Hanna v Department of Immigration Multicultural and Indigenous Affairs - [2004] NSWCA 275

No judgment structure available for this case.

CITATION: Hanna v DIMIA [2004] NSWCA 275

HEARING DATE(S): 13 May 2004

JUDGMENT DATE:
11 August 2004

JUDGMENT OF: Santow JA at 1; Bryson JA at 40; McClellan AJA at 41

DECISION: Summons dismissed with costs.

CATCHWORDS: ADMINISTRATIVE LAW - Applicant was a registered migration agent between 9 June 1994 to 9 June 1999 - applicant had advertisements in El-Massry continuously since 1997 - cheques dishonoured - registration as migration agent lapses - charges of advertising when not registered migration agent - applicant seeks by summons judicial review to set aside, stay permanently or otherwise quash or dismiss conviction made in the Local Court, together with decision of District Court declining to set aside conviction on appeal - relief sought pursuant to s69 Supreme Court Act, 1970 - whether inconsistency of prior acquittal of charge under s283 Migration Act 1958 and conviction under charge pursuant to s284 of that Act, was an affront to logic and commonsense so that conviction should be quashed - appeal as of right to District Court - whether application incompetent and would have no merit in any event - jurisdictional error or error of law on the face of the record.

LEGISLATION CITED: Crimes (Local Courts Appeal and Review) Act 2001 Pt 5; s53
Criminal Appeal Act 1912 s5B
Justices Act Pt 5A; s120
Migration Act 1958 s283; s284
Supreme Court Act, 1970 s69
Supreme Court Rules Pt 40 r1; Pt 54 r2

CASES CITED: Australian & Investment Commission v Farley (2001) 51 NSWLR 494
Craig v South Australia (1995) 184 CLR 163
Fox v Percy (2003) 197 ALR 201
MacKenzie (1996) 90 A Crim R 468

PARTIES :
Fayez Philippe HANNA (Applicant)
DEPARTMENT OF IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS (DIMIA) (Respondent)

FILE NUMBER(S): CA 41212/03

COUNSEL: Applicant (in person)
G FARMER (Respondent)

SOLICITORS: Commonwealth Director of Public Prosecutions (Respondent)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S):

LOWER COURT
JUDICIAL OFFICER : Walmsley DCJ

CA 41212/03

SANTOW JA
BRYSON JA
McCLELLAN AJA
11 AUGUST 2004

Fayez Philippe HANNA v DEPARTMENT OF IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS (DIMIA)

Judgment

1 SANTOW JA:

INTRODUCTION

2 The applicant, Mr Hanna, appearing self-represented, has sought to press a summons for judicial review filed on 19 December 2003. Although the summons is not in proper form, the applicant explained that he sought to have set aside, stayed permanently or otherwise quashed or dismissed a conviction made originally in the Local Court, together with the determination by the District Court declining to set it aside on appeal. It appears that the applicant seeks relief from the Court pursuant to s69 of the Supreme Court Act, 1970.

3 Contrary to the respondent’s submissions, it is not Pt 54 r2 of the Supreme Court Rules or s5B Criminal Appeal Act 1912 which regulates the present proceedings as presently constituted, but Pt 40 r1, though that Rule presupposes that there are still proceedings on foot. In any event this Court has heard the applicant’s submission so far as based on s69 of the Supreme Court Act.

4 While the applicant put his case for that relief in various ways, the central contention by the applicant was this. An acquittal of a charge against him under s283 of the Migration Act 1958 (“the Act”) prohibiting a false representation that he was a registered Migration Agent, was inconsistent with conviction under a charge pursuant to s284 of that Act restricting self-advertising of the giving of immigration assistance. He submitted that the conviction in such circumstances was “an affront to logic and common sense” so that the conviction should be quashed.

