BDS Recruit Pty Limited v Parris & Shah Pty Limited

[2008] NSWSC 614

CITATION:	BDS Recruit Pty Limited v Parris & Shah Pty Limited [2008] NSWSC 614 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	12 June 2008
JUDGMENT DATE :	19 June 2008
JUDGMENT OF:	Smart AJ at 1
DECISION:	See para 44
CATCHWORDS:	Appeal from Local Court - Construction and Application of Migration Act 1958, Part 3 ss 276, 280 and 281 - Magistrate erred by failing to take into account relevant evidence - UCPR 50.16 provides for re-hearing - Company not able to be registered as migration agent but providing immigration assistance
LEGISLATION CITED:	Migration Act 1958
CATEGORY:	Principal judgment
CASES CITED:	House v The King (1936) 55 CLR 499 at 505
PARTIES:	BDS Recruit Pty Limited v Parris & Shah Pty Limited
FILE NUMBER(S):	SC 10166/08
COUNSEL:	Mark Walsh (for BDS) N/A for Parris & Shah
SOLICITORS:	Porter Davies (for BDS) N/A for Parris & Shah
LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	9918/06
LOWER COURT JUDICIAL OFFICER :	Magistrate O'Shane
LOWER COURT DATE OF DECISION:	19/12/07

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SMART AJ

Thursday, 19 June 2008

BDS RECRUIT PTY LIMITED (“BDS”)

v

PARRIS & SHAH PTY LIMITED (“P & S”)

JUDGMENT

1 BDS seeks to set aside the Local Court verdict and judgment for P & S for $33,593.17 plus interest from 11 October 2006 and the order that BDS pay the costs of P & S of the Local Court proceedings. BDS claims that the magistrate made sundry errors of law. They include taking into account material that was not in evidence before her, misconstruing and misapplying the Migration Act 1958, not taking into account certain material evidence misunderstanding and misapplying certain contractual principles and wrongly determining the applicable measure of damages.

2 P & S did not appear although served with the summons and notified of the hearing date of these proceedings. The evidence suggested that P & S had gone out of business. The solicitor who appeared for P & S at the Local Court was notified of these proceedings but had no instructions.

3 It will not be necessary to deal with the points relating to contractual principles and their application or the measure of damages. Both points have considerable substance.

4 In the pleadings P & S was described as engaged in the business of providing migration related services and BDS as engaged in the business of personnel and recruitment from offshore locations.

Taking Extraneous Matters Into Consideration

5 At lines 45-50 on p6 to lines 1-17 on p7 of the Local Court transcript of 19 December 2007 the magistrate refers in her judgment to the contents of the affidavit of Mr John Stewart who became Chief Executive Officer of BDS in July 2006 after Mr Roberts’ resignation in June 2006.

6 At p4 of 6 November 2007 transcript counsel for BDS said that he did not read that affidavit nor tender it. Apparently it had been included in a bundle of documents handed to the magistrate. Counsel for the defendant asked the magistrate to remove Mr Stewart’s affidavit from the bundle “lest there be confusion that it goes into evidence”. The magistrate replied “All right”.

7 The magistrate made little to no use of Mr Stewart’s affidavit. She rejected the legal interpretation he placed on various actions taken by the parties and noted that his purported variation of the contract was rejected by the plaintiff. It was beyond argument that P & S did not accept what Mr Stewart proposed.

8 While taking into account extraneous material often vitiates the exercise of a determination the principle is that if a judge allows extraneous or irrelevant matters to guide or affect him or her then the determination should be reviewed and the appellate court may exercise its own discretion in substitution for that of the primary judge if it has the materials for doing so: House v The King (1936) 55 CLR 499 at 505.

9 I do not think that the magistrate allowed extraneous or irrelevant matters to guide or affect her. Her reasoning processes did not depend on the Stewart material being taken into consideration. She referred to it to show that she rejected his legal interpretation and that P & S did not accept what he proposed.

Migration Act 1958

10 Section 280(1) provides that subject to s 280 a person who is not a registered migration agent must not give immigration assistance. None of the exceptions in s 280(2) – (6) applies. Section 280(1A) provides that an offence against subs (1) is an offence of strict liability. The penalty for a breach of s 280(1) is 60 penalty units.

