Director of Public Prosecutions (Cth) v Hanna

[2005] NSWSC 761

CITATION:	DPP (Cth) v HANNA & ANOR [2005] NSWSC 761
HEARING DATE(S):	6/07/05
JUDGMENT DATE :	29 July 2005
JURISDICTION:	Common Law
JUDGMENT OF:	Kirby J
DECISION:	(1) The orders of the learned Magistrate, made on 15 June 2004, dismissing each of the five charges against the defendant, Fayez Philippe Hanna, are set aside; (2) The matters, being the five charges against the defendant, are remitted to the learned Magistrate to be heard and determined according to law; (3) The defendant should pay the plaintiff's costs in respect of the appeal; (4) The Notice of Motion by the defendant, dated 21 July 2004, is dismissed; (5) The defendant should pay the plaintiff's costs in respect of the Notice of Motion; (6) I make an Order in Mr Hanna's favour, if he otherwise qualifies, for a Suitor's Fund Certificate.

CATCHWORDS:	Criminal Practice & Procedure - appeal from Magistrate dismissing charges under Migration Act 1958 - migration assistance - proper construction s276(1) and (2) and s281(1) Migration Act - objects of Act - s283(1) Act - meaning of "directly or indirectly represent" that he is a migration agent - error of law.
LEGISLATION CITED:	Migration Act 1958 Crimes (Local Courts Appeal and Review) Act 2001 Acts Interpretation Act 1901 (Cth) Interpretation of Legislation Act 1984 (Vic) Income Tax and Assessment Act 1936 (Cth)
CASES CITED:	Beckwith v The Queen (1976) 12 ALR 333 Mills v Meeking (1990) 91 ALR 16 R v Wanna (1997) 42 NSWLR 1 McConnell Dowell Constructors (Aust) P/L v The Environment Protection Authority (No 2) (2002) 54 NSWLR 39 Behn v Burness (1863) 3 B&S 751 Given v Pryor (1979) 39 FLR 437 Catterwell v Wright (1991) 56 SASR 581
PARTIES:	Director of Public Prosecutions (Cth) (Pl/Appl) Fayez Philippe Hanna (1st Def/Resp) Magistrate Daniel Reiss (2nd Def)
FILE NUMBER(S):	SC 2004/12171
COUNSEL:	Ms W Abraham QC (Pl/Appl) F P Hanna - in Person (1st Def/Resp) No appearance (2nd Def)
SOLICITORS:	Mr C Ng - DPP (Cth) (Pl/Appl) In Person (1st Def/Resp)

LOWER COURT JURISDICTION:	Local Court
LOWER COURT JUDICIAL OFFICER :	Mr D Reiss LCM

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JUSTICE DAVID KIRBY

Friday 29 July 2005

2004/12171 - COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS v FAYEZ PHILIPPE HANNA & ANOR

JUDGMENT

1 KIRBY J: The Commonwealth Director of Public Prosecutions appeals against the dismissal by Mr Daniel Reiss, Local Court Magistrate, of informations against Fayez Philippe Hanna. Mr Hanna was charged with five offences under the Migration Act 1958 ("the Act"). The Crown elected to deal with the matters summarily. Under s56(1) of the Crimes (Local Courts Appeal and Review) Act 2001, a prosecutor may appeal to the Supreme Court against an order dismissing a matter, the subject of summary proceedings, but only upon a question of law (s56(1)(c)).

2 The five charges against Mr Hanna fell into three groups. There were two charges arising from a complaint by Mr George Dimitrios and a further two from the complaint of Maged Zaki. The fifth charge was based on a representation said to have been made by Mr Hanna to Ms Janine Lamont, an officer of the Department of Immigration and Multicultural Affairs ("the Department") ("DIMA").

3 The issue of interpretation of the Migration Act 1958, which is said to be the error of law, arises most clearly in the charges concerning Maged Zaki. It is therefore convenient to begin with those charges.

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.

The statutory scheme.

36 Part 3 of the Migration Act 1958 is headed: "Migration agents and immigration assistance" and is divided into a number of divisions, including:

· Division 1: Preliminary (being a definition section) (ss275-279).

· Division 2: Restriction on giving immigration assistance and making of immigration representations (ss280-285).

· Division 3: Registration of migration agents (ss286-306).

37 The first charge against Mr Hanna, relating to Mr Zaki, was brought under s280(1) which is in these terms:

" s280 Restrictions on giving of immigration assistance
(1) Subject to this section, a person who is not a registered agent must not give immigration assistance.
Penalty: 50 penalty units.
(1A) An offence against subsection (1) is an offence of strict liability.
Note: For strict liability , see section 6.1 of the Criminal Code.
(2) This section does not prohibit a parliamentarian from giving immigration assistance.
(3) This section does not prohibit a lawyer from giving immigration legal assistance.
(4) This section does not prohibit an official from giving immigration assistance in the course of his or her duties as an official.
(5) This section does not prohibit an individual from giving immigration assistance if the assistance is:
(a) not given for a fee or other reward, and
(b) not given in his or her capacity as an employee of, or a voluntary worker for, another person or organisation; and
(c) not given in the course of, or in association with, the conduct of a profession or business.
(6) This section does not prohibit an individual from giving immigration assistance in his or her capacity as:
(a) a member of a diplomatic mission; or
(b) a member of a consular post; or
(c) a member of an office of an international organisation."

