The Parliament of Australia possesses the act named The Migration Act 1958 which in legal terms deals with the entry and deportation of aliens and also other persons. In simpler terms, immigration to Australia is the main legislation that this act governs. It has been a number of times that this act has been subjected to the amendment. Prior to this act, the law that was prevalently existent in the Australian legal background was The Immigration Restriction Act, 1901. The Migration Act 1958 replaced this. The former act was responsible for the build-up of the White Australia policy and involved dictation tests. However, the Migration Act replaced this law and instead initiated entry permits on the basis of the visa system. This initiative also removed the discriminatory provisions that the Immigration Restriction Act 1901 encouraged.
In this given project the Section 240 of the Migration Act 1958 as enriched by the inputs of R v Gowda and R v Mashru will be discussed from the point of view of a migration agent so that the implications of the said act can be discussed in detail to the clients along with the principles of the interpretation that the judges employed while they made the latest provisions into the act. For this, a simple approach in language will be followed.
The decision to make changes in the already existing Migration Act was taken due to a few offences committed. The offenders either did not know of the effects of their action, or could hide underneath the blanket of the law that did not state their act to be criminal. This was before Gowda and Mashru appealed to the court for the changes to be made.
The offensive act that gave rise to the appeal of change by Gowda and Mashru happened under section of 240. The offence was committed by arranging a marriage with people from outside the country to help them obtain permanent residence in Queensland, Australia. However, it is quite understood that a marriage can be conducted between two people of different countries. that is why, section 240 of the Act has defined the concepts of ‘spouse’, ‘marriage’, ‘relationship’, which is completely and entirely central to the purpose of the change in the previously established law. That is to say, the terms have been defined by law, so that the previously established permanent residency criterion may not be abused by foreigners wanting to acquire permanent residency in Australia (Act, 2016).
As defined by the law, the two subjects under question must have a continuing shared life as husband and wife, or partners, to which they commit. Also, they must share a genuine relationship and must not live separated or apart on a daily basis Asis of origins.
However, if these conditions are not met, and the subjects do not intend to share a committed relationship or live a shared life, or abstain from such acts in the near future, the residency may be withdrawn. These conditions and changes in the previously acclaimed law are applied for both marriages and a de facto relationship. Also, if the migrated subject claims that they were looking forward to a happy relationship and a shared life, but it ended tragically early, they provide a defence. Also, if the previous resident of Australia claims that they were initially involved in the relationship to help their partner get a visa easily, but the relationship was not expected to quit so early, they provide defence against their offences (Dauvergne, 2018).
The major issue that is looked after in such cases is if the marriage really did or did not happen in the other countries. If the marriage is a valid one under the different conditions placed by the Marriage Act, 1961, then it is also considered valid, if looked at in the lights of section 240 of the Migration Act.
However, despite all the conditions that the rule asks immigrants to follow for marrying into the country, the actual aim of the law is to regulate the aims and objectives of the incoming and outgoing citizens and non-citizens of Australia. The reason for putting up so many laws is only to ensure and affirm the safety of the country and its citizens. If the reason for any immigration seems uncomfortable or unreliable, they are usually kept under surveillance for a while. Here is how the quick breakups or divorces play a role (He Khooa) is left to savoury.
If one married couple seems delighted to be granted the residency of the country, but split within a couple of months or less amount of time, it is usually considered doubtful. The subjects concerned are then further questioned to fully understand the motives behind the migration and the split. They are further kept under police custody for further investigation, and if a loose end is found that connects the dots, the investigation is further carried on until every sort of information is either extracted out of the subjects or is found out about them (Bensen, 2012).
Section 240 of subdivision B is a very important offence recorded in the law book of Australia. The entire Section B is dedicated to faulty marriages and is hence entitled, ‘Offences relating to abuse of laws allowing spouses etc. Australian citizens or permanent residents have to become permanent residents. Section 240 is itself named and deals in “Offence to arrange marriage to obtain permanent residence” (Vromans, 2012).
It is to monitor if someone she’s breathing away into the country, it is a way of safekeeping the citizens from further and unnecessary harm. A little background check of the immigrants does no harm to anybody. Also, keeping one eye open for their late-night activities may be helpful and may work as a surveillance system that acts as a blanket of protection over the city (Grewcock, 2012).
The trial judges threw light on the most important matters and directed the jury in the following ways:
They identify marriage as a life-long goal of a man and a woman, with the exclusion of any other person voluntarily entering their lives. However, they also call the marriages under concern as just marriages and try to find their genuineness. That is to say, how these marriages are tried to be aligned with the court-accepted marriages, and how they have failed (Apesin, 2012)
The Crown Case under observation is the case where the groom was asked to pretend like they were already married. This was to be done so that it was simpler for him to get back to the Visa centre and create a new Stay Visa so that he could get into the country and marry the woman he actually wanted to marry.
They said that even though the marriage could be sanctioned under the Marriage Act, it could never go beyond the higher organizations, where they would try to look at laws that would determine the motives of the immigration. Also, these arranged marriages cannot meet the criterion set for marriages in the Migration Act (Hugo, 2011)
They keep using the words marital relationship, instead of a married relationship, as that signifies that point that the marriage was valid and vital, with respect to the fact that the marriage certificate was signed by themselves, their witnesses and attested by a celebrated person – preferably a politician.
The judges also pointed out the facts that the appellants were a pair of migration agents and marriage celebrants, who were getting Stay Visas for men by getting them married in a supermarket in Australia. To put an end to such systems, regulations must be put in action and regular checking must be done. However, because of what he said they were, probably going to put a few things away (Opeskin, 2012).
In the given assignment a vivid and in-depth study of the Migration Act 1958 has been done n order to understand the implications of the decision that the judges made in the legal rule. This has given scope to develop an insight into Section 240 of the act regarding the marriage of two people within the geographical border of Australia. Marital relationship is an important term in this regard as used by the judges and the involvement of individuals from different spheres of work has also been outlined in this section. However, this can be undeniably agreed that the inputs regarding marital unison with respect to migration to and from Australia have explored every possible nuke and corner in the relative field.
Act, M., 2016. The federal register of Legislation. Australian Government.
Benson, M., 2012. How culturally significant imaginings are translated into lifestyle migration. Journal of Ethnic and Migration Studies
Dauvergne, C., 2017. Making people illegal. In Migrants and Rights (pp. 77-94). Routledge.
Grewcock, M., 2011. Punishment, deportation and parole: The detention and removal of former prisoners under section 501 Migration Act 1958. Australian & New Zealand Journal of Criminology
Khoo, S.E., Hugo, G. and McDonald, P., 2011. Skilled migration from Europe to Australia. Population, Space and Place
Capeskin, B., 2012. Managing international migration in Australia: Human rights and the “last major redoubt of unfettered national sovereignty”. International migration review
Schweitzer, R.D., Brough, M., Vromans, L. and Asic-Kobe, M., 2011. The mental health of newly arrived Burmese refugees in Australia: contributions of pre-migration and post-migration experience. Australian and New Zealand Journal of PsychiatryOrder Now