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

Running head: MIGRATION LAW
MIGRATION LAW
Name of the student
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1MIGRATION LAW
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.

2MIGRATION LAW
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.