38 Section 280(7) is not relevant. It includes definitions of the terms in the exception provided by s280(6).

39 The second charge against Mr Hanna, relevant to Mr Zaki, was based upon s281(1). That section is as follows:

" s281 Restriction on charging fees for immigration assistance
(1) Subject to subsection (3), a person who is not a registered agent must not ask for or receive any fee or other reward for giving immigration assistance.
Penalty: Imprisonment for 10 years.
(2) Subject to subsection (3), a person must not ask for or receive any fee or other reward for the giving of immigration assistance by another person who is not a registered agent.
Penalty: Imprisonment for 10 years.

(3) This section does not prohibit:
(a) a lawyer from asking for or receiving a fee for giving immigration legal assistance; or
(b) a person from asking for or receiving a fee for the giving of immigration legal assistance by a lawyer.
(4) A person is not entitled to sue for, recover or set off any fee or other reward that the person must not ask for or receive because of subsection (1)."

40 It was common ground that Mr Hanna was not, after 10 June 1999, a registered agent. Both charges involved proof by the Crown that he had given "immigration assistance". That term was defined in Division 1, s276 as follows:

" 276 Immigration assistance
(1) For the purposes of this Part, a person gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist a visa applicant or cancellation review applicant by:
(a) preparing, or helping to prepare, the visa application or cancellation review application; or
(b) advising the visa applicant or cancellation review applicant about the visa application or cancellation review application; or
(c) preparing for proceedings before a court or review authority in relation to the visa application or cancellation review application; or
(d) representing the visa applicant or cancellation review applicant in proceedings before a court or review authority in relation to the visa application or cancellation review application.
(2) For the purposes of this Part, a person also gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure 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; or
(c) representing the other person in proceedings before a court or review authority that relate to the visa for which the other person was nominating or sponsoring a visa applicant (or seeking to nominate or sponsor a visa applicant) for the purposes of the regulations.
(3) Despite subsections (1) and (2), a person does not give immigration assistance if he or she merely:
(a) does clerical work to prepare (or help prepare) an application or other document; or
(b) provides translation or interpretation services to help prepare an application or other document; or
(c) advises another person that the other person must apply for a visa; or
(d) passes on to another person information produced by a third person, without giving substantial comment on or explanation of the information.
(4) A person also does not give immigration assistance in the circumstances prescribed by the regulations."

41 It is not suggested that the regulations created any relevant exception. Certain additional terms were defined. They included: (s275)

" migration procedure means the law, and administrative practice, relating to immigration.
registered agent means an individual registered as a migration agent under section 286."

42 Plainly Mr Hanna, by reason of his background as a registered agent since 1994, had knowledge of, and experience in, migration procedure. The issue was whether he had used or purported to use that knowledge and experience to assist a visa applicant by, relevantly (s276(1)):

"(a) preparing or helping to prepare the visa application; or
(b) advising the visa applicant about the visa application."

43 The same issue arose in the context of the charge under s281(1) (in respect of asking for, or receiving, a fee or other reward for immigration assistance given). That section involved the additional question of the meaning to be given to the phrase "receiving a fee or reward for giving immigration assistance". On that issue, his Honour said this: (p12)

"There is no definition of 'receiving' in the Act, nor has any relevant case law been brought to the attention of the court. It appears that 'receiving' must mean more than just physically handling the money. If it was just the physical handling the money a receptionist working for a registered migration agent would be in breach of section 281(1) and would not fall within in (sic) specific exceptions provided elsewhere in the Act. 'Receiving' must therefore also involve a taking of legal possession."

44 There must, as a matter of evidence or inference, be a nexis between the action said to constitute the assistance and the money paid or reward given, such that the payment or reward can be characterised as recompense for the assistance provided.

45 In the context of s281(1), his Honour made the following finding of fact: (p13)

"The evidence of Mr and Mrs Zaki was that they were dealing with Mr Hanna and there was nothing in their evidence that indicated that they believed they were dealing with Middle East Group Pty Ltd. The evidence before the court clearly points to Mr Hanna receiving the money personally and for his own benefit and not for or on behalf of his company."

46 Nonetheless, both the Zaki charges were dismissed because his Honour ultimately determined that s276 required that the person to whom the assistance was given must be, "a visa applicant or a cancellation review applicant" (s276(1)) or under s276(2), "a sponsor". In the context of the Dimitrios charges, when construing the same section, his Honour commented that s276 was "complete, specific and exhaustive". In determining the Zaki charges, his Honour said this: (p14)

"... Mr Zaki was therefore neither a 'visa applicant', a 'cancellation review applicant' nor a 'sponsor'. Therefore the advice or assistance provided to him does not fall under the definition of 'immigration assistance' in s276 of the Act. As such the assistance provided to Mr Zaki was not in contravention of section 280 and his receiving of fees for the assistance as not contrary to section 281. The immigration assistance was provided to Mr Saman, not Mr Zaki as charged. This is far more than a mere particular or variance that can be disregarded. It is fundamental to the two charges. These two charges are therefore not made out and are dismissed."

