Tsang Chi Ming v Uvanna Pty Ltd t/as North West Immigration Services

[1996] FCA 859

CATCHWORDS

TRADE PRACTICES - Consumer Protection - respondent migration consultant engaged to obtain permanent residency status for applicants under Employer Nomination Scheme - certain representations made by officers of respondent as to guaranteed success of applications or refund of fees paid - whether such representations constituted misleading and deceptive conduct under s52 of the Trade Practices Act 1974 (Cth) - whether principal of respondent firm a person knowingly concerned in a contravention of the Trade Practices Act under s75B and therefore personally liable in damages under s79.

CONTRACT - terms of contract included guarantee of success or refund of fees paid - whether failure of applications constituted breach of contract or required refund under terms of contract.

EVIDENCE - Hearsay - conversations between applicants and principal of respondent firm conducted through respondent's employee as interpreter - whether applicants' evidence relating to such conversations inadmissible hearsay under s59(1) of the Evidence Act 1995 (Cth) - discussion of position at common law - whether proof of accuracy of translation required - whether interpreter can be described as "narrator" or "agent" - significant that objection raised by respondent when interpreter employee and agent of the respondent firm - if such evidence was "first-hand" hearsay whether admissible under ss63(2) or 64(2) where interpreter unavailable etc - consideration of notice required by s67(1) - when such notice requirement may be dispensed with by the Court.

Evidence Act 1995 (Cth); ss59(1), 63(2), 64(2) and 67(1).
Trade Practices Act 1974 (Cth); ss51AB, 51A, 52, 74(2), 75B and 79.
Fair Trading Act 1987 (NSW); ss42, 43 and 61.
Contracts Review Act 1980 (NSW)
Industrial Relations Act 1991 (NSW); ss713 and 717.
Migration Amendment Act (No 3) 1992 (Cth) (No 85 of 1992); ss5 and 114F(1).
Migration Regulations

Reid v Hoskins (1855) 119 ER 653; discussed and applied.
R v Lai Chi [1947] ST. R. QD. 154; discussed.
Commonwealth v Vose [1892] 32 NE 355; referred to.
R v Korwin-Drozynski [1963] QD. R. 362; referred to.
Gaio v The Queen (1960) 104 CLR 419; discussed and applied.
Carr v McDonald's Australia Limited (Unreported, 16 February 1994, Burchett J); applied.

TSANG CHI MING & ORS v UVANNA PTY LTD (T/A NORTH WEST IMMIGRATION SERVICES) & ANOR

NG505 of 1994

HILL J
SYDNEY
26 SEPTEMBER 1996

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
NEW SOUTH WALES DISTRICT REGISTRY  )     No NG 505 of 1994
  )
GENERAL DIVISION                  )

BETWEEN:TSANG CHI MING

KUANG OU ZHI

FENG MIN

SHEN GU HAI

YE XIAO DONG

WEN MING WANG

XU SHI FANG

WEI QUO QING

ZHANG LIN XING

ZHANG WEI QING

YANG BI HUI

LIANG YAO HAN

IP SHING OP

XIE XIAO JIA

WEI SHU QIAN

LIN QIANG

CHU LAI WAH

GU WEI KANG

HUANG SHU JUN

Applicants

AND:UVANNA PTY LTD (T/A NORTH WEST IMMIGRATION SERVICES)

First Respondent

LESLIE WILLIAM ALEXANDER

Second Respondent

CORAM:    HILL J
PLACE:    SYDNEY
DATED:    26 SEPTEMBER 1996

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. Within seven (7) days of the publication of these reasons, the applicants to bring in short minutes of order to reflect these reasons.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
NEW SOUTH WALES DISTRICT REGISTRY  )     No NG 505 of 1994
  )
GENERAL DIVISION                  )

BETWEEN:TSANG CHI MING

KUANG OU ZHI

FENG MIN

SHEN GU HAI

YE XIAO DONG

WEN MING WANG

XU SHI FANG

WEI QUO QING

ZHANG LIN XING

ZHANG WEI QING

YANG BI HUI

LIANG YAO HAN

IP SHING OP

XIE XIAO JIA

WEI SHU QIAN

LIN QIANG

CHU LAI WAH

GU WEI KANG

HUANG SHU JUN

Applicants

AND:UVANNA PTY LTD (T/A NORTH WEST IMMIGRATION SERVICES)

First Respondent

LESLIE WILLIAM ALEXANDER

Second Respondent

CORAM:    HILL J
PLACE:    SYDNEY
DATED:    26 SEPTEMBER 1996

REASONS FOR JUDGMENT

INTRODUCTION: THE HISTORY OF THE PROCEEDINGS
         It is hard to imagine a person more vulnerable than one who has left his or her own country and gone to another in the hope of residing there permanently.  But there are some who would seek to take advantage of that vulnerability for their own profit.  The respondents are alleged to be such persons.

All but three of the applicants with which the present cases are concerned, was a national of the Chinese People's Republic.  Each of them had found their way to Australia.  The exceptions were citizens of Hong Kong.  Each of them wished to reside permanently here.  Each of them, however, in his or her own way came within the clutches of the second respondent, Leslie William Alexander ("Mr Alexander"), typically as a result of having seen an advertisement placed in Chinese language publications.  The first respondent, Uvanna Pty Ltd ("Uvanna"), carried on business under a registered business name, North West Immigration Services.  So far as appears, no-one associated with Uvanna, and that includes Mr Alexander, had any special qualification to perform the services of a migration agent.  Legislation requiring registration of migration agents did not reach Mr Alexander who was exempt from it under a "grandfather" clause.

Each of the applicants (with the exception of Lin Qiang), as a result of negotiations with Mr Alexander, entered into a contract with Uvanna under which, for quite large fees (typically $20,000 or more), Uvanna agreed to act as a migration agent to secure permanent resident status to the applicants.  As will ultimately be seen, Uvanna often did nothing at all in the way of assisting the applicants, often would not have been in a position to assist the applicants because the applicant did not satisfy the relevant criteria
for permanent residency at the time, guaranteed results or money back (at least in certain circumstances), but refused when pressed so to do and, it must be said, took advantage of the vulnerability of the applicants to demand fees many times greater than were charged by at least a firm of solicitors practising in the field.

The proceeding number NG505 of 1994 commenced as an application brought by Tsang Chi Ming and Ou Zhi Kuang in their own right and as representative parties against the first and second respondents.  The parties said to be represented were initially identified merely by reference to a class of persons who entered into written contracts with Uvanna between 5 March 1992 and 1994, in terms similar to those entered into between Tsang Chi Ming or Ou Zhi Kuang on the one part and Uvanna on the other.  Subsequently, a schedule of names of persons represented was prepared and the proceedings treated as representative proceedings brought on behalf of the initial applicants and other persons whose names appeared in the schedule.

In the meantime, separate proceedings were commenced by Huang Shu Jun against the first and second respondents (NG659 of 1994).  An order was made that this separate proceeding be consolidated with the representative proceedings.

