached) in terms of section 240 of the Migration Act 1958 (Cth).
2. The principles of statutory interpretation (if any) that were employed by the judges in construing the provision.

Background on Migration Act 1958 (Cth)

To

The Client

Australia

Subject: Implication of following cases regarding section 240 of Migration Act 1958 (Cth)

Respected Sir/Madam

This letter of advice will discuss about the grounds of section 240 of Migration Act 1958 and certain case laws are discussing to make you understand about the implication of the cases regarding the section on migration law.

In Australia, migration related matters are of great importance and therefore, certain provisions have been inserted in it. The Migration Act deals with certain rights and duties regarding entering and staying in the continents of Australia. An authority takes care of all related problems and issues related to the migration problems named Department of Immigration and Border Protection. However, there are certain provisions in the Act that prohibits an individual to take decisive steps for obtaining visa for Australia. There are certain cases where it has been observed that he parties are arranging marriage for obtaining permanent residence visa in Australia. In this case, section 240 has been inserted in the Migration Act 1958. According to this section, if any person has been caught for arranging matrimonial ceremony in Australia with an intention to obtain residential visa in Australia, he will be liable and penalties will be imposed on him. However, certain exceptions are there against this rule under section 240(3) of the Act. According to this, if any person could prove that obtaining visa is not the only reason, but continuing marital relationship is also the intention, penalties will not be imposed on them. However, according to section 13.4 of the Criminal Code, the defendant has to prove his innocence in section 240(3) and in this case, burden will be imposed on him.

In this regard, certain cases have been lodged in Australia and proper interpretation of those cases could help to understand the scope and application of section 240 on the migration issues. In this letter of advice, proper citation relating to R v Gowda; R v Mashru has been given and implication of this case over the migration law will also be discussed.

This case will help to clarify certain applications of the Migration Act. It has been mentioned under section 240(1) of the Migration Act, if any party arrange marriage in Australia with an intention to get the residential visa, he will be liable under the section and will be penalised. However, in this case, a question has been arisen. It has been questioned that if the marriage has not been validated, then whether the defendants will be acquitted or not. For the validation of the marriage, it should be solemnised under the Marriage Act 1961 (Cth). Therefore, dilemma has been made on the fact that whether the provision of section 240 is imposed on the valid marriage only or not.

In Australia, many sections enable the non-citizens to be entered into Australia and stay there. According to section 30 of the Act, the validation of the visa can either be permanent or temporary. According to section 29 of the Act, a non-citizen could get a permission to stay in Australia for certain grounds. However, it has been stated by court that individual is not allowed to abuse the legal proceedings. They are not allowed to take any excuse to abuse the law and there are certain provisions mentioned in the Migration Act that are strictly imposed on the offender in this regard. On the other hand, there are certain lacuna observed in the legal interpretations that created dilemmas. According to section 240(1) of the Migration Act, it will applicable ion the matters where the marriage has been made under the Marriage Act 1961. Therefore, a question has been arisen that if the marriage has not been solemnised under the Marriage Act, should not they be held responsible under section 240 of the Migration Act. The case of R v Gowda has revealed certain solution in this regard.

Overview of section 240

Certain exceptions are there in section 240(3) of the Migration Act, where it has been stated if the accused could prove that the marriage has been done in good faith, the provision of section 240(1) will not be applicable on this case. The main issue in this case is to decide whether the marriage has been solemnised in this case is valid or not. The main purpose of this Act is to secure the national interest and three grounds are therefore, required to be established in this regard. The first issue is that whether the proposed marriage has been commenced to obtain permanent residence visa or not. It is also required to prove whether there is any pretention to help other to get the permanent residence in Australia or not. Further, it is to be proved whether any false statement has been made regarding the de facto relationship of any person or not. This case also reviews certain factors to prevent the abuse of permanent residential criteria. The spouses have to fulfil the criteria mentioned under section 5F (2) of the Act to prove the good faith of the event. If it has been observed that the couple has entered into the matrimonial relationship without an intention to continue the de facto relationship, they will be held liable under section 240(1) of the Migration Act 1958. Further, certain duties have been imposed on the minister to decide the case on certain terms and conditions. If the acts of the parties have attracted the provision of section 5F (2) of the Act, it will be considered by the ministers[6]. However, there is no specific definition has been provided in any Act on valid marriage. Certain facts are required to be proved in this context. At first, it is to be proved whether the marriage has been arranged by the accused or not. Further, it is to be proved whether the couple has entered into the marriage voluntarily or not. Therefore, genuine marital status is the main issue in this case.  

According to the facts of the case, the appellant was a celebrant and he has conducted the matrimonial rituals among the couples. However, the process he had been taken was not covered under section 5F (2) of the Marriage Act 1965. In this case, the court has concentrated on the attempt made to realise the relationship between the spouses. The court has observed in this case that if the main intention behind the marriage is to make a genuine relationship in between the parties, the accused could make the plea under section 240(3) of the Migration Act. However, if there is a pretention to convey such relationship, it will be punishable in nature; though section 240 does not make pretention as a source of such offence. The section has concentrated on the intention of the accused. According to the court, the accused should held liable for their pretention, but for their attempts to make a marriage valid. It has been observed that the appellant has ignored all his obligations and represent the marriage as valid. However, no vows have been made in this case. In this case, no allegation has been made that the appellant has arranged a valid marriage. Further, no marriage certificate has been prepared or signed between the parties as per section 50 of the Marriage Act. According to section 4 of the Migration Act, the aim of the Act is to provide the non-citizens the right to stay in the provinces of Australia. The partners could apply for sub-class 820 of Migration Regulations 1994 for obtaining temporary visa. Considering the provision of section 5F, it can be stated that there is no mutual commitment has been made between the parties and the relationship between the parties was not genuine. According to section 241(1) of the Migration Act, no matrimonial arrangement should be made if the parties have no intention to create de facto relationship between them. However, there are certain differences between section 240 and section 241 of the Act and certain mistake has been made by the Trial court in order to make proper interpretation of section 240 in this case. In this case, the opponent parties have failed to prove the fact that the marriage was valid according to section 240 of the Migration Act and therefore, the Appeal court has acquitted the accused.

This case is quite significant to understand the proper application of section 240 of the Migration Act and a wide judicial interpretation has been made in this ground. Further, it has been provided that the marriage should be valid in nature to attract the provision of section 240. Certain differences have been made in between section 240 and section 241 of the Act and a concise discussion has been made on the Marriage Act to this extent. Therefore, you are advised to maintain all the elements of section 240 and make the marriage valid to every extent.

Jacobs, Keith. Experience and representation: contemporary perspectives on migration in Australia. Routledge, 2016.

Donnelly, Jason. "Utilisation of National Interest Criteria in the Migration Act 1958 (Cth)-A Threat to Rule of Law Values." Victoria UL & Just. J. 7 (2017): 94.

Godfrey, Bruce. "On appeal: Court of appeal judgments 1 to 31 March 2018." Proctor, The 38.4 (2018): 41.

Marriage Act 1961 (Cth)

Migration Act 1958 (Cth)

Perry, Melissa, and Kristen Zornada. "Working with interpreters: judicial perspectives." Bar News: The Journal of the NSW Bar Association Autumn 2015 (2015): 20.

R v Gowda; R v Mashru [2018] QCA 31

Schilling, Meredith. "Migration law [Book Review]." Victorian Bar News 160 (2016): 96.

Townsend, Joel. "Adequacy of Risk Assessment in the Exercise of the Character Cancellation Power under the Migration Act 1958 (Cth)." PUBLIC LAW REVIEW 28.2 (2017): 158-178.