Was there an error of law?

47 The appellant argued that his Honour was in error in a number of respects:

· First, there was no warrant for the narrow construction given to the words "immigration assistance". It was not a requirement that the "immigration assistance" had to be given to the "visa applicant" (or "cancellation review applicant") personally or directly, and the charge need not so allege. To so construe the legislation, according to the appellant, would circumvent the obvious purpose of these provisions, which was to protect a vulnerable class of individuals, namely those seeking immigration assistance.

· Secondly, if that be wrong, his Honour ought, alternatively, to have allowed the informant to amend the charge to name the visa applicant. The evidence would not change. The name of the person in the charge was simply a particular. Amending the name to substitute Mr and Mrs Saman could not possibly prejudice the defendant.

48 Mr Hanna responded that the interpretation in the Lower Court was plainly correct. He did not provide immigration assistance. Such services as he performed came within the exemption in s276(3). He merely performed clerical work (such as assisting the client in completing the Cost Agreement (Exhibit 25) or collecting money for the business and writing receipts) (s276(3)(a)). He also provided translation or interpretive services (s276(3)(b)). Mr Hanna, on occasions, said he passed information to a third person without substantial comment on, or explanation of, that information (s276(3)(d)). He regarded the prosecution as conducting a vendetta against him. Indeed, he filed in these proceedings a Notice of Motion for a Declaration that the appeal was an abuse of process. I will later refer to that Motion.

49 In the interpretation of the Migration Act there is, perhaps, tension between two rules of construction. The first rule relates to the way in which a penal statute should be construed. There was a time where a penal statute was interpreted strictly. Where two reasonable constructions were open, the Court was obliged to favour that which was the more lenient. There has been some retreat from that approach (see Pearce & Geddes, "Statutory Interpretation Australia" (5th ed) pp232-241). Gibbs J (as he then was) said this in Beckwith v The Queen (1976) 12 ALR 333: (at 339)

"The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences ... The rule is perhaps one of last resort."

50 The second rule is concerned with an identification of the purpose of the legislation and its interpretation, in a way which promotes that purpose, rather than defeats it. Where there is a choice between one construction which would promote the purpose of the legislation and another which would not, the Court should choose the former. Expression is given to that rule in s15AA of the Acts Interpretation Act 1901 (Cth), which is in these terms:

"s15AA In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object."

51 Again, the matter is discussed by Pearce & Geddes (supra pp24-30) where reference is made to the judgment of Dawson J in Mills v Meeking (1990) 91 ALR 16 at 30-1. In that case, his Honour dealt with an equivalent provision in Victoria (s35(a) of the Interpretation of Legislation Act 1984 (Vic)). He said this:

"The approach required by s35 needs no ambiguity or inconsistency; it allows a court to consider the purposes of an Act in determining whether there is more than one possible construction. Reference to the purposes may reveal that the draftsman has inadvertently overlooked something which he would have dealt with had his attention been drawn to it and if it is possible as a matter of construction to repair the defect, then this must be done."

52 The purpose of these provisions of the Migration Act was considered in R v Wanna (1997) 42 NSWLR 1, by the New South Wales Court of Appeal. A question had been referred to the Court by the trial Judge in a prosecution of Mr Wanna under s281(1) of the Migration Act 1958, that being the section which creates an offence to receive money or benefit for immigration assistance where the person charged is not a registered agent (there being such a charge against Mr Hanna). The legislation at that time defined "immigration assistance" in s276 in almost the same words as now appear. However, there was one difference. Whereas the present section defines "immigration assistance" as the use of "knowledge of or experience in migration procedure to assist a visa applicant", the section at that time used the expression, "to assist an entrance applicant". The term "entrance applicant" was defined as meaning "an applicant for a visa under this Act". In Wanna it was argued, on behalf of the accused, that, to be an entrance applicant, the visa application had to be lodged with the Department. Here, it had never been lodged. Indeed, that was one of the grievances of the complainant, that the accused had taken his money and failed to lodge the application for a visa.

53 Gleeson CJ (with whom Mason P and and Sheller JA agreed) rejected that submission. He said this: (at 3)

"In relation to the meaning of the legislation, and the approach to be taken to its construction, the decision of the High Court in Cunliffe v Commonwealth of Australia (1993) 182 CLR 272 is instructive. In the judgment of Dawson J in that case (at 358) there is a reference to the purpose of the legislation as explained at the time of its enactment. The minister said (House of Representatives, Hansard , 27 May 1992 at 2937):
'This initiative reflects the Government's concern over the level and nature of complaints made against incompetent or unscrupulous agents, complaints which would be familiar to many members of this chamber. It also recognises the fact that many of those who are likely to seek the assistance of agents are among the most vulnerable in our society, sometimes having a poor grasp of English, fear of authority or meagre financial resources ...
I do not intend to list comprehensively problems which led to the development of the scheme, but some examples include agents having been paid to lodge applications without paying the prescribed fees, thereby not giving effect to the application, lodging applications tardily in a way which adversely affects the entitlements of applicants; and holding passports as security and then demanding extra payments. There are also examples of agents providing incompetent advice because they lack even a rudimentary knowledge of the Migration Act and regulations.'"

