R v Gowda; R v Mashru

This interesting recent appeal was brought by the appellants to contest their convictions for attempting to arrange a marriage contrary to s 240(1) Migration Act 1958 (Cth). They argued that in the offence the reference to “marriage” was to a valid marriage under the Marriage Act 1961 (Cth) and as they had no intention to arrange a valid marriage no offence had been committed. Holmes CJ and McMurdo JA agreed.  A core element of an offence under s 240 is the intention to help a person obtain a visa by satisfying a criterion for the visa because of the marriage, and this necessarily required an intention to create a valid marriage.

Holmes CJ and Philippides and McMurdo JJA

9 March 2018

In this recent appeal, brought by the appellants in order to contest their convictions for 16 counts of attempting to arrange a marriage contrary to s 240(1) of the Migration Act 1958 (Cth), the court considered a unique point of law: whether the term “marriage” in s 240 meant only a marriage that was valid pursuant to the Marriage Act 1961 (Cth).

Briefly, the couple had allegedly operated a scheme by which they facilitated what they ostensibly claimed were marriages between foreign nationals and Australian citizens, with a view to the men obtaining visas to remain in Australia. That scenario occurred on 16 occasions during 2011 and 2012. [36]. They were ultimately charged with 16 counts of attempting to arrange a marriage, to assist the men concerned to obtain a stay visa by satisfying the criterion of the visa because of the marriage. [37]. Following a jury trial they were convicted on all counts and received custodial sentences. [38].

What is meant by a “marriage” in s 240(1) of the Act?

Section 240(1) prescribes that a person must not arrange a marriage between others with the intention of assisting one of those other persons to get a stay visa by satisfying a criterion for the visa because of the marriage.

The thrust of the appeal was that the bulk (at least 15) of the marriages the appellants had arranged were not valid, and did not have legal effect as a marriage under the Marriage Act 1961 (Cth). [39]. Accordingly, it was essentially argued that given the transactions were incomplete the appellants had not breached s 240(1).

Conversely the respondent submitted that pursuant to s 240(1), a marriage could be “either a valid marriage under the Marriage Act or a transaction which is described as something of a marriage although nothing of any legal effect”. Its view was that the steps taken by the appellants to arrange transactions which, in an application for a visa, could be represented as valid marriages, sufficed to make out the offence. [41].

The majority (Justice Philippides dissenting) favoured the construction proposed by the appellants, observing as follows:

• To be culpable, the appellants had to have been attempting to arrange a marriage which was valid pursuant to the Marriage Act; [42]
• In the large majority of cases, it was apparent that no marriage had in fact been solemnised in compliance with s 45(2) of the Marriage Act. In most cases, a certificate of marriage was prepared and signed in accordance with the requirements of the Act, however no accompanying marriage ceremony took place; [44]
• A core element of an offence under s 240 is the intention to help a person obtain a visa by satisfying a criterion for the visa because of the marriage. That is predicated by the existence of a valid marriage: “that criterion, or that part of a criterion, could be satisfied only by something which is a valid marriage. It could not be satisfied simply by a person causing the Minister to believe that the applicant is a party to a valid marriage. It follows that to commit an offence under s 240, a person must act with the intention of arranging a valid marriage.” [61]
• At trial, it was not the prosecution’s case that there was an intention to arrange a valid marriage, On a proper interpretation of s 240 the fault element requires an intention to arrange a valid marriage; [69]
• Above all, “the relevant mischief which is expressed within s 237 is not the attempt by some persons to get permanent residence by pretending to be legally married”. [70].

Critically, the appellants were not charged with offences under s 240, but instead with the offence of attempting to commit such an offence.

Accordingly, their criminal responsibility fell to be considered pursuant to s 11.1 of the Criminal Code (Cth). In short it was the court’s view that, whilst the prosecution did not have to prove that a valid marriage had resulted, it did have to establish, against each appellant, that he or she intended a valid marriage ought result. [73].

The appeal was allowed and the appellants were acquitted on all instances except for one count (where vows had been exchanged in front of witnesses). A retrial was ordered on that sole count. [74].

A de Jersey