Hanna v DIMIA

SALIENT FACTS 7 These can be set out in uncontroversial fashion from the respondent's chronology of events, extracted in abbreviated form below:

9.6.94 Hanna registered as a registered migration agent (RMA) with the Migration Agents Registration Authority, with registration number 9472591. 25.4.97 Hanna places first advertisement with Arabic fortnightly community newspaper El-Massry on bottom of page 5 of 25.4.97 issue. Same advertisement continues to run in every fortnightly issue. Periodic payments in cash to Mona Maks by Hanna. Recorded in accounting book. 9.5.97 Hanna places a second advertisement with El-Massry on bottom of page 1 of 9.5.97 issue. Both advertisements continue with each following weekly issue. 7.6.99 Hanna's RMA registration (No. 9472591) expires. 30.9.99 Hanna's two advertisements (on pages 1 and 5) appear in El-Massry newspaper issue dated 30.9.99, having run continuously since 25.4.97 and 9.5.97. 21.9.99 Hanna draws and pays personal cheque to Fikry Maks in the name, " El-Massry " for $1,000. 4.10.99 Commonwealth Bank dishonours cheque dated 21.9.99. 19.1.00 Hanna draws and pays personal cheque to Fikry Maks in the name, " El-Massry " for $1,125, and retrieves previous cheque dated 21.9.99. 1.2.00 Commonwealth Bank dishonours cheque dated 19.1.00. 20 and 21.5.02 Bankstown Local Court (Mr Shepherd LCM) Defended hearing commences. Two charges of advertising when not a registered migration agent: s284(1) Migration Act ; and representing oneself to be a migration agent when not registered: s283(1). Adjourned part-heard to 2.9.02. 2.9.02 Bankstown Local Court (Mr Shepherd LCM) Defended hearing continues. Offence proven on first charge of advertising whilst not a registered migration agent. Convicted and fined $2,500 with $56 court costs. 28 days to pay. Acquitted on second charge of representing when not a registered migration agent. 11.10.02 Parramatta District Court (Tupman DCJ) Listed as All Grounds Appeal. Appellant files Notice of Motion to call fresh evidence on appeal. 5 and 6.6.03 Parramatta District Court (Walmsley DCJ) All-Grounds Appeal. 11.6.03 Parramatta District Court (Walmsley DCJ) All-Grounds Appeal concluded. Appeal dismissed. Conviction and penalty imposed by Local Court upheld. Time to pay fine extended to 6 months. 4.7.03 Notice of Intention of Appeal filed in NSW Court of Criminal Appeal by defendant. 9.7.03 Time for filing summons to NSW Court of Criminal Appeal Registry expires. 10.7.03 NSW Court of Criminal Appeal Registrar writes to defendant advising that there is no further appeal to the NSWCCA following an appeal to the District Court. 19.12.03 NSW Court of Appeal (Registry) Appellant files a "Summons for Judicial Review" with the Registry of the NSW Court of Appeal. Listed for directions hearing before NSW Court of appeal Registrar on 9.2.04. 9.2.04 Court of Appeal (Registrar Schell) Listed for call-over before NSW Court of Appeal Registrar on 9.2.04. Registrar directs Crown respondent to file submissions and evidence by 5.3.04; for the applicant to file further evidence by 26.3.04, and for a further directions hearing before the Registrar on 5.4.04. 26.3.04 Court of Appeal (Registrar) Listed for directions hearing. 8 The relevant charges were brought against the applicant personally and were brought under ss283 and 284 of the Migration Act 1958, quoted below: " 283 False representation that a person is a registered agent (1) A person who is not a registered agent must not directly or indirectly represent that he or she is such an agent. (2) A person must not directly or indirectly represent that another person who is not a registered agent is such an agent. Penalty: Imprisonment for 2 years.

284 Restriction on self-advertising of the giving of immigration assistance (1) Subject to this section, a person who is not a registered agent must not advertise that he or she gives immigration assistance. Penalty: Imprisonment for 2 years. (2) This section does not prohibit a parliamentarian from advertising that he or she gives immigration assistance. (3) This section does not prohibit a lawyer from advertising that he or she gives immigration legal assistance. (4) This section does not prohibit an official from advertising that he or she gives immigration assistance in the course of acting as an official." 9 The applicant was convicted in the Local Court by Magistrate Shepherd on 2 September 2002 of the charge pursuant to s284 of the Act but was acquitted of the charge under s283 of the Act. 10 That decision was upheld on appeal to the District Court by Walmsley DCJ, with the result that the conviction under s284 was left undisturbed as also the acquittal under s283. 11 The applicant did not seek to appeal to the Supreme Court following his conviction by the Magistrate being a course open to him pursuant to Pt 5 of the Crimes (Local Courts Appeal and Review) Act 2001.