54 The Chief Justice said that sections 275, 276 and 281 should be read together (at 3). He added: (at 4)

"It should be noted that when an offence against s281 is committed by reason of conduct of the kind described in par (a) and par (b) or s276, that offence will be complete when the offender asks for or receives a fee for engaging in conduct of the kind described in par (a) or par (b). That will commonly occur before any application for a visa is received by the department."

55 Here, it is arguable that the statute defining "immigration assistance" admits two possible constructions. On the one hand the words in s276(1), "to assist a visa applicant ..." and the words in s276(1)(b), "advising the visa applicant" could be interpreted as requiring the assistance or the advice to be given personally or directly to the applicant seeking a visa, and that the charge should so allege. Alternatively, it may be suggested that whatever is done by the person charged, may be done either through personal or direct contact or through some intermediary. To succeed in a prosecution, the Crown must, on this view, prove the following:

First, that Mr Hanna was not a registered migration agent.
Second, that Mr Hanna did certain things that fell within the description provided by s276(1)(a) to (d).
Third, that the things done by Mr Hanna may be characterised as "assisting the visa applicant", in this case, Mr and Mrs Saman.
Fourth, that in doing those things, Mr Hanna used or purported to use knowledge of or experience in migration procedure (that is, the law and administrative practice relating to immigration).
Fifth, that what was done by Mr Hanna did not come within the exception identified in s276(3) of the Act.

56 In other words, the assistance to the applicant referred to in the introductory words to s276(1), and the advice referred to in s276(1)(b) can be provided through an intermediary, as in this case, through Mr Zaki. Such a construction would promote the obvious purpose of the Act. A narrow construction, on the other hand, would defeat that purpose. If the narrow construction favoured by the learned Magistrate, were adopted, it would be a simple matter to circumvent the registration provisions of the legislation by simply never dealing face to face or directly with an applicant for a visa or cancellation review applicant, but always through an intermediary.

57 I accept the construction suggested by the appellant. I believe that there was error in the interpretation of these provisions. It is plain that Mr Hanna did a number of things which were capable of being regarded as "immigration assistance", designed to assist the visa applicants, Mr Salam and Ms Mervat Zaki, including:

· advice as to which form of visa should be pursued (namely, a business visa).

· advice as to the documents that should be assembled to enable completion of the application.

58 It will be noticed that the Cost Agreement used by Mr Hanna, which he asked Mr Zaki to sign (supra para 16), recognises in the introductory words that often those who present themselves to an agent, seeking assistance, will be family members and friends of the prospective applicant, acting as intermediaries.

59 It follows that the naming of Mr Zaki in the charge was not an element of the charge. It was a particular to enable the defendant to know the case he had to meet. It is plain that Mr Hanna was in no doubt that the case he had to meet concerned the visa application by Mr Salam and Mr Zaki's sister, being Mr Salam's wife (McConnell Dowell Constructors (Aust) Pty Limited v The Environment Protection Authority (No 2) (2002) 54 NSWLR 39, per Ipp JA at 42.

The charges concerning George Dimitrios.

60 Mr Hanna was charged with similar offences arising from the complaint of Mr Dimitrios. The charge under s280(1) was expressed in these terms:

"That between 1 April 2000 and 31 April 2000 at Bankstown in the State of New South Wales, (Fayez Philippe Hanna) who was not a registered migration agent, did give immigration assistance to George Dimitrios."

61 The charge under s281(1) was as follows:

"That on 5 July 2000 at Bankstown in the State of New South Wales, (Fayez Phillipe Hanna) who was not a registered migration agent, did receive fees namely $2,000 for giving immigration assistance to George Dimitrios."

62 The learned Magistrate helpfully summarised the evidence in chief of Mr Dimitrios in these words: (p2)

· "Mr Dimitrious was a joint owner (of) the company Bondi Surf Seafoods Pty Ltd. The company operated a restaurant in Bondi.

· He stated that 'we' wanted to sponsor a visa application for a Mr Min Woo Kim so that he could work as a chef in the restaurant.

· Mr Kim told him of Mr Hanna. In March 1998 he contacted Mr Hanna to assist organising a visa. He rang Mr Hanna and said inter alia 'I' wish to sponsor Mr Kim. An appointment was made and he and Mr Kim met Mr Hanna in his office on 23rd March 1998. Mr Hanna asked them questions and gave them advice. I interpose here that Mr Hanna was of course at this time a registered migration agent.

· Mr Dimitrios signed an agreement for the defendant to act in respect to Mr Kim's visa application (exhibit 6). The agreement provided for the payment to Mr Hanna's business of two amounts of $2,000.00. Mr Dimitrios paid an initial amount of $2,000 to Mr Hanna as a deposit.

