The charges concerning Maged Zaki.
4 Mr Hanna was charged with an alleged breach of s280(1) of the Migration Act 1958, the charge being expressed as follows:
"That, on or about, 20 August 1999 at Bankstown in the state of New South Wales, (Fayez Philippe Hanna) who was not a registered Migration Agent, did give immigration assistance to Maged Zaki."
5 He was also charged with a breach of s281(1) of the Act, the charge being expressed in these terms:
"That, between 20 August 1999 and 31 December 1999 at Bankstown in the state of New South Wales, (Fayez Philippe Hanna) who was not a registration migration agent, did receive fees, namely $8000, for giving immigration assistance to Maged Zaki."
6 Mr Hanna is an accomplished linguist. He is an accredited interpreter, fluent in French, Arabic and English. In 1994, he registered as a Migration Agent (number 94 72591). He operated a business, Middle East Group Pty Limited trading as AMI Migration Consultants. He had an office in Bankstown.
7 Mr Hanna, in the course of his work, travelled extensively. He was often absent from Australia. Migration agents are required to renew their registration each year. Renewal is dependent upon, amongst other things, the completion of additional training each year, designed to maintain the skills necessary for their work. Mr Hanna determined in 1999 that he did not have the time to undertake the required training. He therefore elected to allow his registration as a migration agent to lapse on 9 June 1999.
8 Nonetheless, Mr Hanna continued to operate his business, AMI Migration Consultants. He employed within that business, a registered migration agent, Ms Tatiana Onano (registered number 99 00625). Ms Onano was employed during and after the dates identified in the five charges.
9 Mr Maged Zaki came to Australia from Egypt. He is a Town Planner. Once in Australia he established a number of businesses, including a supermarket. Mr Zaki had a sister, Ms Mervat Zaki, who still lived in Egypt. She was married to Mr Sami Saman. They had three children. She and her husband wished to emigrate to Australia.
10 In August 1999, Mr Saman, his wife and children, came to Australia on a short holiday. On 20 August 1999, Mr Maged Zaki and Mr Saman went to the office of AMI Migration Consultants in Bankstown. They saw Mr Hanna. Mr Zaki addressed the following question to Mr Hanna: (T50 (27.3.03))
"A. ... I asked Mr Hanna if we can get my brother-in-law and my sister as a permanent resident to Australia, a migrant to Australia, as - as the last person in the family. ..."
11 Mr Hanna responded as follows: (T50)
"A. Mr Hanna said it's - it's very difficult. He said, 'That will be very difficult to get your sister as a normal migrant because it takes a long time, but I have a different visa which is a business visa. I can get your brother-in-law and your sister in a business visa for - they going to stay here for four years. And after four years they can apply for permanent residence and' ..."
12 Mr Hanna added that a business visa was the easiest and fastest way to gain entry into Australia and thereby gain residency. In the course of their conversation, Mr Hanna referred to the fees that had to be paid. He said this: (T51)
"A ... 'This procedure will cost us $10,000 and you will pay $3,000 in advance, and when we went - when I get medical examination letter, you will have to pay the $7,000.' ..."
13 Mr Hanna explained that the application would be lodged in Cairo. It would be studied by the Department. A letter would be sent requesting a medical examination in Egypt. At that point "the rest of the money, $7,000, would become payable" (T52). During the course of the conference, Mr Hanna provided a list of documents that "we need" (T51). They included birth certificates, copies of passports, business papers and evidence that Mr Saman had 250 Egyptian pounds available in the bank. Mr Zaki said that he regarded the fees payable as "a lot of money". He therefore said that they would think about it.