Applicant's Conviction 12 A brief elaboration of the essential circumstances concerning the applicant's conviction is set out below. 13 The applicant was a registered migration agent between 9 June 1994 and 9 June 1999. The applicant admits that his registration lapsed on 9 June 1999 (paragraph 10, affidavit 19 December 2003). 14 The prosecution of the applicant was on the basis that between 9 June 1999 and 19 January 2000, when the applicant was not a registered migration agent, he had advertised that he could give immigration assistance. Annexures B1 - D4, inclusive, (pp 2-9 affidavit of G C Kearns, 3 March 2004) show that the applicant advertised himself as a consultant in this field and that the advertisement carried his lapsed registration number. I quote below the first advertisement, as translated, dated 25 April 1997 and the second advertisement (as repeated) dated 30 September 1999: "Advertisement in the newspaper El Massry 25/4/1997 A.M.I. Migration Consultant Arabic Bureau for al Migration Matters Migration Registration No. 72591

The Arabic Bureau for all Migration matters Bankstown Is pleased To offer you its services in filing, processing and following up all Migration applications outside and inside Australia, For permanent residency, visits, work or studies. Appeals with Migration Review Tribunals and Federal Courts Extensive experience and honesty Special prices for Arabic Community members

For more information please call telephone number (02) 7902527

A.M.I. Migration Consultant Arabic Bureau for all Migration matters Migration Registration No. 72591

Consultant Fayez Hanna For more information please call telephone number (02) 97902527" 15 I should pause to note that "A.M.I.", to which the migration registration number was attributed, was described by Mr Hanna before this Court as a division of Mr Hanna's company which he said was called Middle East Group Pty Limited. Thus the advertisements did not purport to state Mr Hanna was a licensed migration agent. They did however state that he was a consultant, the context being clearly that of an "Arabic Bureau for all Migration matters". 16 The tribunals (Local Court and District court) found that they were advertisements that stated that the applicant was in a position to give immigration assistance. 17 Evidence was led of payments for advertising which commenced on or about 25 April 1997 and which continued after 9 June 1999. Subsequent to the lapse of his registration, the applicant forwarded two cheques to the proprietor of the newspaper. Both tribunals found that the cheques were forwarded to the newspaper proprietor for payment of advertising fees. The first cheque was made out for $1,000 and was dated 21 September 1999. It was not met on presentation. A subsequent cheque, dated 19 January 2000 in the sum of $1,125, was also not met on presentation. The applicant's claim that the monies were donated to the newspaper was rejected. That submission was repeated to us. 18 The proprietor of the newspaper, Mr Maks, gave evidence that in March or April 2000 the applicant requested him to stop the advertisements in the newspaper. The applicant's evidence was that he asked Mr Maks to stop publishing the advertisements earlier, from the time that his registration lapsed (7 June 1999). Both tribunals rejected his evidence on this point. He went on to say that the proprietor informed him that he would not stop publications until he received a fax or a written request from the applicant requesting or confirming that the advertisements were to stop. The applicant stated, however, that he did not give such a written direction. 19 Mrs Maks also gave evidence concerning the receipt of payments for advertisements. Her evidence was supported by a document in which she recorded the receipt of monies for advertisements for the plaintiff: Annexures G1-G2, pp 19-20, affidavit G C Kearns. 20 The trial judge concluded that that evidence established the offence charged against the applicant. His Honour considered matters raised by the applicant including an asserted absence of authority from him to publish the advertisements, but formed the view that those arguments could not be accepted. 21 As such, I agree with the respondent's submission that there was evidence before the District Court that enabled Walmsley DCJ to uphold the conviction. Further I agree that no proper basis had been put to this Court warranting overturning that conviction, based on the challenges to the facts as found even were there a competent appeal on those matters before this Court; compare Fox v Percy (2003) 197 ALR 201. 22 On the s283 charge, the Magistrate found (in effect) (T, 58.44 of 2 September 2002) that there was no direct evidence that the applicant "directly represented" himself as a migration agent to any particular person. The respondent submits that finding was extremely favourable to the applicant in light of an employee of Mr Hanna's company, Ms Onano's evidence. But whether that was so or not, it is not necessary for this Court to consider. Further, the Magistrate found, on all of the evidence, that he was unable to infer, beyond reasonable doubt, that the applicant had so acted. 23 So far as the advertisement is concerned, the Magistrate expressed the view that it may have been designed to attract migration business to the company, such work to be carried out by others within the company and thus not necessarily by Mr Hanna (T, 59). 24 Mr Hanna relied on a further ground that he had been self-represented. But he conceded that he had been represented by counsel for most of the Local Court hearing. That had included cross-examination of the respondent's witnesses. 25 When asked by this Court whether he had sought an adjournment when first he ceased to be legally represented on the concluding day before the Magistrate, 2 September 2002, the applicant could not point to any such application. Indeed the transcript for that morning (T, 2.35) indicates that he accepted that he would be representing himself. 26 On appeal it appears he was allowed to tender further evidence. Walmsley DCJ considered the points raised by the applicant in support of his original defence. No actual specific error was established by the applicant on Walmsley DCJ's findings on these points, as distinct from the applicant's stated position that he was an honest person who should have been believed, as against the newspaper editor. Likewise no actual specific error was established on the part of either the learned Magistrate or learned District Court Judge.