By December 1995 it had become apparent that it was inappropriate for the proceedings to continue as representative proceedings and orders were accordingly made by Lockhart J on 7 December 1995 that the proceedings no longer continue under Part IVA of the Federal Court of Australia Act 1976 (Cth) as representative proceedings, but continue as if proceedings commenced by eighteen separate applicants, being the applicants whose names appeared on the schedule, together with Huang Shu Jun. Thus the situation as at the date of this judgment is that there are before the Court applications by nineteen separate applicants against the first and second respondents for the recovery of the moneys paid by the applicants to Uvanna in connection with applications for permanent residency made by each of the applicants or, in the alternative, damages in the same amount against Uvanna and Mr Alexander.

Mr Alexander was the employee of Uvanna with whom all but one of the applicants dealt.  He does not appear to have been a shareholder or director of Uvanna, although in accordance with information extracted from the company's records, Mrs Alexander was a director of Uvanna.

No formal pleadings were ever filed by the applicants or the respondents. No doubt it was for this reason that directions were given for the filing of a statement of facts, issues and contentions, so that the basis of the applicants' case could be revealed to the respondents. From these documents as filed, it is clear that the case against Uvanna is put essentially by reference to breach of contract or damage sustained as a result of misleading and deceptive conduct engaged in by Uvanna in breach of ss52 and 51AB of the Trade Practices Act 1974 (Cth). Reliance is also placed on s 51A of the Trade Practices Act, provisions of the Fair Trading Act 1987 (NSW) and, as well, to the Contracts Review Act 1980 (NSW).

The case against Mr Alexander relies primarily upon s 75B of the Trade Practices Act in conjunction with s 52, as well as upon ss 42, 43 and 61 of the Fair Trading Act.

Finally, it is submitted that Uvanna supplied services to each of the applicants enlivening an implied warranty contained in s 74(2) of the Trade Practices Act, that the services provided by Uvanna would be reasonably fit for the purpose they were intended to achieve.

There are separate allegations of breach of fiduciary duty on the part of Uvanna and relief under s 7 in Schedule 1(b) of the Contracts Review Act 1980 (NSW).

When the matter came on for hearing almost two years after it had commenced, an application was made by the respondents to adjourn it.  That application, which was rejected, was based in part on an application for legal aid made shortly before the time the hearing commenced, when a previous application had been rejected at least a year before.  It was not as if the respondents were caught by surprise by the evidence that was to be adduced.  Most of it had been filed at least one year before the hearing, although there was some supplementary evidence filed a month before the hearing was to commence.  However, in respect of that evidence, leave had already been given by Lockhart J to the applicants to rely upon it at the trial.  The respondents were aware that a consequence of adjournment would be to delay the hearing by at least another six months.

THE OBJECTION TO EVIDENCE OF INTERPRETED CONVERSATIONS
         When the trial commenced and the affidavits of the applicants were sought to be read, counsel for the respondents objected to evidence of conversations deposed to by each of the applicants, the conversations being conversations between Mr Alexander and a particular applicant through the medium of an interpreter, a Ms Gibbon.  After hearing argument, I indicated that I would disallow the objection and, unless an application was to be made for leave to appeal, would deliver reasons when delivering the ultimate judgment.  That appears then to have been taken as an invitation on the part of the respondents to seek leave to appeal.  Accordingly, a Full Court was convened for the next day of hearing to deal with the leave to appeal and, subject to the outcome, the case was then scheduled to commence the afternoon after the appeal Court had determined the leave to appeal and/or appeal, unless a stay was otherwise granted.

That evening I was advised by counsel for the respondents that no application would be made for leave to appeal at this stage.  Subsequently when the hearing began on the next working day, I was advised by counsel that his instructions had been withdrawn, as had those of his instructing solicitor, and that thereafter the proceedings would proceed uncontested.  It was said that the respondents were conserving their funds so that they could ultimately appeal without the necessity of leave after the judgment had been delivered.  In the result, the case proceeded without the assistance of counsel for the respondents.  The respondents chose to adduce no evidence and make no submissions.

In the light of oral evidence thereafter given that most of the applicants spoke English and understood what Mr Alexander was saying to them through the medium of Ms Gibbon but without the necessity for her interpretation and that they were aware that her interpretation was correct, the objection based upon the giving of conversations through an interpreter became largely irrelevant.  However, as I did rule upon it, it is incumbent upon me now to give reasons for that ruling.

To explain how the question arises, it is convenient to reproduce paras 10 and 37 of the affidavit of Yang Bi Hui of 24 August 1994 as illustrative of the matter objected to.  In para 10 Ms Yang said:

"He said: `I can find you an employer who will sponsor your permanent residency under the employer nominee scheme.'

He said: `It will take six (6) months for you to get permanent residency.'

I said: `How much will it cost me for you to do the application for employer nomination?'

He said: `It's not cheap, eighteen thousand Australian dollars ($18,000), you will have to pay 50% percent of that when you fill in the application and pay the other nine thousand dollars ($9,000) when Immigration approve your application.'

I said: `Why it's so expensive?'

He said: `there is a lot to do and fees to pay.  Do not worry if I take your case we will succeed.  We also succeed once we take a case.  If we do not succeed you will get your money back.'

I said: `It is expensive, I will talk to my husband.'"

In para 37 Ms Yang said:

"Where I have recorded conversations with Mr Alexander the conversation were translated by Miss Gung and I understood those translations to be the statements which Mr Alexander was making to me.  When I spoke to Miss Gung it was usually in Cantonese."

The reference to Miss Gung is a reference to Ms Gibbon (née Gung) who, at all relevant times, was an employee of Uvanna and qualified to translate from either Mandarin or Cantonese into English. It is part of the case for the applicants that Mr Alexander made to Ms Yang a representation that if her application for residency status was unsuccessful moneys paid by her would be refunded, and that this was conduct which was misleading and deceptive under s 52 (with or without s 51A) of the Trade Practices Act.

Counsel for Mr Alexander objected to the reception of this evidence of the conversation between Ms Yang and Mr Alexander, unless Ms Gibbon was called. It was submitted that the evidence was inadmissible hearsay which fell to be rejected under s 59(1) of the Evidence Act 1995 (Cth). For the applicants, it was submitted that the evidence did not fall within s 59(1) but that in so far as it did, Ms Gibbon was not available and that there would be undue expense or delay in obtaining her to give evidence so that it would not be reasonably practicable to call her. In light of the fact that no notice had been given under s 67(1) of the Evidence Act, application was made to me nunc pro tunc under s 67(4) to direct that s 64(2) of the Evidence Act apply despite the failure on the part of the applicants to give notice.

I was referred to a number of cases concerned with the acceptance or rejection of evidence taken through interpreters.  These cases predate the 1995 Evidence Act and are thus not determinative of the objection. To the extent that they support or detract from the view that evidence of conversations through a translator is hearsay evidence in the general law, they do, however, assist in interpreting s 59(1). While that sub-section was obviously intended to replace the common law rules with a new code governing hearsay evidence as defined, it was clearly not intended to widen the area of inadmissibility.

The common law position was considered over a hundred years ago in the case of Reid v Hoskins (1855) 5 EL & BL 729; 119 ER 653. In that case evidence was sought to be adduced of a conversation between the defendant's agent ("M") and the master of a vessel through an interpreter who was brought to the scene of the conversation by the master and who professed to interpret.  Despite a lack of authority, the Court was in no doubt that the evidence of the conversation was admissible.  Lord Campbell CJ (at 741; ER 657-2) said:

"... commerce could not go on if such evidence were excluded.  Although there is no authority, so far as I recollect, on the point, common sense tells us that, where the master was referred to a person who could not speak English, that person had authority to bring with him some one through whom he might communicate with the master; and, that being done, all that was said was said by an agent.  It would be monstrous to hold that the interpreter must always be called; and that, without bringing him to swear that he had
interpreted truly, no effect can be given to what has passed."