· Mr Dimitrios said he then (had) constant problems in contacting Mr Hanna and that these problems continued through to 2000. He says that he finally managed to contact Mr Hanna in May 2000. Mr Hanna informed him that the file had been closed. He then organised an urgent meeting between himself and Mr Kim and Mr Hanna. A meeting was held on 12th May 2000 in which he says Mr Hanna told him that he would personally ensure Mr Kim's matter would be acted upon and followed through. Mr Hanna said that the file would be reopened and forms re-lodged. That meeting involved Mr Hanna giving of advice concerning Mr Kim's visa options and the action he should take. At that meeting Mr Dimitrios signed pre-forma DIMA documents. He said that they were blank at the time, meaning that the blank spaces in the forms had not been completed. He said that the handwritten entries on DIMA Form 1068 (exhibit 7) were entered later by others after he had signed it.

· Mr Dimitrios also gave evidence of being present when Mr Kim signed an incomplete DIMA form, being exhibit 7.

· Mr Kim left the country at the end of May 2000 and returned on 10th June 2000. He had a further meeting with Mr Hanna and Mr Kim on 13th June 2000. He said that further 'blank' pro-forma documents were signed. He says that in a phone call Mr Hanna requested the remaining $2,000 for the work be paid in cash. He paid Mr Hanna the cash in person on 5th July 2000 and was given a receipt by Mr Hanna. He said there were further problems contacting Mr Hanna after that.

· Mr Kim's application was ultimately refused by DIMA and Mr Kim subsequently left the country."

63 Mr Dimitrios was cross examined at length by Mr Hanna. On the assessment made by his Honour, he was not shaken. Nonetheless, Mr Hanna established a number of matters, emerging from the following observations by his Honour: (p3)

· ”Mr Dimitrios initially stated that he did not have any dealings with Ms Tatiano Onano. He said he did not recall having received a letter from Ms Onano when she was still with the defendant's business in August 2000 (exhibit 12). Although Mr Hanna's manner of cross examination was unusual, somewhat imprecise and often confusing, Mr Dimitrios did appear to be a little evasive about Ms Onano's clear involvement in Mr Kim's matter. He did seem to ultimately concede she did have some involvement towards the later stages.

· There was no reference in Mr Dimitrios' evidence in chief of him having any dealings with a Mr David Cook from the defendant's firm. At first he denied any such dealings in cross examination. Ultimately he conceded that it was possible. Certainly exhibit 18 indicates ome involvement of Mr Cook in 1998. Therefore, although Mr Dimitrios strongly emphasised on a number of occasions that only Mr Hanna dealt with him and Mr Kim, he ultimately conceded that both Mr Cook and Ms Onano might have had some involvement with the matter.

· Mr Dimitrios stated in cross examination that he did not like Mr Hanna and that he did not like the way he handled Mr Kim's matter but that he was not angry with him. It was clear from his evidence that Mr Dimitrios was unhappy with the level, manner and quality of service by Mr Hanna and his business. He was therefore not an entirely independent or dispassionate witness."

64 Ms Tatianna Onano gave the following evidence which his Honour summarised in these words: (p4)

· "She stated that Mr Hanna was overseas for a period of time. In respect to Mr Dimitrios and Mr Kim's matter she stated that it was her handwriting and signature on the receipt for the second $2,000 payment on 5th July 2000 (exhibit 9). She could not recall the circumstances as to how this occurred. She also stated that she filled in forms in respect to this matter. She was not clear in her answers whether or not she had any personal dealings with Mr Dimitrios at that time. Her evidence in chief is consistent with that of Mr Dimitrios that the DIMA forms were completed after they had been signed by Mr Dimitrios and Mr Kim. I note here that if that was the case it indicates inappropriate conduct.

· She stated she had no further dealings with this matter after filing in the forms in July 2000. I note here that this is contradicted by the fact that she sent a letter to Mr Dimitrios dated 1st August 2000 (exhibit 13).

· She went on to state that she left Mr Hanna's business in September 2000. ..."

65 In cross examination Ms Orano said the following, as set out in the judgment of his Honour: (p5)

· "When Mr Hanna was overseas she would handle all the migration matters.

· She would accept and receipt money on behalf of the business.

· She stated that she filled in the application in respect to Mr Kim and that she lodged the applications with the Department. ..."

66 A large number of documents were tendered by both the Crown and Mr Hanna. Commenting upon these exhibits, his Honour said this: (p6)

"One thing that is clear from the documents is that it was Bondi Surf Seafoods Pty Ltd that engaged the services of Mr Hanna and/or his company and which sought to sponsor Mr Kim's visa application. For example, exhibits 15, 16 and 17 are copies of completed DIMA Form Number 956 'Appointment of Person to Act as Agent'. Exhibit 16 states that 'George Dimitrios (Director of Bondi Surf Seafood)' appoints as its agent 'Fayez Philippe Hanna (AMI Migration Consultants)'. Mr Dimitrios signed it on 23rd March 1998 and the seal of Bondi Surf Seafoods Pty Ltd is affixed. Exhibit 17 signed on the same date states that Mr Kim authorises the defendant to act as his agent for him in his visa application. Exhibit 15 states 'George Dimitrios (Director of Bondi Surf Seafood) appoints as its agent AMI Migration Consultants'. This is not inconsistent with the oral evidence of Mr Dimitrios. The evidence shows that Mr Dimitrios was clearly acting in his capacity as a director of Bondi Surf Seafoods Pty Ltd and not as an individual on his own behalf."

