Implication of Section 240 of Migration Act 1958 (Cth): Case Analysis

This letter of advice discusses the grounds of section 240 of Migration Act 1958 and certain case laws to understand the implication of the cases regarding the section on migration law. Proper citation relating to R v Gowda; R v Mashru has been given and implication of this case over the migration law has also been discussed. The letter also discusses the statutory implication of the case.

Running head: MIGRATION LAW
MIGRATION LAW
Name of the student
Name of the university
Author note

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Letter of Advice
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 Australia1. 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
1Donnelly, 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.

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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 Mashru2
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)3. 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 grounds4. 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
2 R v Gowda; R v Mashru [2018] QCA 31
3 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.
4 Schilling, Meredith. "Migration law [Book Review]." Victorian Bar News 160 (2016): 96.

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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.
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 case5. 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 ministers6. 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.
5 Aronson, Mark. "Between Form and Substance: Minimising Judicial Scrutiny of Executive Action." Fed. L.
Rev. 45 (2017): 519.
6 Jacobs, Keith. Experience and representation: contemporary perspectives on migration in Australia.
Routledge, 2016.

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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.
Statutory implication:
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

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intention to create de facto relationship between them7. 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 case8. 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.
7 Perry, Melissa, and Kristen Zornada. "Working with interpreters: judicial perspectives." Bar News: The
Journal of the NSW Bar Association Autumn 2015 (2015): 20.
8 Godfrey, Bruce. "On appeal: Court of appeal judgments 1 to 31 March 2018." Proctor, The 38.4 (2018): 41.

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Bibliography:
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.