Lord Coleridge was of the same view.  His Lordship said (at 741; ER 657-8):

"It is quite true that we have no direct evidence that the interpreter interpreted faithfully; but the admissibility of the evidence rests on general principles of common sense.  The agent has authority to communicate with the master: and, when the agent brings with him an interpreter, he must be taken to indicate to the master that the master is to give credit to the interpreter."

Whiteman J said (at 741-2; ER 658):

"I am disposed to agree in the admissibility of this evidence, on the ground upon which it is put, which is in fact this: that, when a communication is to take place in a foreign country, and both parties know that an interpreter will be wanted, it must be taken that both parties agree upon the interpreter who professes to interpret.  It would often be impossible to obtain the evidence of the interpreter himself."

It will be noted that there was no suggestion in the judgment that the evidence was inadmissible because it was hearsay.

A line of authority thereafter developed, of which an example is R v Lau Chi [1947] ST. R. QD. 154, based upon, inter alia, decisions of the Massachusetts Supreme Judicial Court.  The issue in Lau Chi was the admissibility of a conversation between the accused and a policeman in which the accused had made an admission.  The evidence was admitted because there was evidence that the accused was content to accept the interpreter as his agent to enable the conversation to proceed.  Reference in the course of the judgment is made to the decision of Knowlton J in Commonwealth v Vose [1892] 32 NE 355 (Massachusetts SJC):

"When two persons who speak different languages, and who cannot understand each other, converse through an interpreter, they adopt the mode of communication in which they assume that the interpreter is trustworthy, and which makes his language presumptively their own.  Each acts upon the theory that the interpretation is correct.  Each impliedly agrees that his language may be received through the interpreter.  If nothing appears to show that their respective relations to the interpreter differ, they may be said to constitute him their joint agent do for both that in which they have a joint interest.  They wish to communicate with each other, they choose a mode of communication, they enter into conversation, and the words of the interpreter, which are their necessary medium of communication, are adopted by both, and made a part of their conversation as much as those which fall from their own lips.  They cannot complain if the language of the interpreter is taken as their own by anyone who is interested in the conversation.  Interpretation under such circumstances is prima facie to be deemed correct.  How far either would be bound by it if the interpreter should prove false may depend on a variety of circumstances which it is unnecessary to discuss.  In a case like the present, we are of opinion that either
party, or a third party, who hears the conversation, may testify to it as he understands it, although for his understanding of what was said by one of the parties he is dependant on the interpretation, which was a part of the conversation.  The fact that a conversation was had through an interpreter affects the weight, but not the competency, of the evidence."

Lau Chi was subsequently followed by the Queensland Court of Appeal in R v Korwin-Drozynski [1963] QD. R. 362, a decision in which Gibbs J, as his Honour then was, participated. In that case the interpreter had been brought to the police station by the accused and it was held that on this basis the accused could not complain that the evidence of the translated conversation was wrongly admitted against him.

In between the two Queensland decisions, fell to be decided in the High Court the case of Gaio v The Queen (1960) 104 CLR 419. In that case the question was whether evidence of a conversation between the accused and a parole office through an interpreter was admissible unless the interpreter was called. In actual fact, the interpreter was called and an objection was also taken to the evidence of the interpreter.

The objection to the evidence of the conversation by a participant to it was based upon the ground that the evidence was hearsay.  It was said that, because the participant in the conversation could not understand what was said by the other party to the conversation in the other
language, he could do no more than prove that the translator had told him that the appellant had made the statements which amounted to a confession.  Fullagar J accepted that, if on a true analysis the evidence amounted to no more than that the translator had told the constable of the confession made by the accused, then the confession would not have been proved by admissible evidence.  But his Honour saw the evidence as going beyond that and proving a confession made directly by the accused to the patrol officer.

Reference was made in the course of the judgment to Lau Chi and the comments of Knowlton J in Vose's case.  Of this evidence, Fullagar J said (at 428):

"I think, with respect, that this involves yet another misuse of that much misused word `agent'.  There may be cases in which it is proper to infer that the parties have agreed to accept the translations of the interpreter as prima facie correct, and it may be that in such cases it is sufficient for either of them to give evidence of the conversation without calling the interpreter.  But it seems to me to be out of the question to draw any such inference in the present case.  I doubt if any such inference could properly be drawn in any case where the parties to the conversation are a police officer and a person charged, or about to be charged, with a crime.  Here, where the person charged, or about to be charged, with a crime was an uneducated native of Papua, it would be utterly unreal to regard him as consenting or agreeing to anything in relation to his conversation with Smith."

His Honour, however, rejected the argument that the evidence of the patrol officer was hearsay.  It rested, his Honour thought, on an artificial and false view of the total situation.  His Honour said (at 429):

"The conception on which it rests is that, where A and B, having no common language, converse through C, who is bilingual, two conversations are really taking place, the one between A and C and the other between B and C.  According to this conception, A can only depose to the conversation between himself and C, because he does not understand what passes between B and C.  And B, of course, is in the same position.  All that either A or B can do is to narrate exactly what occurs, and A is not qualified to depose otherwise than after this fashion: `I said so and so to C.  C then said something to B: I do not know what.  B then said something to C; I do not know what.  C then said so and so to me.'  This is not evidence of anything that was said by B, and the effect of it cannot, it is said, be enlarged or changed by the calling of C as a witness to say merely in general terms that he was translating what A said into B's language and what B said into A's language.  C is the only man who knows, and therefore the only man who can depose to, what was said by both A and B.

As I have said, I think that any such analysis as this is unreal and unsound.  What is in truth and in substance taking place is a single conversation between A and B - and none the less because a means of communication has to be used which would be unnecessary if they had a common language.  If they had a common language, they could and would communicate directly with one another by word of mouth.  As things are, some means is necessary by which what A says may be made intelligible to B and what B says may be made intelligible to A.  C supplies that means, but he does no more than supply that means.  C is not in any real sense a party
to the conversation.  He contributes nothing of his own that is material.  He is merely the mouthpiece alternately of A and of B.  Subject to one condition, therefore, there is no reason why A should not give evidence of the conversation as a conversation conducted wholly in his own language, or why B should not give evidence of it as a conversation conducted wholly in his own language.  The one condition is that the accuracy of the means of communication employed should be verified.  And prima facie sufficient verification is supplied if C gives evidence that he translated correctly from A's language into B's and from B's language into A's.  C is, of course, subject to cross-examination, by which the adequacy of his knowledge of either or both of the relevant languages may be tested."

Dixon CJ, while agreeing with Fullagar J, added (at 421) the following comment which makes it clear that his Honour rejected the view that evidence of the conversation by a participant (and evidence of the translator) was hearsay:

"I think that the translation word by word or sentence by sentence by the interpreter is not an ex post facto narrative statement of an event that has passed within the rule against the admissibility of hearsay but is an integral part of one transaction consisting of communication through the interpreter.  It is therefore enough if it is proved that what he did was to interpret faithfully.  The version as spoken and heard in one language or the other - in the present case English - can then be given in evidence."

