Australia: Marriage a one-stop visa shop

A Brisbane court has recently heard of a string of fake marriages orchestrated by Migration agent Chetan Mashru and his marriage-celebrant wife, Divya Gowda, between March 2011 and March 2012.

The background

In order to obtain permanent residency in Australia through spousal visas, 15 Indian men were "married off' to Australian women under the scam. However, Section 240 of the Migration Act makes it an offence to arrange a marriage for the purposes of obtaining an Australian visa.

Leilani May was one of the 16 Australian brides and testified about her fake marriage to Indian citizen, Amritpal Singh, in 2011. The court heard that the couple forged documents and a statutory declaration to prove their marriage with the help of Chetan and Divya. Leilani was paid $1000 in cash up front and $250 into her bank account every week afterwards by her husband for her part in the marriage.

Leilani admitted to the court that the statutory declaration provided to verify her relationship was false, and that the only truth it contained was the fact that she loves curry, which in itself was not sufficient to prove her relationship to Mr Singh. Under Section 245 of the Migration Act, it's an offence to create false statements in proving a genuine relationship.

Josephine Haig and Pradeep Singh were another couple involved in the scam, with Josephine to receive a total of payment $30,000 over two years. She was also asked by Chetan and Divya to change her address to match Pradeep's.

Another Australian woman in the scheme, Alina Buza, was told to set up joint bank accounts and credit cards, to go out for dinner with her 'husband' and take photos, and to text her faux partner to create evidence of a genuine relationship.

Prosecution Barrister, Greg Lynham, compared the marriages to Channel Nine's television show 'Married at First Sight' with the couples only meeting on the day of the wedding. There was also no exchanging of vows and no wedding dress - the couples merely exchanged and signed documents at Chetan and Divya's Brisbane townhouse.

Certain criteria must be met before a union between two people can be characterised as a "marriage" (defined in the Marriage Act as the 'union of a man and a woman to the exclusion of all others, voluntarily entered into for life').

There are also certain ceremonial requirements of a marriage, as outlined in the Marriage Act, including that:

  • The parties are over 18 years old;
  • The marriage is solemnised in the presence of an authorised celebrant;
  • The necessary notice and documents are provided; and,
  • A witness present when the marriage takes place.

As in the present case, intentionally misleading government officials and providing false documentation in order to migrate to Australia and/or obtain a visa is fraudulent activity, known as migration fraud. Under the Marriage Act, a marriage is void if consent is obtained through fraud or duress. Whilst the case involving Chetan and Divya showed that both parties were aware of the intentions in the marriage, In The Marriage of Hosking (1995) FLC 92-579 stands for the authority that "fraud" as detailed in the Marriage Act was limited, and concerns the nature of the ceremony.

In the case involving Chetan and Divya, given the nature of the ceremonies - the mere signing and exchanging of the documents between the two parties – the lack of fanfare would lead many to question how genuine the relationships were, despite documents being a necessary formality in validating a marriage.

Other cases in the courts

In The Marriage of Hosking, the wife married, fully aware that it would extend her residency in Australia, and led her husband to believe that after the marriage ceremony, they would live together. The court determined that the husband was induced into the marriage by fraud on the part of the wife.

Similarly, In The Marriage of Deniz [1977] FLC 90 – 252, a marriage was deemed void on the basis that consent was fraudulently obtained. The husband, a Turkish national, intentionally misled his Australian partner into marrying him so he could obtain permanent residency in Australia.

The latest on Chetan and Divya

Chetan faces 50 criminal charges, including 16 counts of giving false documentation to authorities and 18 counts of influencing a Commonwealth Official. Together, Chetan and Divya also face 16 counts each for arranging a marriage for a visa and to obtain permanent residency in contravention of the Migration Act.

What are the key points that you need to know?

  1. It is an offence to arrange a marriage between two people for the purposes of obtaining an Australian visa;
  2. It is an offence to create false statements to prove a genuine relationship; and,
  3. A marriage is void if consent is obtained through consent or duress.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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