14 Mr Saman then returned to Egypt. His wife, Mr Zaki's sister, remained in Australia for a short time. Meanwhile, Mr Saman and his wife decided "to go ahead with Mr Hanna ... to pay him the money" (T52). Arrangements were made for a second meeting. Mr Zaki attended with his sister at Mr Hanna's office on 31 August 1999. Mr Hanna produced and completed a "Cost Agreement and Services Contract" (Exhibit 21). The agreement was a printed form. It included, at the top of the first page, the following words:
"Migration Agent Registration No: 72591"
15 Mr Hanna's registration number, before his registration lapsed, was 72591.
16 The parties to the agreement were identified as AMI Migration Consultants (which was typed on the form) and Maged Zaki ("the client") which was handwritten in Mr Hanna's handwriting. The agreement began with these words:
"This agreement sets out the terms of representation and the costs and charges that are to be paid to the Consultant or statutory body by the Client with respect to the application(s) for temporary/Australia for:
Mr & Mrs Sami Kamel Habib and Mervat Zaki & Family The Applicant(s)
The Client(s) has instructed the Consultant to act on his/her/their behalf and said instruction constituting a legal fee, an administractive fee, the sum of which equals the total retainer which is acknowledged and agreed upon by both the Consultant and the Client both of whom agree to be bound by the content of this agreement."
17 The words in italics were in the handwriting of Mr Hanna.
18 The agreement thereafter identified lodgement fees and the services to be provided for a "Total Retainer" of $10,000. Under the heading "Money Back Guarantee" the agreement made the following provision:
"The Consultant undertakes to refund $ nil in the event that the application which is the subject of this agreement is not approved ..."
19 Again, the words "$nil" were in the handwriting of Mr Hanna.
20 Mr Maged Zaki signed the agreement as the client and initialled each page. His signature was witnessed by Mr Hanna. Mr Hanna, who appeared for himself in the Lower Court and on the Appeal, did not dispute that his handwriting appeared on the document and that he had signed the document. Mr Zaki, in accordance with the terms of the agreement, wrote a cheque for $3,000, which he then gave to Mr Hanna. Mr Hanna thereafter wrote a receipt which he gave to Mr Zaki (Exhibit 22).
21 In mid October 1999, there was a third meeting. By that time, Mr Zaki's sister had returned to Egypt. Mr Maged Zaki had heard that Mr Hanna did not have a licence to act as a migration agent. He went to Mr Hanna's office with his wife and a friend to confront him with that suggestion. Mr Hanna, according to Mr Zaki's evidence, became very upset and frustrated (T57). He said he had a licence. However, he should have paid money to renew the licence. The money had now been paid. He expected to receive his licence within a week (T58).
22 Mr Hanna assured Mr Zaki that the application in respect of his brother in law and sister had already been lodged. Mr Zaki enquired how, if he were not licensed, he could have lodged the application. According to Mr Zaki, Mr Hanna responded with these words: (T58)
"'I am not stupid, I am putting this application under someone else's signature, he signed for me,' and - and I asked him, 'Whose that someone else?' He said, 'Someone - that Mrs Tatianna Onano, she - she's away and she signed the paper for me.' And - and I ask him if he can give us her licence number, and Mr Hanna gave me her card and the card has the licence number."
23 Mr Zaki had not, to that point, met Ms Tatianna Onano, nor spoken to her. After the meeting he made enquiries with the Department concerning the registration number provided by Mr Hanna. He was told that she was a registered migration agent. He then felt reassured.
24 In December 1999, Mr Hanna telephoned Mr Zaki. He said that Mr Saman had now been notified by the Department of the medical examination. He therefore required "the rest of the money" (T59). Mr Zaki then sent a further cheque for $3,000. Mr Hanna immediately telephoned. He said he did not accept cheques. He made arrangements with Mr Zaki to send someone to the supermarket to pick up $3,000 in cash. Mr Hanna issued a receipt dated 8 December 1999 to Mr Zaki for that sum (Exhibit 23).
25 The payment of $3,000 fell short of the amount which Mr Zaki had agreed to pay once the medical examination had been arranged. Mr Hanna again rang Mr Zaki in mid December 1999 asking for the balance. Mr Zaki paid a further $2,000 and was given a receipt (Exhibit 24). He believed his brother in law paid the balance of $2,000 to Mr Hanna in Egypt (making a total of $10,000).
26 In January 2000, Mr Zaki received news that his brother in law's application had been rejected by the Department. He immediately rang Mr Hanna. He spoke to Ms Tatianna Onano. He had never previously spoken to her. She told him that Mr Hanna was in Egypt. She said that she would handle the matter until his return (T64).