67 Mr Hanna did not give evidence.

68 His Honour then dealt with the construction of s276(2). The issue was the meaning of the definition of "immigration assistance" in the context of the sponsorship of a visa applicant. His Honour said this, referring to s276(2): (p7)

"In subsection (2) 'the person' must be the person giving the assistance and the reference to the 'other person' in subsection (2) and in paragraphs (a) and (b) must be a reference to the sponsor."

69 His Honour went on to say that a "person" in that section could either be a natural person or a corporation (s22 Acts Interpretation Act 1901). His Honour thereafter reached the following conclusion: (p7)

"As noted above the oral evidence and more clearly in the documentary evidence the sponsor for Mr Kim's visa application was Bondi Surf Seafoods Pty Ltd not Mr Dimitrios. As Mr Dimitrios was not a sponsor the giving of information to him as an individual could not fall within the definition of 'immigration assistance'. The charges would have needed to specify the provision of immigration assistance was to Bondi Surf Seafoods Pty Ltd to have been within the scope of the Act. This is far more than a mere particular or variance that can be disregarded. It is fundamental to the two charges and provides a basis for the two charges to be dismissed."

70 However, for the reasons already stated, I believe, with respect, that such a construction of s276(2) involves error. The Crown, to succeed against Mr Hanna under s280(1) of the Act, was obliged to prove the following:

First, that Mr Hanna was not a registered migration agent.
Second, that Mr Hanna did certain things that fell within the description provided by s276(2)(a) to (c).
Third, that the things done by Mr Hanna may be characterised as "assisting another person (which includes a corporation) to sponsor a visa applicant", Mr Min Woo Kim.
Fourth, that in doing those things, Mr Hanna used or purported to use knowledge of or experience in migration procedure (that is, the law and administrative practice relating to immigration).
Fifth, that what was done by Mr Hanna did not come within the exception identified in s276(3) of the Act.

71 The reference in the charge to Mr Dimitrios, was a particular, to identify the occasion. It was not an element of the offence. It was capable of amendment, if that was thought necessary, to indicate that the immigration assistance was given to Mr Dimitrios on behalf of the sponsor of Min Woo Kim, Bondi Surf and Seafoods Pty Limited.

72 Here, having construed the section in the way indicated, his Honour, nonetheless, identified certain issues in respect of Mr Dimitrios' credit. He said this: (p8)

"As noted above, Mr Dimitrios' evidence had some weakness in respect to the involvement of Ms Onano. Further, as also noted above, he was not an entirely independent and dispassionate witness. Further, Mr Dimitrios acknowledged signing forms before the details were completed, including the name and number of the migration agent. There is no evidence to the contrary of this evidence and I accept it to have been the case. This means that Mr Dimitrios declared information to be correct that had not yet been inserted on the form. This reflects adversely upon his credibility. Given these weaknesses in the evidence of Mr Dimitrios, the absence of any supporting oral evidence, the absence of supporting documents and the various documents that in fact point against Mr Hanna as being the migration agent involved, the evidence falls short of establishing the prosecution case beyond reasonable doubt."

73 Nonetheless, the issue remains whether the actions (if any) of Mr Hanna, in respect of which his Honour was satisfied beyond reasonable doubt, amounted to "immigration assistance" under s276(2) properly construed, such that the Crown had proved beyond reasonable doubt the elements of the charge, as set out above. Those elements, of course, included the Crown proving that Mr Hanna's conduct did not come within the exception defined by s276(3).

74 Notwithstanding the adverse comments upon Mr Dimitrios by his Honour, I believe that the Court still needs to address that issue. The charges which relate to Mr Dimitrios should, therefore, be returned to his Honour to determine according to law.

The charges concerning Ms Lamont.

75 The final charge against Mr Hanna concerned a complainant, Ms Lamont, who was a Departmental officer. The charge was brought under s283(1) of the Act, which is in these terms:

"s283(1) A person who is not a registered migration agent must not directly or indirectly represent that he or she is such an agent."

76 As mentioned, a "registered agent" is defined by s275 to mean "an individual registered as a migration agent". It is common ground that Mr Hanna was not so registered.

77 The charge against Mr Hanna was expressed in these words:

"That on 24 September 1999 at Bankstown in the State of New South Wales, (Fayez Philippe Hanna) who was not a registered migration agent, did directly represent himself as a registered migration agent to Janine Lamond, an officer of the Department of Immigration and Multicultural Affairs."