Disposition 27 The starting point is the competency of the application. Much of what was put by the applicant pre-supposed that this Court was dealing with the matter as if on a re-hearing. However, the application as framed was to this Court as a Court of Appeal and not Court of Criminal Appeal and the relief sought pre-supposed an application under s69 of the Supreme Court Act. Section 69 is in the following terms: " s69 Proceedings in lieu of writs 69 (1) Where formerly: (a) the Court had jurisdiction to grant any relief or remedy or do any other thing by way of writ, whether of prohibition, mandamus, certiorari or of any other description, or (b) in any proceedings in the Court for any relief or remedy any writ might have issued out of the Court for the purpose of the commencement or conduct of the proceedings, or otherwise in relation to the proceedings, whether the writ might have issued pursuant to any rule or order of the Court or of course, then, after the commencement of this Act: (c) the Court shall continue to have jurisdiction to grant that relief or remedy or to do that thing; but (d) shall not issue any such writ, and (e) shall grant that relief or remedy or do that thing by way of judgment or order under this Act and the rules, and (f) proceedings for that relief or remedy or for the doing of that thing shall be in accordance with this Act and the rules. (2) Subject to the rules, this section does not apply to: (a) the writ of habeas corpus ad subjiciendum, (b) any writ of execution for the enforcement of a judgment or order of the Court, or (c) any writ in aid of any such writ of execution. (3) It is declared that the jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings. (4) For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination. (5) Subsections (3) and (4) do not affect the operation of any legislative provision to the extent to which the provision is, according to common law principles and disregarding those subsections, effective to prevent the Court from exercising its powers to quash or otherwise review a decision." 28 It may be accepted that s69(3) extends the Court's jurisdiction to all cases involving error of law on the face of the record; see, for example, Australian & Investment Commission v Farley (2001) 51 NSWLR 494. There in relation to proceedings heard summarily by a Magistrate in the Local Court, ASIC claimed an order in the nature of certiorari quashing the orders of that Magistrate and a further order that the matter be remitted to be determined according to law. At 498 Sperling J stated "[9] The phrase "error of law" is not limited to jurisdictional error. Accordingly, since 1996 but subject to other legislation, this Court has had power to grant relief in the nature of certiorari for any error of law that appears on the face of the record of the proceedings (which includes the reasons for determination of the court or tribunal concerned). That includes non-jurisdictional error: ….." 29 Thus for the applicant to succeed, either there had to be jurisdictional error in the terms described by the High Court in Craig v South Australia (1995) 184 CLR 163 at 177-8, or error of law on the face of the record. The record in this case is necessarily that of the District Court as the Magistrate's determination is subsumed in that appeal. In Craig (supra) jurisdictional error was described in these terms in relation to an inferior court: "An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision(including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction. Jurisdictional error is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers.