11 Section 280(5C) provides that this section does not prevent a person sponsoring a visa applicant for the purposes of the regulation from giving immigration assistance to the applicant. The magistrate relied on this provision. She held that BDS was the sponsor and that it was seeking to give immigration assistance to the visa applicant and that it then sought to obtain relevant advice as to giving such immigration assistance from P & S. This subsection does not extend to a person who is not a registered migration agent and who, on the instructions of a potential employer, and sponsor assists with the giving of advice and the preparation and lodgement of sponsorship, nomination and visa applications. Mr Kazacos, a registered migration agent and the sole officeholder of P & S described the nature of the work that the plaintiff could perform on behalf of BDS as “including preparation of sponsorship and nomination applications and preparation of applications in respect of candidates for skilled migration that were subject of recruitment by [BDS]”. P & S proposed in its Statement of Services to charge substantial fees for the services rendered.

12 Section 281(1) provides:

“Subject to subsection (3), a person who is not a registered migration agent must not ask for or receive any fee or other reward for giving immigration assistance.”

Subsection (3) does not apply to the circumstances of this case The penalty is imprisonment for 10 years.

13 Section 276(1) and (2) relevantly provide that a person gives immigration assistance if the person uses, or purports to use, knowledge, or experience in, migration procedure -

(1) to assist a visa applicant by:
(a) preparing or helping to prepare the visa application; or

(b) advising the visa applicant, and

(2) to assist another person by:

(a) preparing or helping to prepare a document indicating that the other person nominates or sponsors a visa applicant for the purposes of the regulations; or

(b) advising the other person about nominating or sponsoring a visa applicant for the purposes of the regulations.

The exempting provision in s 276(3) does not apply.

14 Section 286 provides that individuals may be registered as migration agents in accordance with Part 3 of the Act. Section 287(1) provides that the Migration Agents Registration Authority must keep a register listing individuals who are registered as migration agents.

15 Section 313(1) provides:

“A registered migration agent is not entitled to be paid a fee or other reward for giving immigration assistance to another person (the assisted person) unless the agent gives the assisted person a statement of services.”

Section 313(2) provides that a statement of service must set out

“(a) particulars of each service performed; and
(b) the charge made in respect of each such service.”

16 In my opinion the materials of P & S reveal and establish that P & S was providing and provided immigration assistance within s 276(1)(a) and (b) and s 276(2)(a) and (b) of the Migration Act in relation to the second Korean recruitment.

17 Mr Kazacos described a three stage process:

First an employer must apply to sponsor the proposed migrant

Secondly, the employer must apply to nominate and identify the nature of the positions proposed to be filled by the potential migrant. (The nomination application can usually be made along with the sponsorship application).

Thirdly, the potential migrant must obtain a visa. In most cases the nature of the visa is a Temporary Business (Long Stay) Standard Business Sponsorship Visa (Sub class 457).

18 P & S alleged that it performed services on behalf of BDS in relation to sponsorship applications, nomination applications and visa applications during the period May 2003 – September 2006. That was not disputed.

19 P & S alleged that in around November 2005, it received instructions from the defendant to perform migration services in respect of a number (5) of special skilled, Korean tradespersons who were candidates for migration to and employment in Australia on behalf of BDS(“First Korean Recruitment”). The specific nature of the work was the preparation of applications to the Department of Immigration and Citizenship in order to obtain Subclass 457 Visas for each of the candidates of the First Korean Recruitment.

20 Of immediate relevance, P & S alleged that around 5 April 2006 it received instructions to act on behalf of BDS in relation to a further 30 Korean recruits for skilled migration (“the Second Korean Recruitment”). On 6 April 2006 Mr Kazacos on the letterhead of Australian Migration Services sent an email to Mr Roberts to which he attached “the Tax Invoice for the second instalment Korean tradespeople to be recruited”. The attached tax Invoice was on the letterhead of “Parris & Shah”, Migration Specialists and dated 5 April 2006.

21 It contained these statements:

“Professional Services to be Rendered

Migration Consulting – Subclass 457 work visa x 26
(4 candidates paid November 2005)”

and

“I have read and agree to the terms and conditions of this Statement of Services.

I have received a copy of the ‘Information on the Regulation of the Migration Advice Profession’ booklet from Parris & Shah Migration Specialists.”

and

“Payments in relation to this Statement of Services are not refundable. The Statement of Services and payment does not create legal relations between Parris & Shah Migration Specialists and any party in relation to this Statement of Services or services rendered. Parris & Shah Migration Specialists do not accept any liability for losses incurred in the event of decision of an application or any losses derived therefrom.”

22 The Statement of Services was signed:

“Parris Kazacos

Director

Reg Migration Agent No 000170.”