27 Mr Hanna then returned to Australia. After his return, Mr Zaki spoke to him. Mr Hanna explained that immigration officials had apparently spoken directly with Mr Zaki's brother in law in Egypt, which was contrary to the regulations. Mr Hanna rang the Minister's office and complained (T65). On 3 May 2000, he sent an urgent complaint to the Minister, setting out at some length the case for a visa, identifying the mistakes of the Department (Exhibit 25).
28 The Minister's office, however, would not alter the decision in respect of Mr Saman and his family. In June 2000, Mr Zaki and his two brothers went to see Mr Hanna. They demanded the return of the $10,000 that had been paid. Mr Hanna refused. He asked them to leave his office. He threatened to call the police if they failed to do so. Mr Zaki and his brothers then left. However, they later complained to the Department.
29 Mrs Wafaa Zaki, the wife of Maged Zaki, also gave evidence. She accompanied her husband to what has been described as "the third meeting" (supra para 21), that is, the confrontation with Mr Hanna after Mr Zaki had heard that he did not have a migration licence. Her account of that meeting, as the learned Magistrate remarked, was generally similar to that of her husband. She corroborated other aspects of his evidence.
30 His Honour, Mr Reiss, accepted the evidence of Mr and Mrs Zaki. He said this: (p11)
"Whilst there was some language difficulties concerning the evidence of Mrs Zaki both Mr and Mrs Zaki appeared to be honest and forthright in the manner in which they gave of their evidence. They were both clear and consistent and neither were shaken in cross examination. Certainly they were unhappy with the cost and quality of Mr Hanna's assistance and were very angry with him. In this sense they were not independent or dispassionate witnesses. Nevertheless, there was nothing in their manner of giving evidence or in the content of the evidence before the court to conclude that they were fabricating or exaggerating their evidence.
The evidence of Mr Zaki and Mrs Zaki was clear and importantly was supported by a large number of documents that have Mr Hanna's handwriting and signature on it. It is clear from the evidence that Mr Hanna provided advice to Mr Zaki and his family concerning immigration and visa matters and that he physically accepted fees for that work. The evidence does not support that he was acting in the capacity as an interpreter for one of his companies or for Ms Onano."
31 Ms Tatianna Onano gave evidence, although her evidence in chief related mainly to the complainant, Mr Dimitrios. A statement of Ms Onano was admitted as an exhibit (Exhibit 28). It contained the following passage:
"8. It wasn't until September or October 1999 that I began to suspect that Mr Hanna may not be a registered migration agent. At about this time he began insisting that I give DIMA my agent's registration number, and not his ..."
32 She confronted Mr Hanna. The conversation, according to her statement, was in these terms:
"I said: Do you have a licence to work as a migration agent or not? Seems to me you don't have any licence to work as an agent.
He said: It's not that I've done anything wrong. I just didn't renew it. I want to finish with migration and go on with other business.
I said: If you're not registered you can't give migration advice to anybody who comes into the office and pays money.
He said: It's not your business how I run my business.
I said: Okay, run it the way you'd like to run it."
33 Mr Hanna cross examined Ms Onano at some length. The learned Magistrate made the following observation on one aspect of that cross examination: (p11)
"... Mr Hanna did not take the opportunity in cross examination of Ms Onano to put to her the assertions he later made in the cross examination of Mr Zaki. In particular he did not put to Ms Onano that she was in fact doing the work for Mr Zaki's family and that Mr Hanna was only acting as a conduit or translator for her or for his companies."
34 Mr Hanna did not give evidence. In submissions, he did not dispute that he had physically received money from Mr Zaki. He said he had done so on behalf of the Middle East Group Pty Limited trading as AMI Migration Consultants. His position, as his Honour remarked, can be described in these words: (p12)
"... Presumably this would on Mr Hanna's position have been done so that Ms Onano could give advice on behalf of that company."
35 On the basis of these facts, his Honour determined that Mr Hanna was not guilty of the offences charged, which he then dismissed. The charges were dismissed because of the view his Honour formed concerning the legislation upon which the charges were based.