78 In respect of that charge, as with other charges, Mr Hanna did not give evidence, although he did tender certain documents which were marked as exhibits. Once more it is convenient to turn to the comprehensive judgment of his Honour for a statement of the facts. His Honour said this, concerning the evidence in chief of Ms Janine Lamont: (p14)

· "She was employed by DIMA from 5th November 1979 until 10th July 2000. As at September 1999 she was client services manager of the counter services area at DIMA's Bankstown office.

· She said she recognised Mr Hanna in court as the person that she saw at the counter of the Bankstown office on 24 September 1999. Prior to 24th September 1999 she had not met Mr Hanna but she knew his name and that he was a registered migration agent.

· On 24th September 1999 a member of staff called her to the counter. She had a conversation with a woman who said she was a migration agent and that she worked for Mr Hanna. That migration agent was with a Ms Hammad who had an immigration issue. The migration agent said that she had contacted Mr Hanna and that he would attend the office shortly. Ms Lamont then went back to her office.

· When Mr Hanna arrived at the DIMA office she went back out to the counter and introduced herself to him. Mr Hanna introduced himself to her as Mr Hanna of AMI Consultants. They then had a discussion concerning Ms Hammad and bridging visas. Mr Hanna requested that his client be issued with a bridging visa A. She advised him that his client was not entitled to one and that a bridging visa E was the applicable visa. Mr Hanna vigorously debated the issue. She then offered to provide Mr Hanna with a copy of the relevant legislation and went and obtained a copy and gave it to him.

· During the above conversation, Mr Hanna showed to her various documents such as a passport, visas and application forms.

· Mr Hanna became quite aggressive and said that Ms Lamont and her staff did not know what they were doing. He then pulled out a red international press pass. She then asked Mr Hanna 'are you now identifying yourself to me as a member of the press as opposed to a migration agent?' and he replied 'yes'. She then went away to get further advice from a supervisor and shortly after returned and continued to speak with Mr Hanna. He then put away the press card and said 'words to the effect' that 'I am representing my client as a migration agent'.

· Mr Hanna insisted that his client be issued with a substantive visitor's visa until December 1999. She then said that she spoke to Ms Hammad's fiancée about the implications of Ms Hammad leaving the office without a bridging visa. After some further conversations, (at) Mr Hanna's initiative, Ms Hammad, Mr Hanna and the others in their group all left the office.

· She made a file note of the incident on the same day (exhibit 32)."

79 The cross examination of Ms Lamont, according to the summary provided by his Honour, revealed the following: (p15)

· "The woman at the counter who said she worked for Mr Hanna said to her that Mr Hanna was a migration agent. She later appeared to move away from this and said that the woman had said that she was herself a migration agent and that she worked with AMI Consultants (see transcript, (30/5/03, page 12, lines 17 to 32)).

· She did not presume Mr Hanna was a migration agent but that was how he introduced himself to her (30/5/03, page 13 and page 23 lines 40-41).

· Mr Hanna did not speak to Ms Hammad in her presence.

· That Ms Hammad's bridging visa expired on 22nd September 1999 and that on 24th September she would have been illegally in the country. She was therefore liable to be detained. There were compliance officers stationed at Bankstown who had responsibility for detaining persons illegally in the country.

· She acknowledged that a statement she had made that was provided in the prosecution brief of evidence stated the date of the attendance as 22nd September 1999."

80 In re-examination, Ms Lamont confirmed that the correct date of the incident was 24 September 1999 (being the date in the charge).

81 His Honour recognised that a key exhibit was the comprehensive file note made by Ms Lamont after her encounter with Mr Hanna (exhibit 32). His Honour accepted that the note was substantially contemporaneous with the events it purported to describe and was an accurate and reliable description of those events.

82 It was the Crown case that Mr Hanna had, in terms, expressly said that he was a migration agent, when in truth he was not. His Honour observed that the contemporaneous note of Ms Lamont did not include the words which, in her evidence, she attributed to Mr Hanna. For this and other reasons, his Honour was not satisfied beyond reasonable doubt that Mr Hanna had expressly stated to Ms Lamont that he was a "migration agent".

83 His Honour then construed the section, s283(1), as follows: (p18)

"This charge is brought pursuant to section 283(1) of the Act that provides that '[a] person who is not a registered (migration agent) must not directly or indirectly represent that he or she is such an agent'. There is no definition in the Act as to the meaning of 'represent', although certainly the general meaning of that word would have a very broad scope. As can be seen the section does delineate between representations that are made 'directly' and 'indirectly'. This distinction could be one between a representation made directly by the person to another as opposed to indirectly to a person through a third person. Alternatively, the distinction could be between a representation made expressly and in terms as opposed to an implied or inferred representation. I will adopt this latter interpretation as it appears the more likely and it is also more in keeping with the general principle of dealing with ambiguities in the meaning of the words in a manner more favourable to a defendant."

84 Having reached that view, his Honour then dealt with the charge. He said this: (p18)

"Mr Hanna has been charged with 'directly' representing himself (as) a migration agent. Given my interpretation of that word as it appears in the section and given that I have not been satisfied to the requisite standard that an express representation was made this charge has not been made out. This charge is therefore dismissed."

