LML6001 Practitioner Legal Skills For Australian Migration Law

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LML6001 Practitioner Legal Skills For Australian Migration Law

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LML6001 Practitioner Legal Skills For Australian Migration Law

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Course Code: LML6001
University: Victoria University

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Country: Australia

Question:

Assessment Criteria

Accurate answers to the questions demonstrating knowledge of statutory interpretation, case law, legislative and regulatory provisions.
Answers are justified by clear reference to the relevant facts, identify logical assumptions you have made about the facts in answering questions.
Arguments and information are clearly and logically presented.

QUESTION
You are a registered migration agent. Your client wants you to explain in plain English, in a letter of advice the following:

The implications of the decision of R v Gowda; R v Mashru [2018] QCA 31 (9 March 2018) (case attached) in terms of section 240 of the Migration Act 1958 (Cth).
The principles of statutory interpretation (if any) that were employed by the judges in construing the provision

Answer:

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 Australia.
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.
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.
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 240.
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 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 all.
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 Act.
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 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.
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 Act. 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 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 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 all and the appellants were rightly not guilty.
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 1901. 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.
References
Acts interpretation act 1901 (Cth) s 15AA
Marriage Act 1961 (Cth)
Migration Act 1958 (Cth)
R v Gowda; R v Mashru [2018] QCA 31

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