Interpretation of Section 240 of Migration Act 1958 (Cth): R v Gowda; R v Mashru [2018] QCA 31

This case analysis discusses the interpretation of Section 240 of Migration Act 1958 (Cth) in R v Gowda; R v Mashru [2018] QCA 31. It clarifies that for prosecution under section 240, a valid marriage must have been attempted for obtaining a visa. The case also discusses the Defence provided under subsection 3 of section 240 and the rules of statutory interpretation used by the court.

Running head: MIGRATION LAW
Migration Law
Name of the Student
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Author Note

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R v Gowda; R v Mashru [2018] QCA 31
The issue which had to be addressed in this case is in relation to the provisions of section 240
of the Migration Act 1958 (Cth). The appellants in this case are convicted of violating the
section. The offence is related to those persons who arrange marriage between two other persons
for the purpose of providing assistant to one of them so that they can obtain a permanent
residency in Australia1.
It has been provided through the provisions of section 240 of the legislation that an individual
should not arrange a marriage between two other people having the intention of providing
assistance to one of them so that he or she can obtain a visa through satisfying a criterion for a
permanent residency visa because of marriage. The applicability of this section is irrespective of
the fact that intention is achieved or not2.
The section also provides a Defence in relation to the breach of subsection 1. It is provided
through subsection 3 that it would be a defence for the defendant if they are able to show before
the court that even where the purpose of marriage was to provide assistant to a person to get a
permanent residency visa there was belief in good faith on the part of the defendant and on
reasonable Grounds that the marriage would lead to a continuing and genuine marital
relationship. The breach of this section leads to a penalty of $100000 along with and
imprisonment of 10 years or both. The legal burden is on the defendant to prove the grounds of
Defence in subsection 3. In this case The Appeal had been allowed by the court. The court had
ordered to set aside the conviction of the appellant on all counts, except for count 32.
1 R v Gowda; R v Mashru [2018] QCA 31 at 3
2 Migration Act 1958 (Cth) s 240

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One of the appellant in this case was a registered migration agent and the other appellant was
an authorised marriage celebrant. They had operated a scheme together with respect to which
they represent it something to be marriage between Australian woman and a foreign national so
that the foreign national would be able to obtain a visa for the purpose of remaining in Australia.
This took place 16 times during the year 2011 and 2012. The primary question in this appeal
was related to the meaning of marriage under the provisions of section 240. It had been argued
by the appellants that the meaning of marriage under the section is a marriage which has legal
effect under the provisions of the Marriage Act 1961. They argue that at least 15 of the ground
did not constitute of a valid marriage. The argument of the respondent was that the meaning of
marriage under the provisions of section 240 be either a valid marriage in relation to the
Marriage Act or any transaction which is described somewhat like marriage although it may not
have a legal effect. It was argued by the respondent that what the appellant were seeking to
achieve was a valid marriage under the provisions of section 240. In relation to such argument it
was stated by the respondent that the applicants made an attempt to arrange transactions which
were somewhat like marriage for the purpose of applying for a visa, and such transaction could
be represented as a valid marriage and was sufficient to breach the provisions of section 2403.
On fifteen of the occasions it was conceded by the respondent that there was no marriage
which complied with the provisions of section 45 of the Marriage Act. In fourteen of such
occasion there had been a marriage certificate prepared and signed in compliance to Section 50
of the Act. However there was no marriage ceremony which took place and there was no
argument made by the respondent got the certificate of marriage had evidentiary significance. It
3 R v Gowda; R v Mashru [2018] QCA 31 at 47