The reference to the evidence being "an integral part of one transaction" may reflect the view that where a conversation is interpreted, the evidence of a party to it of the words spoken, is part of the res gestae of the conversation and thus either outside the hearsay rule, or if not at least within an exception to it.

McTiernan J dissented.  His Honour was of the view that the evidence was inadmissible hearsay.  Both Kitto and Menzies JJ rejected the argument that the evidence was hearsay.  The translator was not to be seen as a narrator of what had been said to him but, to use the language of Kitto J (at 430):

"... strictly as a translator, making the appellant's words intelligible to Smith as they were uttered.  This means that the role played by Arthur between the two persons, the want of a common language preventing them from being understood by one another except through a bilingual transmitter, was not different in principle from that which in another case an electrical instrument might fulfil in overcoming the barrier of distance."

Menzies J used the analogy of a translating machine.  In rejecting the submission that the evidence was inadmissible hearsay, his Honour said (at 432-3):

"He [ie the interpreter, Arthur] was not recounting something that had happened.  Arthur was the means whereby Smith spoke to the appellant and the appellant spoke to Smith and all that was necessary in these circumstances was to prove that the means of communication was accurate. ...
Arthur, like such a machine, was merely a translator. ...

Evidence of a conversation conducted through an interpreter seems to me different in character from one person giving evidence of what another said that he said or heard.  In the former case, the evidence is of a conversation by a person present thereat; in the latter the evidence is secondary evidence depending for its weight upon the reliability of a third person who is not before the Court."

However, in his judgment Menzies J refers to the agency cases and makes it clear that in his Honour's view the evidence in Gaio would not be admissible unless the interpreter were to give evidence.  But that can not have been because of some hearsay objection which has already been dismissed.  It can only be because absent agency evidence of the conversation could only proceed if there was evidence to show the translation was accurate, and in a criminal case that accuracy would need to be proved beyond reasonable doubt.

Gaio was followed by the New South Wales Court of Criminal Appeal in R v Salameh [1985] 4 NSWLR 369 so as to permit the admission into evidence of a record of interview conducted with an illiterate person in the presence of a solicitor who had read it out aloud to him before both had signed it.

In summary, the common law rule can be stated as follows.  Evidence by one party to a conversation which was
carried on through the medium of an interpreter is admissible and not to be regarded as hearsay, for it is an inadequate analysis of that evidence to say that it is evidence of what another person, the translator, said that he or she had heard from the other party to the conversation.  The translator is not a narrator but the means whereby one party to the conversation communicates with the other and the translation is an integral part of the transaction consisting of that communication.  Proof of the accuracy of the translation will, however, be necessary.  That proof will usually be by evidence given by the translator but, at least in a civil case, need only be on the balance of probabilities and can arise by inference.  Proof of the accuracy of the translation would not, however, be necessary where the circumstances are such that either the parties to the litigation, or at least the person against whom the evidence is tendered, constituted the interpreter as agent to interpret the conversation between them.

Thus, as against Uvanna, the evidence would be admissible on the grounds that Ms Gibbon, as an employee of that company whose job it was to translate was, on any view of the matter, agent for her employer.  Indeed, counsel for the respondents conceded that the evidence was admissible against Uvanna.  But it is said there is nothing in the evidence to suggest that Ms Gibbon was agent for Mr Alexander.  I share, with respect, the view evident from some of the judgments in Gaio that the word "agent" is the wrong word to use in the present context.  Suffice it to say that it seems to me that where a person, such as Mr Alexander, utilises the services of a person known to him to be a competent translator and indeed offers those services to another person and the parties thereafter accept that that person is translating their conversation, then the evidence in question is admissible against the person who put forward the translator on the basis that he, at least, has agreed that his language may be received through the interpreter.  It may have been different in the present case if the evidence were tendered not against Mr Alexander but against one of the applicants.

The question is whether the provisions of the Evidence Act change the common law rule so that evidence of conversations of the kind with which we are here concerned, is excluded from evidence. Section 59(1):

"Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation."

The word "representation" is defined in the dictionary to the Act as including:

"(a)an express of implied representation (whether oral or in writing; or

(b)a representation to be inferred from conduct; or

(c)a representation not intended by its maker to be communicated to or seen by another person; or

(d)a representation that for any reason is not communicated."

The legislation distinguishes between first-hand hearsay, that is to say, a reference to a previous representation made by a person who had personal knowledge of an asserted fact on the one hand, and more remote forms of hearsay on the other.  It is only first-hand hearsay which can fall within the exceptions contained in the Act.

The argument that evidence of a conversation through a translator is evidence of a representation made by the translator to prove the existence of a fact, namely that words were spoken by another party to the conversation in another language, suffers the same difficulty as is suffered by the common law argument that such evidence involves hearsay in the ordinary sense. The translator does not act as a narrator but merely as a person who makes the language of one party intelligible to another as uttered. The evidence is not put forward as evidence of a representation made by the translator as to what was said by a party to the conversation, but as direct evidence of the conversation itself through the medium of the translation. The relevant fact to be proved in the present case is not merely whether particular words were uttered by Mr Alexander, but rather whether there was a communication of language between Mr Alexander and the relevant applicant. Provided the process of translation was accurate, that communication is proven and goes beyond the evidence of a representation to which s 59(1) refers. Proof of a translation will be shown by calling the translator. But that is not the exclusive means of proof. An alternative means of proving accuracy of the translation is to show that the interpreter was put forward by the person against whom the evidence is tendered as the person whom that person accepts as a translator and is admitted to be a qualified translator. That is, of course, the present case.

I am accordingly of the view that s 59(1) of the Evidence Act does not exclude the evidence of the conversations being admitted.

If I should be wrong in holding that s 59(1) has no application, I turn to consider whether I should direct, under s 67(4) of the Evidence Act, either that subss 63(2) or 64(2) apply, despite the failure on the part of the applicants to give the notice required under s 67(1) of the Evidence Act.

As an exception to the hearsay rule, hearsay evidence is permitted to be given either where the person who made the relevant representation is not available to give evidence about the asserted fact or where, while that person is available, the circumstances are such that it would cause undue expense or undue delay or would not be reasonably practicable to call the person.

Section 67(1) requires, in effect, that if ss 63 or 64 are to be availed of, then the parties seeking to avail of them are to give reasonable notice in writing to the other parties of the intention to adduce the evidence. The Rules of the Court provide for the giving of the relevant notice. It is common ground between the parties in the present case that no notice was given. It is also common ground between the parties that it has been known for at least a year that the present evidence was intended to be relied upon.

The solicitor for the applicants gave evidence from which it emerged that he had been aware, since February of this year at least, that an objection was to be taken to the admissibility of the evidence of the translated conversations.  At that stage he took no steps to do anything about it because, he said, it was not an issue he was looking at at that stage.  The first time he had made any attempts to locate Ms Gibbon was approximately two weeks before the hearing.  He then attempted to locate her through the telephone book, both under her maiden and married names and called directory inquiries, but was unable to locate her.