Was there an error of law?

85 The judgment of his Honour is a thoughtful exposition on the strengths and weaknesses of Ms Lamont's evidence. It was plainly open to his Honour to doubt that Mr Hanna had expressly stated to Ms Lamont that he was a migration agent. No error of law arises from such a finding.

86 Having made that finding, and given that the indictment alleged that Mr Hanna "directly represented himself as a registered migration agent", does it follow that the charge had to be dismissed and hence there was no error? In my view it does not.

87 Section 283(1) makes it an offence for a person who is not a registered migration agent to represent (directly or indirectly) that he or she is an agent. A number of issues arise.

· First, what, in the context of that section, does the word "represent" mean?

· Secondly, what is the meaning and the significance of the words "directly or indirectly"? What is the offence created by the section? Is it one offence, or are there two offences, one involving a direct representation and the other an indirect representation, as the charge against Mr Hanna suggests?

88 Dealing with these issues, "a representation", in the context of this legislation, is simply a statement of fact. A person by some means must make a statement of fact to another that they are a registered migration agent, when they are not. The statement may be express or implied. Where it is express, it may be oral or in writing. Where it is implied, it may be by gestures or conduct (cf Behn v Burness (1863) 3 B&S 751, per Williams J at 753). In Given v Pryor (1979) 39 FLR 437, Franki J adopted a broad definition of representation, incorporating each of these elements, relying upon the following statement in 22 Halsbury's Laws (3rd ed) 118:

"A representation is a statement made by a representor to a representee and relating by way of affirmation, denial, description or otherwise to a matter of fact. The statement may be oral or in writing or arise by implication from words or conduct."

89 Moving to the second issue, there is, in my view, one offence. The offence is that of a person representing falsely that he or she is a registered migration agent. The words "directly or indirectly" simply indicate the way the representation may be made, and the breadth of the section. Relevantly, in this context, a person may represent that they are a migration agent by holding themselves out as such. Bollen J considered a similar section in another Commonwealth Statute in Catterwell v Wright (1991) 56 SASR 581. His Honour in that case was concerned with the Income Tax and Assessment Act 1936 (Cth), s251(o). That section made it an offence for a person, not a registered tax agent, to "directly or indirectly" represent himself to be a tax agent. The information simply repeated the words of the section, charging the accused with having "directly or indirectly represented himself to be a tax agent". The information was challenged as being bad for duplicity. Bollen J ruled that it was not, saying this: (at 586)

"So here I think that one act is to be penalised. That is, the representing something which is not true. I think that so whether the representation be done directly or indirectly. As I have said, representations can be by direct words or even by direct conduct. It can be done by indirect words which contain innuendo. It can be done by indirect conduct, innuendo by conduct."

90 Hence whether the representation was made directly or indirectly (or both) is not an element of the offence. It is a matter for particulars, so that the accused may understand the case he or she is obliged to meet. The reference to "directly" in the indictment was therefore capable of amendment, if it was open to characterise what Mr Hanna did as having indirectly represented himself as a migration agent (McConnell Dowell Constructors (Aust) Pty Limited v The Environment Protection Authority (No 2) (supra)). In the same way, the date referred to in the charge (24 September 1999) was capable of amendment, substituting 22 September 1999 if that was the correct date.

91 The final charge, therefore, should also be returned to the learned Magistrate to determine according to law.

Notice of Motion by Mr Hanna.

92 Mr Hanna filed a Notice of Motion on 21 July 2004 in which he sought the following orders:

1. That the proceedings on the summons filed herein be permanently stayed.

2. Alternatively, that the proceedings on the summons filed herein be dismissed.

3. Alternatively, that the proceedings on the summons filed herein be struck out.

4. That the plaintiff pays the first defendant's costs of the proceedings on an indemnity basis.

5. Such further or other orders as to this Honourable Court may seem fit.

93 The Notice of Motion was supported by an affidavit of Mr Hanna of 20 July 2004, in which he suggested that the Commonwealth Director of Public Prosecutions, in seeking to overturn the dismissal by the magistrate of the charges against him, and pursuing the appeal, was guilty of an abuse of process.

94 The motion was heard at the same time as the Commonwealth appeal. I believe there is no substance in Mr Hanna's complaints. The Commonwealth is given a statutory right to appeal. It is not an abuse of process to exercise that right.

Orders.

95 I therefore make the following orders:

1. The orders of the learned Magistrate, made on 15 June 2004, dismissing each of the five charges against the defendant, Fayez Philippe Hanna, are set aside.

2. The matters, being the five charges against the defendant, are remitted to the learned Magistrate to be heard and determined according to law.

3. The defendant should pay the plaintiff's costs in respect of the appeal.

4. The Notice of Motion by the defendant, dated 21 July 2004, is dismissed.

5. The defendant should pay the plaintiff's costs in respect of the Notice of Motion.

6. I make an Order in Mr Hanna's favour, if he otherwise qualifies, for a Suitor's Fund Certificate.

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