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is clearly stated in section 48 that non compliance with section 45 will render a marriage invalid.
Therefore in 15 of the argued occasions there was no marriage at all4.
The purpose of the migration Act as stated in section 4 states that the legislation regulates in
National interest the presence and incoming of non citizens in to Australia. In relation to the
objectives, the ministers are provided power to give permission to non citizens to remain and
enter in Australia by providing various visas. The type of visa which is relevant in the situation is
subclass 820 temporary partner visa. In this situation the applicant is required to be either being
married or be in a de facto relationship with an Australian citizen or permanent resident. The visa
would only be granted in situation where the two concerned person are married to each other
according to the provisions of the Marriage Act5.
Through the provisions of section 237 of the Migration Act it can be stated that the essential
ingredient of a married relationship is that the parties have to be married to each other under a
marriage which can be considered valid for the purpose of the act. However it had been argued
by the respondent that a marriage with had been rendered invalid by the Marriage Act can be
considered as a valid marriage under the provisions of section 240 of the MA. In the view of the
judge neither the argument provided by the respondent nor the decision provided by the trial
judge were proper interpretation of section 240. The physical element required for committing an
offence with respect to Section 240 is arranging a marriage. The satisfaction of such criteria can
only be achieved when there is a valid marriage. Therefore there must be an intention to arrange
a valid marriage on the part of the appellant to satisfy the fault element. The interpretation of the
section can be supported by the comparison of section 240 with section 241 along with section
237. A person cannot be prosecuted under the section where they have attended to get a visa by
4 R v Gowda; R v Mashru [2018] QCA 31 at 60
5 R v Gowda; R v Mashru [2018] QCA 31 at 65

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pretending to be legally married. Therefore in the given situation the appellants cannot be
charged of an offence against section 240 rather a separate offence of attempting to breach
section 240. However such offence has not been claimed by the prosecution in this case6.
The primary implication of this case is in relation to the interpretation of Section 240 of the
MA. It has been clarified by this case that for the purpose of able to prosecute someone under the
provisions of section 240 the prosecution must prove before the court that there was a valid
marriage which had been attempted by a person for the purpose of obtaining the visa. This action
cannot be held to have been violated if the person was only pretending that there is a valid
marriage for the purpose of gaining a visa for other party. It has been provided through the
provisions of section 240 of the legislation that an individual should not arrange a marriage
between two other people having the intention of providing assistance to one of them so that he
or she can obtain a visa through satisfying a criterion for a permanent residency visa because of
marriage. The applicability of this section is irrespective of the fact that intention is achieved or
not. In addition section 237 clarifies that two people will considered to have been married when
there is a valid marriage between them under the Marriage Act7. The interpretation of the section
can be supported by the comparison of section 240 with section 241 along with section 237. A
person cannot be prosecuted under the section where they have attended to get a visa by
pretending to be legally married. Therefore in the given situation the appellants cannot be
charged of an offence against section 240 rather a separate offence of attempting to breach
section 240. However such offence has not been claimed by the prosecution in this case. On
fifteen of the occasions it was conceded by the respondent that there was no marriage which
complied with the provisions of section 45 of the Marriage Act. In fourteen of such occasion
6 R v Gowda; R v Mashru [2018] QCA 31 at 68
7 Migration Act 1958 (Cth) s 237

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there had been a marriage certificate prepared and signed in compliance to Section 50 of the
Act8. However there was no marriage ceremony which took place and there was no argument
made by the respondent got the certificate of marriage had evidentiary significance. It is clearly
stated in section 48 that non compliance with section 45 will render a marriage invalid9.
Therefore in 15 of the argued occasions there was no marriage at all and the appellants were
rightly not guilty10.
The rules of statutory interpretation which has been used in this case are those which are
provided in Section 15AA of the Acts interpretation act 190111. In this section it has been
provided that when the court is addressing the issue of providing meaning to a provisions of
legislation it has to provide preference to the meaning with his in compliance to the object of the
legislation over any other interpretation. In addition the court relied on the principles that when
any meaning is provided to the provisions of a legislation the court has to take into consideration
things surrounding the provision such as other sections, purpose of legislation, any design or
notes. The Mischief rule of statutory interpretation and also been used by the court in this
situation.
8 Marriage Act 1961 (Cth) s 50
9 Marriage Act 1961 (Cth) s 48
10 R v Gowda; R v Mashru [2018] QCA 31 at 74
11 Acts interpretation act 1901 (Cth) s 15AA

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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