Implications of R v Gowda; R v Mashru [2018] QCA 31 on Migration Law

This article discusses the implications of R v Gowda; R v Mashru [2018] QCA 31 on section 240 of the Migration Act 1958 (Cth) related to arranging marriage for permanent residency in Australia. The article explains the case, the issue addressed, and the rules of section 240. It also discusses the defense given by the section for breaching the subsection 1 and the penalty for the same. The article further explains the meaning of marriage as per the section 240 and the statutory interpretation used in the case.

Running head: MIGRATION LAW
Migration Law
Name of the Student
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1MIGRATION LAW
To
Subject: Implications of R v Gowda; R v Mashru [2018] QCA 31
Respected Sir/Mam
In the case of R v Gowda; R v Mashru [2018] QCA 31, the issue that needs to be addressed is
related to the rules of the section 240 of the Migration Act 1958 (Cth). In the above-mentioned
case, the appellants have been convicted to violate the section. The fault is in relation to those
people who arranges marriage among the two person to provide help to one of them who is in
need of the permanent residency in Australia1.
According to the section 240 of Migration Act 1958, it has been stated that no person should
arrange marriage among the other two people while having the purpose of helping to one of them
to gain visa by clearing the criteria for the permanent residency visa due to marriage. The above-
mentioned section is only applicable whether the intention has been accomplished or not2.
A defense has been given by this section for breaching the subsection 1. Subsection 3 states
that it will be a defense for the defendant only if he can express in the court that the purpose of
the marriage was not to help to get the permanent residency visabut the marriage was done in
good faith from the side of the defendant and it will continue genuinely. The penalty is $100000
and ten years of imprisonmentif the section is breached. The court allowed the appeal in this
case.
1 o da Ma r AR v G w ; R v sh u [2018] QC 31
2Mi ration Act tg 1958 (C h) s 240

2MIGRATION LAW
In the abovementioned case, one of the appellants was said to be the registered migration
agent and another one was an authorized marriage participant. They made a scheme like they had
represented this as marriage amongst a foreigner and an Australian woman and this happened so
that foreigner can get a visa to stay in Australia. In this appeal, the first question was in relation
to what is marriage according to the rules of the section 240. The appellant argued that the
definition of the marriage has been given in the Marriage Act 1961 and it also has the legal
effect. They also argued that fifteen of the grounds at least did not found it to be a valid
marriage. The respondent argued that as per the section 240, the definition of marriage, either be
a lawful marriage with respect to Marriage Act or any kind of transaction that will be described
here will not have the legal effect. According to the provisions of the section 240, the respondent
argued that what appellant wanted to gain was a lawful marriage. The respondent stated that the
attempt that was made by the applicant to arrange such transactions that was slightly like
marriage to apply for visa and this can be signified as a lawful marriage and it was enough to
break the rules of the section 2403.
On the 15 ground, the respondent agreed that no marriage was there that meets the terms of
the section 45 of the Marriage Act. In 14 of the ground, it was seen that there was a certificate of
marriage and it was signed as per the section 50 of the Marriage Act. No marriage was taken
place and the respondent made no argument but he got the marriage certificate that had the
significant evidences. It has been clearly mentioned in the section 48 that if there is no
compliance of this marriage with the section 45 then this marriage will be consider as the invalid
marriage. Therefore, there was no marriage between them in the fifteen of the ground4.
3 o da Ma r AR v G w ; R v sh u [2018] QC 31
4 o da Ma r AR v G w ; R v sh u [2018] QC 31

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According to section 4, the purpose of the Migration Act, states that the legislation controls
the presence, national interest and the incoming of the non- citizens to Australia. According to
the purposes, the ministers have been given some powers to permit the foreigners to enter and
remain in this stateby way giving different visas. Subclass 820 temporary partner visais that kind
of visa that is relevant in this state. The applicant in the above-mentioned situation is needed to
be married or to be in genuine relationship with the citizen of Australia or with the permanent
resident. As per the provisions of the Marriage Act, both the concerned person must be married
then only the visa will be granted to the person who requires it5.
The appellant argued that the meaning of the marriage has been given in the Marriage Act
1961 and it also has the legal effect. They also argued that 15 of the grounds at least did not
found it to be a valid marriage. The respondent argued that as per the section 240, the meaning of
the marriage, either be a valid marriage with respect to Marriage Act or any kind of transaction
that will be described here will not have the legal effect. According to the rules of the section
240, the respondent argued that what appellant wanted to gain was a valid marriage. The
respondent stated that the attempt that was made by the applicant to arrange such transactions
that was somewhat like marriage for applying for visa and this can be signified as a lawful
marriage and it was enough to breach the provisions of the section 240.
There are certain rules of the statutory interpretation that has been used in the above
mentioned case are those that has been given in the Section 15AA of the interpretation Act
19016. According to the section 15AA, it has been explained that the issue that is being
addressed by the court to provide the meaning according to the rules of the legislation and it
must be in accordance to that intention through which the meaning has been generated.
5 o da Ma r AR v G w ; R v sh u [2018] QC 31
6Act interpretation act t AAs 1901 (C h) s 15

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Furthermore, there are certain principles that the court depended on to provide any kind of
meaning to the rules of the legislation, the court considers other section, notes, designs or the
purpose of the legislation.The statutory interpretation’s Mischief Rule was used in the above-
mentioned situation by court.
Thanking You

5MIGRATION LAW
Bibliography
Acts interpretation act 1901 (Cth) s 15AA
Marriage Act 1961 (Cth)
Migration Act 1958 (Cth)
R v Gowda; R v Mashru [2018] QCA 31