This evidence would not go so far as to permit me to conclude that Ms Gibbon was not available to give evidence about her role in the conversations.  It is, however, sufficient to enable me to conclude that further attempts to locate her would result in expense and undue delay or that at the least, at this stage, it was not reasonably practicable to call her.

The scheme of the Evidence Act is to require notice to be given if the maker of the representation is not to give direct evidence.  That notice, under s 67, has to be "reasonable".  The theory presumably is to ensure that if one party does not propose to call the maker of the representation the other party at least may have the chance to do so.  However, the Court is given power to direct that either or both of subss 63(2) and 64(2) apply, despite the failure to give notice.  No criteria are laid down by the Evidence Act upon which the Court is to proceed.  However, and without attempting to in any way define appropriate criteria exclusively, matters relevant to the Court in exercising the discretion, which would need to be exercised judicially, would include the prejudice to the parties by dispensing with the requirement to give notice; as well as, for example, in a case involving s 64, matters of expense and delay which might point in favour of permitting the evidence to be adduced.

Although the notice has not been given, I do not think the case is one of which it can be said that there has been any real prejudice to the respondents.  Ms Gibbon was an employee of the respondents.  If anyone knew where Ms Gibbon was it might be inferred that the respondents would.  Mr Alexander does not suggest that Ms Gibbon was not an accurate translator.  Quite to the contrary.  On his own evidence she was a most competent translator and used by him on all occasions in discussions with people who spoke Mandarin or Cantonese.  It was he who put her forward.  If he challenged the conversations it was open to him to go into the witness box to give evidence of the conversations.  It was also open to him to call Ms Gibbon.  As it turns out he chose not to do either.

In the circumstances I am of the view that there is no real prejudice to the respondents in waiving the notice requirement and directing, in accordance with s 67(4), that the provisions of s 64(2) apply despite the failure of the applicants to give notice to the respondents.

It follows that I would receive the evidence of the conversations and would reject the objection to the admissibility of that evidence.

I turn now to deal with the facts of the various cases.  Before doing so, it will be convenient to deal with two matters common to all applications, namely, the written agreement which Mr Alexander caused the applicants to sign and the relevant provisions of the Migration Law concerning employer sponsored migration.

THE WRITTEN AGREEMENTS
         In each of the nineteen cases, each applicant signed a form of contract with North West Immigration Services, proclaimed on the document to be immigration agents and consultants.  The contract was in English and was generally only translated in a very summary way.  The terms of the contract in each case were substantively the same, and minor variations between them in the expression of those terms do not affect the meaning of those terms.  However, in some cases there were minor amendments to the agreement which are important to mention, and I shall note these amendments when dealing with the facts of each individual application.  In some cases the knowledge of English of the applicants was scant.  That is a matter which I will discuss in respect of each individual applicant.

The general form of agreement read as follows:

"I/We [name of applicant and address] request and authorize North West Immigration Services to act on my/our behalf in respect of the application [eg for permanent residency] to Department of Immigration, Local Government and Ethnic Affairs to Australia.  It is agreed that fees will be A$[     ] inclusive of the
Government Fees, but exclusive of any future increases and charges imposed by the Australian Government.

Payment of the fees will be made as follows :

A$[     ] of Total Fee on signing of this Agreement;

A$[     ] To be paid immediately upon receipt of the Letter of Sponsorship [or visa] being approval from the Department of Immigration, Local Government & Ethnic Affairs in Australia.

Note:

(1)If North West Immigration Services fails to provide the service as agreed during the process, North West Immigration Services should follow up the case until the Visa is issued to me/us.  This does not apply if there is failure by me/us to meet the criteria of the department of Immigration, Local Government & Ethnic Affairs, for example:-

(a)MEDICAL AND HEALTH REQUIREMENTS

(b)SECURITY AND POLICE CLEARANCE

(c)I/WE WITHDRAW THE APPLICATION

(d)IF MY/OUR DOCUMENTS ARE FOUND TO BE UNTRUE, FAULSIFIED [sic] /FORGERIES OR IF IT IS DETERMINED THAT I/WE HAVE MADE ANY UNTRUE OR FALSE STATEMENT IN OUR APPLICATION OR DECLARATIONS.

(2)North West Immigration Services agrees to refund my/our money in full if the Company fails to provide the service to me/us as agreed other than as stated in Point 1 (a),(b),(c) & (d).

(3)Once instructions are received, monies paid will not be refunded under any circumstance unless otherwise agreed in writing or provided for elsewhere in this agreement.

I/We, the undersigned, acknowledged [sic] that I/We have been informed that, although North West Immigration Services, uses its best endeavours to apply to the Immigration Department successfully on my/our behalf, there can be no guarantee such application will be successful and I/we acknowledge that nothing said to me/us could be construed to mean that there is any such guarantee.

Underneath the signatures of the relevant applicant and the witness, there appears a date followed by the following note:

"Note:This agreement has been explained fully to the above client and any translation fully and completely understood."

The agreement is somewhat confusing in its terms.  Particularly there is room for inconsistency between cll 2 and 3, but the proper interpretation is, in my view, that North West Immigration agreed to refund in full the money paid by an applicant where it has failed to obtain permanent residency for an applicant, except in a case falling within paras 1(a) to (d).  Particularly, in my view, any ambiguity in the agreement should be construed against the person who proffered it, namely, North West Immigration Services: cf Carr v McDonald's Australia Limited (unreported, 16 February 1994) per Burchett J.

When the required up front amount was paid to Uvanna, a receipt was given to the payer.  That receipt, after indicating the amount paid, said:

"(1)Once instructions are received fees paid will not be refunded unless indicated in the agreement.

(2)No warranty or guarantee of success is given or implied in respect of this matter."

The receipt was not translated and I would be slow to fix the applicants with knowledge of what appeared on it.  But more significantly, it was handed over after the contract had been formed between each applicant and Uvanna.  In these circumstances, nothing in the receipt should be taken as varying the contract.  It goes without saying that a statement by Uvanna or Mr Alexander that no warranty or guarantee of success was given would not change the fact that such a guarantee was actually given verbally by Mr Alexander.

THE EMPLOYER SPONSORED MIGRATION SCHEME
         Common to each of the factual situations with which the present proceedings are concerned is the fact that Mr Alexander proffered to each of the applicants as the solution to their migration problem, the fact that he could obtain for them employer nomination status.

The relevant regulations concerning the scheme were varied in 1993 and thus two periods need to be considered: that prior to February 1993, and that after.

Throughout the whole period with which the present cases are concerned, the objective of the Employer Nomination Scheme was to enable Australian employers to recruit highly skilled workers, either from overseas or from persons temporarily in Australia, when the needs of the employers could not be satisfied from the Australian workforce.

The Australian Government published a pamphlet entitled "Procedures Advice Manual" in July 1992 dealing with the Employer Nomination Scheme as then in force.  That publication made it clear that there were two distinct parts of the process of employer nomination.  The first involved the assessment by the Department of Immigration and Ethnic Affairs ("the Department") of the nomination lodged by an employer.  The second stage involved the assessment of the nominee's eligibility for a permanent entry visa or permanent entry permit, as the case may be depending on whether the nominee was or was not in Australia.