5 Other grounds were also pressed orally. These were essentially an attempt to re-agitate factual findings which appear to be substantially based on credibility and which underpinned the decision of the Local Court as well as the District Court’s rejection of the applicant’s appeal. The applicant contended that these amounted to a substantial miscarriage of justice – but a fundamental obstacle in the way of any such purported appeal on matters of fact is that the applicant exhausted such appeal rights as he had in this Court when he brought his appeal to the District Court. Any appeal instead to the Supreme Court from the Local Court would have been governed by Pt 5 of the Crimes (Local Courts Appeal and Review) Act 2001. It would have required, insofar as any question of fact is concerned, leave of the Supreme Court under s53 of that Act. Instead, the applicant chose to appeal as of right to the District Court.

6 The respondent takes issue with all of these contentions and essentially submits:

(b) would have no merit in any event.
SALIENT FACTS

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

El-Massry

Periodic payments in cash to Mona Maks by Hanna. Recorded in accounting book.

El-Massry

Migration Act

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

Penalty: Imprisonment for 2 years.

284 Restriction on self-advertising of the giving of immigration assistance

Penalty: Imprisonment for 2 years.

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:

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

“Advertisement in the newspaper El Massry

Thursday 30 September 1999

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

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.

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:

(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

Actions

Download as PDF Download as Word Document

Citations

Hanna v Department of Immigration Multicultural and Indigenous Affairs [2004] NSWCA 275

Most Recent Citation

Campbelltown City Council v Vegan [2004] NSWSC 1129

Cases Citing This Decision

14

Campbelltown City Council v Vegan [2006] NSWCA 284

Hanna v Commonwealth Director of Public Prosecutions [2016] NSWSC 325

Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liq) [2013] NSWSC 365

Cases Cited

4

Statutory Material Cited

6

Fox v Percy [2003] HCA 22

New South Wales Bar Association v Stevens [2003] NSWCA 95

CITATION:	Hanna v DIMIA [2004] NSWCA 275
HEARING DATE(S):	13 May 2004
JUDGMENT DATE:	11 August 2004
JUDGMENT OF:	Santow JA at 1; Bryson JA at 40; McClellan AJA at 41
DECISION:	Summons dismissed with costs.
CATCHWORDS:	ADMINISTRATIVE LAW - Applicant was a registered migration agent between 9 June 1994 to 9 June 1999 - applicant had advertisements in El-Massry continuously since 1997 - cheques dishonoured - registration as migration agent lapses - charges of advertising when not registered migration agent - applicant seeks by summons judicial review to set aside, stay permanently or otherwise quash or dismiss conviction made in the Local Court, together with decision of District Court declining to set aside conviction on appeal - relief sought pursuant to s69 Supreme Court Act, 1970 - whether inconsistency of prior acquittal of charge under s283 Migration Act 1958 and conviction under charge pursuant to s284 of that Act, was an affront to logic and commonsense so that conviction should be quashed - appeal as of right to District Court - whether application incompetent and would have no merit in any event - jurisdictional error or error of law on the face of the record.
LEGISLATION CITED:	Crimes (Local Courts Appeal and Review) Act 2001 Pt 5; s53 Criminal Appeal Act 1912 s5B Justices Act Pt 5A; s120 Migration Act 1958 s283; s284 Supreme Court Act, 1970 s69 Supreme Court Rules Pt 40 r1; Pt 54 r2
CASES CITED:	Australian & Investment Commission v Farley (2001) 51 NSWLR 494 Craig v South Australia (1995) 184 CLR 163 Fox v Percy (2003) 197 ALR 201 MacKenzie (1996) 90 A Crim R 468
PARTIES :	Fayez Philippe HANNA (Applicant) DEPARTMENT OF IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS (DIMIA) (Respondent)
FILE NUMBER(S):	CA 41212/03
COUNSEL:	Applicant (in person) G FARMER (Respondent)
SOLICITORS:	Commonwealth Director of Public Prosecutions (Respondent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):
LOWER COURT JUDICIAL OFFICER :	Walmsley DCJ