23 The professional fees claimed do not correspond with those foreshadowed in the email of Parris & Shah of 28 May 2003 to BDS. They appear to be considerably less.

24 P & S is a corporation and therefore is not permitted to be registered as a migrant agent (ss 286 & 287 of Migration Act). Accordingly P & S was not permitted to give immigration assistance (s 280). Under s 281(1) it was prohibited from asking for or receiving any fee or other reward for giving immigration assistance. As previously stated P & S was giving immigration assistance.

25 On 31 January 2007 the Administrative Appeals Tribunal upon review of the decision of the Migration Agents Registration Authority decided that:

“Parris Kazacos is suspended from practice as a Migration Agent as and from the close of business on the 18th day of September 2006 up to and including the 31st day of January 2007 at least.

And … the lifting of any suspension of the Agent’s right to practice is dependent upon him complying with the following conditions, namely:

1. The successful completion of private tuition in Professional Ethics for a minimum of four hours conducted by an individual or individuals approved by the Migration Agents’ Registration Authority who is either an immigration law specialist or a Migration Agent with a minimum seven years experience; and

2. The Agent provides to the Migration Agents’ Registration Authority a statutory declaration in Commonwealth form stating that he has not made immigration representations for a fee or given immigration assistance as defined in the Migration Act 1958 while suspended.”

26 Some but perhaps not all of the work which P & S had undertaken was completed prior to the suspension of Mr Kazacos. As at the date of the institution of the proceedings, whether it be 3 or 11 October 2006 Mr Kazacos’ registration was suspended. In the early correspondence the letterheads referred to Australian Migration Specialists and Parris and Shah Migration Specialists. These were firms and Mr Kazacos was then registered as a migration agent. It is true that Mr Kazacos signed the Statement of Services as Director but that was on the letterhead of Parris & Shah Migration Specialists.

27 I raised with counsel whether, assuming the magistrate had made errors of law, the proceedings should be remitted to her to consider adding Mr Kazacos as a plaintiff in respect of the work done up to 18 September 2006.

28 The proceedings were commenced in the name of the company and Mr Kazacos agreed that P & S as a company could not be registered as a migration agent. It was his understanding that the company did not have to comply with the Code of Conduct. Mr Kazacos agreed that the company (P & S) was making a claim for money for the provision of migration services. Mr Kazacos said that Australian Migration Specialists and Parris and Shah were business names owned by the company P & S which was registered about 2000.

29 At T33 of 4/7/07Mr Kazacos stated that the statement of services was issued by the company, P & S. Mr Kazacos gave this evidence:

“Q. And that’s for immigration assistance and migration services
A. Services which includes the provision of advice and assistance by a … registered migration agent, which is under the Act, okay.”

30 Mr Kazacos said that he sent a tax invoice to Mr Roberts to meet his requirements. Mr Kazacos gave this evidence:

“Q. But in referring to a tax invoice that was shorthand for you for Statement of Services that the Migration Act requires you as a registered agent to send.
A. No, it’s – because the company is issuing the statement of services and therefore, you know, it doesn’t need to issue what’s called a statement of services, but the tax invoice is purely for – let’s say Kym Roberts, a right to make the payment, that’s basically it.”

31 Mr Kazacos acknowledged that a company cannot be registered as a migration agent but added that a company can offer services – “just kind of give advice and assistance that it can charge on behalf of – offer to give advice and assistance as long as the other person is a migration agent”. He added “that’s how all the companies are operating.”

32 Mr Kazacos said that this was not a stratagem to avoid complying with the Act, He said at T41, “we do all the things that are necessary anyway, but we don’t have to as a company.”

33 By email of 24 May 2006 Ms K S Park advised that the new number of candidates would be 28 not 32. She requested a revised invoice. By email of 25 May 2006 Australian Migration Specialists enclosed a Statement of Services on the letterhead of Parris & Shah, listing a professional fee and GST totalling $31,680 and Immigration Charges of $5,640 amounting in all to $37,500.

34 It contained these entries, amongst others:

Professional Services to be Rendered
Migration Consulting – Subclass 457 work visa x 28.

35 On 4 July 2006 BDS forwarded to Australian Migration Services letters of offer of employment to 5 of the candidates of the Second Korean Recruitment. BDS requested advice of the estimated time for approval of visas.

36 There were a number of emails from Mr Kazacos of Australian Migration Specialists seeking payment of their tax invoice in respect of the Second Korean Recruitment so they could proceed. In his email of 14 July Mr Kazacos on the letterhead of Australian Migration Specialists again sought prompt payment of “our professional fee” and stated “we have now commenced work upon the matter”. Checklists were enclosed setting out the information required for the five Korean candidates “in order for the processing of their work visa.”