Prior to February 1993, reg 166A of the Migration Regulations set out the relevant criteria for employer nomination.  These were:

"(a)the employer nomination must be made by an employer in respect of a need for a paid employee in a business;

(i)located in Australia; and

(iii)[sic] operated by that employer;

(b)the work to be performed requires the appointment of a highly skilled person; ...

(d)the Minister is satisfied that:

(i)the employer has made, and continues to make, adequate provision for training existing employees in work relevant to the business; or

(ii)the business is newly established - the employer is making adequate provision for future training of employees in work relevant to the business;

(e)the Minister is satisfied that:

(i)an Australian citizen or resident cannot be found to be suitable for the appointment; or

(ii)in the circumstances of the case - the employer should not be required to seek a suitable employee in Australia."

The expression "highly skilled person" was defined as meaning:

"... in relation to a proposed employment appointment, means a person who will have, in respect of work of the kind to be performed under that appointed:

(a)completed, over a period of at least 3 years, formal training or equivalent experience; and

(b)unless the approved appointment is exceptional - been employed for at least 3 years:

(i)after completing the training or experience referred to in paragraph (a); and

(ii)before making the application; and

(c)acquired competence assessed by the Minister to be at least average for a person to whom paragraphs (a) and (b) apply."

Regulation 51 prescribed additional criteria including the requirement of an actual nomination by an employer and maximum age limit of the nominee of 55 years, except in exceptional circumstances.

As already suggested, mere fulfilment of the nomination requirements was not adequate.  In addition, to obtain a Class 823 or Class 805 entry permit (the relevant permits), the applicant had to have entered Australia as a temporary resident for the purpose of engaging in employment or as an overseas student, on or after 19 December 1990, who had completed a formal course of study at institutions of higher education as full fee paying students, or entered as working holiday makers.  That is to say, the person in question must have met one of the requirements of s 47(1) of the Migration Act and not be a prescribed non-citizen within the meaning of s 47 of the Act, nor ever have been a prescribed non-citizen nor the holder of a visitor visa or entry permit or an illegal entrant.  Thus s 47(1)(e) of the Migration Act (in force at the relevant time) provided:

"(1)A permanent entry permit shall not be granted to a non-citizen after entry into Australia unless one of the following paragraphs applies to the non-citizen:

...(e)  he or she:

(i)is the holder of a valid temporary entry permit;

(ii)is authorised to work in Australia; and

(iii)is not a prescribed non-citizen."

The expressions "prescribed non-citizen" and "non-citizen" are defined in s 47(7).

It may thus be said, in general terms, that an applicant could only succeed in obtaining permanent residency as an employer sponsored migrant if the person had entered Australia in the relevant capacity, was the holder of a valid temporary entry permit authorised to work and was not a prescribed non-citizen, had been nominated by an employer for an approved position and was a person who, within the definition, was highly skilled.

As will be seen, in the great majority of the cases the applicants never stood a hope of satisfying these criteria.  Some failed to qualify as holding a valid temporary entry permit being authorised to work or not being prescribed non-citizens.  Many would not have satisfied the requirement of being highly skilled in respect of any particular job.

After 1993 the relevant criteria of Schedule 2 were to be found in regs 7.10, and in parts 805 and 121 of Schedule 2 to the Migration Regulations.  Regulation 7.10 set out the requirements that had to be met by an employer nomination.  It confined the need that the work to be proposed required the appointment of "a highly skilled person".  It required there to be permanent full-time appointment.  The definition that that regulation of "highly skilled person" was in the following terms:

"`highly skilled person', in relation to a proposed employment appointment, means a person who has, in respect of work of the kind to be performed under that appointment:

(a)completed, over a period of at least 3 years, formal training or equivalent experience; and

(b)unless the approved appointment is exceptional - been employed for at least 3 years:

(i)after completing the training or experience referred to in paragraph (a); and

(ii)before making the application; and

(c)acquired competence assessed by the Minister to be at least average for a person to whom paragraphs (a) and (b) apply."

The criteria for a Class 805 entry permit were set out in Schedule 2 to the Migration (1993) Regulations.  They require the applicant not to be the holder of a visitor's visa or certain other visas, exclude most cases where the applicant is an illegal immigrant and extend to cases where the applicant had a student visa for certain full-time courses or was the holder of a working holiday visa as well or as a student from the People's Republic of China who entered Australia before 20 June 1989.  Additionally, the applicant was required to satisfy certain skill requirements directed at showing exceptional achievements.

Category 121 was concerned with the criteria to be satisfied where the application is made outside Australia.

The 1993 Regulations, it will be observed, did not substantially change the substance of the Employer Nomination Scheme.  In particular it was not intended to apply to every person seeking to stay in Australia.  It was available only in respect of a job involving a high degree of skill and in respect of an applicant who was highly skilled.

Two further matters might be mentioned here by way of completeness.  First, there was introduced, through the Migration Amendment Act (No 3) 1992 (No 85 of 1992), a system of registration of Migration Agents.  It thereupon became illegal for a person other than a registered agent to give "immigration assistance" (see s 114F(1)), except in accordance with nominated exceptions or to charge a fee for such "immigration assistance".

However, by reason of the transitional provisions of s 5 of the 1992 Act, these prohibitions did not apply to a person who, before that legislation, was holding himself or herself out as available to give immigration assistance effectively, unless the licensing authority directed that person to cease to hold himself or herself out as available to give immigration assistance.

The Migration Agents Regulations (No 292 of 1992) set out a code of conduct applicable to registered migration agents.  That code did not apply to Mr Alexander who was at all times unregistered.

The second matter to which reference should be made is the Industrial Relations Act 1991 (NSW) which, in ss 713 and 717, prohibits the charging of a fee (other than to an employer) to those seeking employment and requires registration of "employment agents".  Uvanna was so registered.  The applicants do not suggest Uvanna breached that legislation.

I turn now to consider and deal with each of the nineteen cases.

TSANG CHI MING
         Mr Tsang was a citizen of Hong Kong who arrived in Australia in January 1990, having been issued with a six months student visa.  He was later given dependent student visa extensions on the basis that his wife (a citizen of the People's Republic of China) was a student in Australia.  Mr Tsang had completed a three year full time course at Shenzhen University in Hotel Management and after graduation had been employed by Century Plaza Hotel in Shenzhen as a Reception Manager for 18 months.

In November 1993 Mr Tsang and his wife came to see Mr Alexander.  Mr Alexander asked for and received Mr Tsang's qualifications and asked Mr Tsang some questions about his work experience in China.  Mr Alexander indicated that he could arrange permanent residency for Mr Tsang under the Employer Nomination Scheme with a large hotel management company; and said that there was a 99% certainty that permanent residency would be granted.  The only 1% chance of failure, so Mr Alexander said, was if Mr Alexander or Ms Gibbon were to die.  Mr Alexander indicated the fee payable would be $A30,000 in respect of both Mr Tsang and his wife, $21,000 of which should be paid as a deposit.  Mr Alexander said:

"The employer nomination application will be successful, but even if it isn't we will refund the money you have paid."

Relying on these statements, Mr Tsang retained Uvanna, agreeing to pay a total of $30,000 with a deposit of $21,000.  Mr Tsang returned to meet Mr Alexander on 22 November 1993 with $5,000 in cash and agreed to pay a further $16,000 the next week.  At that time he was shown a copy of the contract by Ms Gibbon who, however, refused to let him take it away and have it checked by a solicitor.  She said that she would translate it into Chinese for him if he wished.  She then left Mr Tsang in the room alone with his wife for five minutes to look at the contract.  He signed it, and made the further payment of $16,000 on 1 December 1993.

