R v Gowda; R v Mashru [2018] QCA 31 (9 March 2018) is a landmark decision governing the provisions of section 240 of the Migrations Act, 1958. As per the provisions of the S. 240 (1) of the Migration Act, there shall be no arrangement of marriage with the sole intention of ensuring an applicant to get a stay visa by meeting the criteria of marriage[1]. In this case, the applicants appealed and they were accused of operating a scheme so as to make the an arrangement of representation of marriage between foreign nationals and an Australian woman, the intention was to get a stay visa and therefore the Court held that the appellants had violated the provisions of S, 240 of the Migration Act.
The case is important as it draws a relation between the validity of a marriage based on the intention of the parties and thereafter solemnization of a marriage with good faith. In this case, it was held that a marriage has to be first solemnized as per the provisions of the Marriage Act, 1961 and if the marriage is deemed void as per the Australian legislation then the subsequent arrangement of stay visa shall also be termed void[2]. Therefore, for a stay visa to be valid, the marriage has to be valid[3].
The issues raised in the case were governing the intention of the parties to arrange a marriage within a foreign national and an Australian woman with the intention of obtaining a stay visa. There is only one defence available to the parties to claim that the obtaining of the visa was with the view of obtaining a marital relationship. In cases when the parties are found to be in an arrangement of marriage to obtain permanent residence, the defence available to them is to prove that the parties genuinely believed that the marriage will be fruitful and that there will be a genuine marital relationship.
The main intention of the Act is to act in the national interest of the citizens and also in the best interest of the non-citizens to seek permanent residency in Australia. Under S. 240 of the Act, it is an offence to abuse the law to become a permanent residence by violating the principle provisions of residency. The case therefore talked at length about the governing laws that deem violating the laws punishable and no citizen is allowed to pretend to be in a de facto relationship to obtain permanent residency. The laws are specified for upholding the principles of marriage and it is a commitment between the husband and wife to live together in harmony. Therefore, the parties need to prove that there exists a de facto relationship or they are married under the Act.
The case therefore emphasises on the intention of Section 240 of the Migration Act where the intention of the parties is also important. Under S. 240, stay visa would mean a permanent visa implying that the person intends to stay permanently. In this case, the appellant claimed that the definition of spouse under reg 1.15A was satisfied and that as per the directives of the regulations, he was a spouse because he satisfied the conditions of s 5F(2) (a) to (c )[4]. The case also stated that emphasis has to be given to s. 5F(2) for which needs to be read with 1.15A(3).
There is no clear definition of valid marriage under the Australian legislation. The trial judge held that marriage means one that has been registered under the Marriage, Birth and Death Registry and only then will it be considered registrable[5]. The Case therefore is important because the Crown assisted the groom to get a stay visa thereby making it appear that the Spouse was an Australian citizen.
The Crown made a criterion for stay visa thereby intending to mislead the Visa agency. Therefore, the case is important because it laid down the principles under which a stay visa under section 240 is not valid and also who shall be treated as a spouse and when a marriage will be held to be valid[6]. The case is also important as it laid down the definition of marriage as well as de facto relationships and explained the goals and objectives of the Migration Act in granting stay visa.
Answer 2
This case is important as it helped in the statutory interpretation of the Australian legislations that deal with the definitions that are essential to the understanding of the judgment. The Migration Act and the Marriage Act are the two important legislations that have been interpreted in the case that state that the definitions are important. The court explained the meanings that were important in understanding the statutory implications of these legislations.
According to the provisions of Section 240 of the Migration Act, no party shall enter into any marriage agreement for the intention of creating a permanent residency in Australia[7]. The aim and purpose of the migration laws is to ensure that non-citizens stay in Australia but the intention of the parties is also important and should be taken into consideration. Under the provisions of section 240, it is an offence to use the marriage as a fraudulent means to enter into Australia to get permanent residency[8].
Along with the Migration Act, the case also talks about the statutory implications of the Marriage Act. Therefore, the marriage has to be valid as per the legislative provisions of the Migration Act. Coming to the statutory interpretation of the Acts, the Court has devised the fault element along with the physical element in determining the offence. The physical element is the act of conducting the marriage and getting into a marriage relationship.
The arrangement of the marriage is the physical act with the intention of getting the stay visa. The intention is the fault element[9]. To establish the fault element, the court has to show that the intention of entering into the marriage to satisfy the criteria of getting the permanent visa. Therefore, to establish offence, there has to be both the fault element as well as the physical element, the intention as well as the action
Therefore, to get a permanent visa as per section 240 of the Act, the person has to satisfy the criteria of the Marriage Act. As per the provisions of S. 238, if a person is applying for a visa, the person has to be a spouse as per the requirements of the reg 1.15A. There is no express definition and meaning of the term spouse and as per the interpretation of the reg 1.15A, the person has to be in a relationship of marriage keeping in mind the meaning and purport of the legislation[10].
The definitions under the reg for spouse did not provide in express terms that it applied to the definition under section 5F, the definitions under the reg for spouse did not provide in express terms that it applied to the definition under section 5F (3). Therefore, by understanding the meaning and intent of these provisions, it can be stated that a spouse is a married person who is in a relationship and also the provisions need to meet the requirements of section 5F (2)(b), (c) and (d).
The intention of the parties is of essence and the dispute is regarding proving that there is a relation between the parties and that there has been a valid marriage to the effect of obtaining the visa. The Court held in the case that the Crown has to be sure of the marriage and also the marriage has to be roved beyond reasonable doubt. The marriage has to be genuine and as per the requirements of the Marriage Act, the marriage has to be a union of two parties; that is the man and the woman and it has to be to the exclusion of others.
The court has therefore followed the principle of legislative interpretation to understand the express meaning and terminology of the legislative provisions[11]. The court has tried to interpret the legislative terminologies to bridge the gap between the interpretations of the two governing Acts which are relevant in the understanding of the present case. By expanding the meaning of ‘marriage’ and ‘spouse’ within the framework of the Marriage Act, the court has implemented the validity of the actions of the parties along with gauging the intention of them.
Therefore, by understanding the meaning and purport of the two acts along with their interpretations, the Court has delivered the judgment regarding the validity of the marriage and the permanent visa of the parties[12]. To establish that the application for permanent visa is legal, the marriage as per the provisions of the section 5F of the Marriage Act is necessary..
Australian Regulations 1994, R 1.15A.
Duffy, James, and John O’Brien. “When interpretation acts require interpretation: Purposive statutory interpretation and criminal liability in Queensland.” UNSWLJ 40 (2017): 952.
Godfrey, Bruce. “On appeal: Court of appeal judgments 1 to 31 March 2018.” Proctor, The 38.4 (2018): 41.
Godfrey, Bruce. “On appeal: Court of appeal judgments 1 to 31 March 2018.” Proctor, The 38.4 (2018): 41.
Grace, Jane. “Statutory interpretation in Australia [Book Review].” Ethos: Official Publication of the Law Society of the Australian Capital Territory 235 (2015): 42.
Guerette, Rob T. Migration, culture conflict, crime and terrorism. Routledge, 2016.
Jacobs, Keith. Experience and representation: contemporary perspectives on migration in Australia. Routledge, 2016.
Marriage Act, 1961, S. 45
Migration Act, 1958 S. 240(1).
Migration Act, 1961, S. 240.
Migration Act, 1961, S. 5F
Migration Regulations, 1994, R. 1.15A.
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