37 At T10, ll 42-44 of the transcript of her judgment of 19 December 2007 the magistrate said, in substance that BDS bore the onus of satisfying the Court on the balance of probabilities that P& S came within the purview of the proscriptions or prohibitions set out in the Migration Act. She continued:

“It simply did not do so; there was absolutely not one word of evidence that was provided to the court. What became clear to the court, in fact, is that [BDS] saw these provisions and started to grasp at straws without any regard to what were the relative relationships between these three different groups of people, three different parties.”

38 The magistrate erred in stating that there was not one word of evidence that P & S came within the purview of the proscription or prohibitions set out in the Migration Act. Some of the relevant evidence is to be found in the lengthy affidavit of Mr Kazacos and the exhibits to his affidavit.

39 BDS relied on the following:

(a) Paragraphs 4, 6, 7, 11, 15 and 20 of the Statement of K Roberts (Ex 1)

(b) Statement of Services (Ex 2)

(c) Debiting in the Statement of Services “Department of Immigration Application Charge, Professional Services to be Rendered – Migration Consulting – Sub class 457 work visa x 27 and the remainder of the content of that Statement.

(d) The affidavit or statement of Parris Kazacos (Ex 4):

(i) paragraphs 2, 3, PK1 pp. 38-40

(ii) paragraph 6

(iii) paragraph 8

(iv) paragraph 14 and Statement of Services PK4, p48

(v) paragraph 18 and PK 7

(vi) paragraphs 20 and PK9

(vii) paragraphs 23 and 26, PK12 and PK15

(viii) paragraphs 28 and 32 and PK20

(e) Oral evidence of K Roberts on 3 July 2007

T 19 ll 32-47 (as to email of 28 May 2003)

T 20 ll 7 - 11

T 26 ll 6 - 21

T 47 ll 5 - 43

(f) Oral evidence of Mr Kazacos on 4 July 2007

T 4 ll 34-45

T 11 ll 48-55

T 30 ll 2 - 7

T40 ll 43 - 48

T76 ll 33 - 40

Some of this material has been quoted earlier.

40 In House v The King, supra at 505 the joint judgment of Dixon, Evatt and McTiernan JJ stated that if the judge mistakes the facts or if he does not take into account some material consideration then his determination should be reviewed and the appellate court may exercise its own discretion. There was abundant evidence that the migration services provided by P & S amounts to immigration assistance within s 276 of the Migration Act. The correct approach involves asking whether what was proposed and done amounted to immigration assistance within s 276. That question must be answered in the affirmative.

41 It is important to bear in mind the purpose of the provisions of the Migration Act as explained by Dawson J in Cunliffe v Commonwealth of Australia (1993) 182 CLR 272 at 258 when he referred to the Minister’s speech introducing the legislation. Widespread abuses led to the comprehensive provisions regulating the conduct of migration affairs, migration assistance and the charging of fees. See also the judgment in R v Wanna (1997) 42 NSWLR 1 per Gleeson CJ which applied the judgment of Dawson J as to the purpose of the Migration Act, 1958.

42 UCPR 50.16(1) provides:

“If the decision under appeal has been given after a hearing, the appeal is to be

by way of rehearing.”

43 In my opinion the magistrate has erred in her construction and application of the Migration Actand in her assertion that there was no evidence that P & S came within the proscriptions or prohibitions set out in the Migration Act.

44 P & S cannot succeed in its claim. I make the following orders:

1. That the appeal of BDS Recruit Pty Limited be allowed

2. That the verdict and judgment of the magistrate in favour of Parris & Shah Pty Ltd and the order that BDS Recruit Pty Limited pay the costs of Parris & Shah Pty Ltd be set aside.

3. In lieu thereof order that there be a verdict in favour of BDS Recruit Pty Limited with judgment accordingly and that P & S pay the costs of BDS Recruit Pty Limited of the Local Court proceedings.

4. Order that P & S pay the costs of BDS Recruit Pty Limited of the proceedings in this Court.

5. Decline to order indemnity costs,

6. Remit pursuant to s 76 of the Local Courts Act the question of the enforcement of the unertaking of Mr Parris Kazacos to personally pay any adverse costs order in the Local Court proceedings

**********

30/06/2008 - Orders 5 and 6 made following submissions by counsel. - Paragraph(s) 44