The agreement as signed was an agreement in respect of both Mr Tsang and his wife.  Prior to meeting Mr Alexander, Mr Tsang's wife had lodged an application for refugee status.  Ms Gibbon assisted in translating a statement in connection with that application.  The application was, however, ultimately rejected.

At a meeting in April 1994 between Mr Tsang, his wife and Mr Alexander, Mr Alexander advised an appeal to the Refugee Review Tribunal, but the evidence does not suggest that Mr Alexander pursued that avenue, although he may have lodged an appeal on behalf of Mrs Tsang.

At the meeting in April 1994, Mr Tsang inquired as to what had happened to his employer sponsored nomination as four months had already passed.  Mr Alexander told him that the file was with the employer but that Mr Tsang could not meet the employer at the moment.  Mr Alexander advised Mrs Tsang to make an application for a Class 818 permit.

At a later interview, in June 1994, Mr Alexander indicated that the prospective employer was a large catering firm in Fairfield but still did not provide either the name or address of the employer.  In June Mr Tsang went to see an independent solicitor.

Files relating to each of the applicants were subpoenaed from the Department.  The files the Department produced pursuant to the subpoena were tendered.  No file at all was produced for Mr Tsang.  The inference is, in the absence of any evidence from Mr Alexander to the contrary, that Mr Alexander did absolutely nothing to obtain for Mr Tsang, assuming he was otherwise eligible, a nomination by an employer to secure approval of the employer or approval of Mr Tsang as nominee for the position if one existed.

I find that there was a breach of the term of the contract in writing, namely, that Uvanna would provide the agreed service to Mr Tsang. The contract provides, as I have held, for fees paid to be refunded in the event that Uvanna was unsuccessful, as has proved to be the case. Further, I find that there was a representation made by Mr Alexander that the application would be successful, which was an application as to future events. As no evidence has been adduced by Mr Alexander, he has not satisfied the burden of showing that at the time the representation was made it was not unreasonable. There is thus a breach of s 52 of the Trade Practices Act made out.

In the circumstances, therefore, whether the matter is put as a claim for a refund under the contract, a claim for breach of contract sounding in damages or a claim for damages based on s 52 of the Trade Practices Act, Mr Tsang is entitled to recover from Uvanna the sum of $21,000 paid by him.

As Mr Alexander was the person who made the representation and thus a person knowingly concerned in a contravention of the Trade Practices Act within the meaning of s 79 of that Act, I would, in accordance with s 82, order Mr Alexander to pay by way of damages to Mr Tsang, the sum of $21,000 as the damage suffered in contravention of the Trade Practices Act: see Enzed Holdings Limited v Wynthea Pty Ltd (1984) 4 FCR 450.

KUANG OU ZHI
         Mr Kuang was at relevant times a citizen of China.  At no relevant time could he read, write or speak English.  He had, between 1985 and 1989, worked in the restaurant industry, originally as a kitchen worker and later as a cook at the Chinese Food Department of the Seafood Restaurant of Game, Shajing, Shenzhen City from September 1987 to June 1989.  Between October 1987 and February 1988 he had attended and completed a five month part time course in cooking and from October 1988 to October 1989 a one year part time course in cooking, both at the Guandong Tourist Training Centre.  He was qualified in China as a second level and third level cook and licensed as such.  Between October 1989 and February 1990 he worked as the Assistant Manager of the lobby of the Holiday Inn Hotel in Guandong.

He arrived in Australia in 1990 on a student visa, holding a temporary entry permit valid for six months until 23 October 1990.  His student visa was extended until 6 October 1991.  He studied English for one year in a college in Sydney until early 1991.

In October 1990 he applied for refugee status and in June 1994 he was granted a protection entry permit pending his application for refugee status being determined.  Mr Kuang received restricted permission to work in Australia as a non-citizen without a valid temporary entry permit valid to June 1994 and in this time worked as a cook in a Chinese restaurant.

He first contacted Uvanna in October 1993.  He spoke initially to Ms Gibbon and gave her some details of his experience in the cooking industry and subsequently spoke to Mr Alexander, to whom he gave his papers.  Mr Alexander asked some questions about the hotel in which Mr Kuang had worked and recommended to him to make an application under the Employer Nomination Scheme, suggesting that 95% of refugee applications were unsuccessful.  Mr Kuang specifically asked Mr Alexander if it was possible to apply for employer nomination without a valid visa.  Mr Alexander replied "yes", an answer patently wrong.  In fact, at no time was Mr Kuang ever qualified to be granted employer nomination status.  This did not deter Mr Alexander from holding out that he could, or from taking Mr Kuang's money.

Mr Alexander offered to find a restaurant owner to sponsor Mr Kuang and advised that the cost of the service would be $A30,000.  Mr Alexander specifically told Mr Kuang that if the application was unsuccessful, the money would be refunded.  Mr Alexander conveyed to Mr Kuang the impression that most of the money went to the Government.  At a subsequent meeting at which both Mr Alexander and Ms Gibbon were present, Mr Alexander advised Mr Kuang that he was eligible for employer nomination and that a powerful employer had been found in a big restaurant who would sponsor him.  No name or details of that employer were ever forthcoming.

Ultimately, Mr Kuang returned with a cheque of $18,900 to advise Mr Alexander that he wished to instruct him to prepare an employer nomination application.  He was shown a copy of a contract in English, but was unable to read it.  He was told that the contract which he would need to sign would be in the same form and that the application would take some six to nine months and that if it was not successful his money would be refunded unless he did not pass the medical check or gave wrong information.  Ms Gibbon, when asked, told Mr Kyang it was unnecessary for her to translate the contract for him as she had already explained to him everything that was in it.  Mr Kuang signed the contract and gave the cheque to Mr Alexander together with an additional $100 of cash.

In signing the contract Mr Kuang relied upon the representations made by Mr Alexander, as well as Ms Gibbon's translation.

On a regular basis thereafter, Mr Kuang sought information as to the progress of his application.  He was told that everything was under control.  Although he asked, he was not given the name of the nominated employer.

In May 1994 Mr Kuang asked Mr Alexander to show him copies of the advertisements that he was supposed to have lodged, or at least to tell him who the nominating employer was going to be.  Mr Alexander refused to disclose the identity of the employer, saying that it was unnecessary that Mr Kuang know the name.  Mr Kuang then asked for the money back which he had paid.  Mr Alexander refused.  Although Mr Alexander said that he had done a lot of work on the application and found an employer he persistently refused to tell Mr Kuang who the employer was.  Mr Alexander ultimately refused to refund the money saying that he would not give a refund to anyone.  He said that it was a term of the contract that even if an applicant decided to stop the case he could not get the money refunded.

I find that it was a term of the contract that the money be refunded if the application was unsuccessful.  I find that the application was unsuccessful and never could have been successful because Mr Kuang did not have the relevant immigration status to succeed in such an application.  It must be said to have been dubious also that he had the necessary highly skilled qualifications.