[A]n inferior court can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do. ... Similarly, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case. Again, an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. In the last-mentioned category of case, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern." [Emphasis added] 30 Mr Hanna was unable to point either to an error of law on the face of the record or a jurisdictional error beyond submitting that: (a) conviction under s284 of the Act could not be reconciled with acquittal under s283, and (b) the District Court did not have power to consider the relevant appeal (though if correct this would have the consequence that the appeal thereby rendered incompetent to the District Court would have simply left the Magistrate's determination to stand). 31 Taking (b) first, it is clear that the appeal to the District Court was competent pursuant to Pt 5A of the Justices Act in relation to the conviction under s284 of the Act. Thus s120 of the Justices Act deals with, as here, appeals against convictions, sentences or orders by a Magistrate in summary proceedings such as the present. 32 Turning to (a) above, the applicant's argument essentially turns upon whether the conviction under s284 and the acquittal under s283 are to be treated as analogous to inconsistent jury verdicts such as the High Court considered in MacKenzie (1996) 90 A Crim R 468. Thus, the test being one of logic and reasonableness, could it be said by analogy that when the Magistrate acquitted Mr Hanna from the charge under s283 this meant that the conviction under s284 could not stand, being "an affront to logic and common sense which is unacceptable" (MacKenzie at 483 per Gaudron, Gummow and Kirby JJ). 33 The supposed inconsistency disappears once the differences between ss283 and 284 are appreciated. Section 284 is concerned with a prohibition on advertising that the person concerned "gives immigration assistance". The advertisements earlier quoted clearly demonstrate that Mr Hanna is available as a consultant for such a purpose. 34 However, s283 focuses not upon public advertisements but upon a person who "is not a registered agent" but who "directly or indirectly represents" that he or she is such an agent. The Magistrate, as is clear from the transcript, considered that matter in the context of evidence given by Ms Onano, an employee of Mr Hanna's company. That evidence concerned whether Mr Hanna personally had made such representations to particular persons. It was open to the Magistrate to conclude as he did in favour of the applicant that he had not directly or indirectly so represented. 35 Let it be assumed that an advertisement within s284 made to all the world could also constitute a representation to similar effect to individuals, in terms of s283, notwithstanding its juxtaposition alongside s284 dealing with advertisements. Such a proposition is doubtful, but it is not necessary to determine its correctness in view of what follows. Critically these advertisements never represented that Mr Hanna had such a registration as a migration agent. The advertisements referred rather to having such registration in relation to "A.M.I." which, as I have earlier explained, was said to be a division of Mr Hanna's company. That leaves open in logic either that other persons in the company but not Mr Hanna may have made such representations or that no-one had been shown to have done so. Those possibilities being open, acquittal under s283 is equally open. Such an acquittal does not mean that conviction under s284 is precluded as a matter of logic and common sense. 36 The respondent in its written submissions refers to the possibility that the applicant might have sought to appeal to the Supreme Court following his conviction by the Magistrate pursuant to Pt 5 of the Crimes (Local Courts Appeal and Review) Act 2001. Clearly he did not, choosing instead to appeal to the District Court. Likewise, there is provision under s5B of the Criminal Appeal Act to permit a party to an appeal to the District Court, such as the applicant, to submit a question of law to the Court of Criminal Appeal. Section 5B(2) provides however that the question of law must be submitted not later than twenty-eight days after the end of the appeal proceedings, or within such longer period as the Court of Criminal Appeal may allow. 37 This Court was not constituted as a Court of Criminal Appeal nor was the applicant's summons so framed. But quite apart from that, the only conceivable basis for a question of law would depend upon there being a question that conviction under s284 of the Act could not co-exist with an acquittal under s283. That proposition, as I have explained in the context of an application pursuant to s69 of the Supreme Court Act, is demonstrably wrong.

OVERALL CONCLUSION AND ORDERS 38 None of the matters submitted by the applicant identify either jurisdictional error on the part of the District Court or error of law on the face of its record. The applicant's attack on factual findings by either Magistrate Shepherd or Walmsley DCJ in the District Court fall into neither category and were never the subject of a competent appeal to this Court. 39 I consider that the applicant's summons should be dismissed with costs and I would so order. 40 BRYSON JA: In my opinion the appeal or application for judicial review is incompetent for reasons which appear from the judgment of Santow JA, with which I agree. The Summons should be dismissed with costs. 41 McCLELLAN AJA: I agree with Santow JA. *********

Last Modified: 08/17/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.