I find also that there was a representation made by Mr Alexander guaranteeing success and, as in the previous case, that Mr Alexander is liable in respect of the making of that representation for any damages which Mr Kuang may have suffered, that is to say, the amount paid.  There was no evidence of any correspondence at all emanating from Mr Alexander or his office to the Department.  Since no evidence was given at all by Mr Alexander, I must conclude that he was in flagrant breach of his obligations under the contract.  Mr Kuang is entitled to recover both against Uvanna in breach of contract and against Mr Alexander for damages under the Trade Practices Act.

FENG MIN
         Ms Feng was a citizen of the People's Republic of China.  She obtained a Bachelor of Education degree after four years full time study at the East China Teachers' University and then worked as a teacher in Shanghai for four years.  She came to Australia in November 1991 on a student visa.  She studied English for three months and then computer science for two years.

Ms Feng first met Mr Alexander in around March of 1992 as a result of seeing an advertisement.  Mr Alexander told her that her qualifications were such as to be suitable for her to be sponsored and that he would find an employer to sponsor her and that her case would be successful.  He said it would take from four to eight months to complete and would cost her $18,000.  Relying upon what she had been told by Mr Alexander she decided to engage Uvanna.  The arrangement was that she was to make an initial payment of $9,000.

Subsequently she paid the $9,000 and was shown a copy of the letter of appointment which she and her husband then signed.  She was later advised to obtain a first aid certificate as this would assist her with the employment criteria.  She did so and mailed it to Mr Alexander.

In around October 1992 Ms Gibbon telephone Ms Feng and told her that a sponsor had been found for her in the form of Pennant Hills Pre-School Kindergarten who was prepared to pay her a wage of $38,000 per annum.  Although she sought more information from time to time as to the outcome of her application, she was told not to worry and that arrangements would be made for her to meet the employer in due course.

Around September 1993 Ms Gibbon asked Ms Feng to pay the final payment of $9,000.  Ms Gibbon showed to Ms Feng a copy of a letter from the Department which Ms Gibbon said indicated that the position had been approved, but that Ms Feng might have to go to Singapore or somewhere else overseas to apply.  The possibility that this was necessary was not one that had been initially canvassed and Ms Feng was understandably concerned that if she were to leave Australia she might not be allowed back.

Ms Feng then paid a further cheque of $9,000.  In the next month Ms Gibbon spoke by telephone to Ms Feng and told her that if she were not to go overseas the application would cost a further $3,000.  Ms Feng's husband paid an additional $2,000 on 12 October 1993.

In early 1994 Ms Feng went to see Mr Alexander again.  He affected to be too busy to talk to them, although Ms Gibbon did.  In June 1994 Ms Feng was told that the employer application had been unsuccessful.  In the result she lodged her own application thereafter.

As in the other cases, I find that Uvanna was contractually obliged in the event of non-success to refund the moneys paid and was in breach for not so doing.  I find further, that Mr Alexander represented that an application would be successful and that the time it would take would be no longer than eight months, both of which representations were untrue and amounted to misleading and deceptive conduct.  As a person concerned in the conduct ultimately of Uvanna, Mr Alexander is likewise liable to Ms Feng in damages in the amount which Ms Feng and her husband paid.

I find also, in accordance with her evidence, that Ms Feng understood some 70%-80% of the conversation with Mr Alexander without the necessity of an interpreter.  She understood the interpretation to be accurate.

SHEN GU HAI
         Ms Shen is a citizen of the People's Republic of China.  She authorised her brother to engage the services of an immigration agent to make an immigration application for her in early 1993 while she was living in Japan.  In the result, Mr Shen Guo Jun, the brother, approached Mr Alexander who told him that with Ms Shen's qualifications the application would be successful and would be approved within six to nine months.  He was told that the charge would be reduced from $30,000 to $28,000 if a deposit of $20,000 was paid the following week.  Mr Alexander said that the payment would be refunded if the application was not successful.  Ms Shen arranged for the sum of $20,000 to be paid in Australia to Uvanna.

When in early 1994 it appeared that Mr Alexander had done nothing in respect of the application and would not refund any money, Ms Shen instructed lawyers to recover the amounts paid on her behalf.

I find that Uvanna is in breach of its contractual obligation to refund to Ms Shen moneys paid.  I find also that Mr Alexander made a representation that the application would be successful and further that approval would take six to nine months.  Both of those representations were false and misleading in that it is not suggested that on the part of Mr Alexander it would have been reasonable to make the representations.  Accordingly Mr Alexander is liable in damages in the amount of the moneys which Ms Shen outlaid to Uvanna.

YE XIAO DONG
         Mr Ye was a citizen of the People's Republic of China.  He enrolled in a five year course at Shanghai Second Medical University and completed with course with a degree of Bachelor of Dentistry.  Thereafter he was employed as a doctor in the Oral Cavity Department at the People's Hospital in Fuzhou.  He arrived in Australia on a student visa having a six month currency.  In that first six months he studied English.

After the Tiennamen Square massacre he was given a four year visa pending the outcome of his application for residency.

He first met Mr Alexander around the middle of December 1992.  Mr Alexander said there would be no problem in Mr Ye applying under the nomination scheme.  He was told that Mr Alexander's services would cost him $30,000, although he would get 100% refund if the application were to fail.  Mr Alexander agreed to find an appropriate employer.

There was negotiation on the fee and Mr Ye had it reduced from $30,000 to $25,000 apparently, at least so Mr Alexander said, because it was Christmas.  Mr Alexander discussed with Mr Ye the possibility of working as a dentist.  Mr Ye said he was not qualified to do that but could work in non-clinical jobs, at least until the Dental Board registered him.  In the conversation Mr Alexander reiterated that if the application were to fail the moneys would be refunded.

Ultimately Mr Ye paid Mr Alexander $15,550 but received a refund of $150, leaving the amount that he had paid at $15,400.  It was in reliance of the representations made by Mr Alexander that Mr Ye entered into the contractual arrangement with Uvanna.

The contract was signed at a later time.  Mr Alexander explained the contract to Mr Ye, referring on the last page of the contract to the fact that there was no guarantee and saying that this would not be a problem for Mr Ye in this case and that this was written just for the Immigration Department.

Between the beginning of 1993 until the end of that year there were various discussions between Mr Ye and Mr Alexander.  In some of these conversations Mr Ye spoke to Ms Gibbon and was told that an employer had been found but the name was secret.  At some stage Mr Ye pointed out to Mr Alexander that the contract neither referred to the six to nine month period within which the application should be successful, nor did it refer to the 100% refund.  Mr Alexander agreed to change the contract in respect of the latter, but not in respect of the former provision.  In the result, the parties agreed to vary the standard form of the contract para (2), by adding after the word "refund" the word "all".  I do not think that the amendment substantially in any way varied the contract in accordance with its proper meaning.  It thus is unnecessary to consider whether, if there were a variation, there was consideration for it.

Ultimately, Mr Alexander deigned to see Mr Ye in August 1993.  Mr Alexander said that the delay had not been his fault but that there had been problems in having the qualifications approved by the National Office of Overseas Skill Recognition.  He was told that the application would only take a few more weeks.  The name of employer continued not to be disclosed.

In mid-October 1993 Ms Gibbon advised Mr Ye that an assessment of his qualifications had been received "from Canberra".  The assessment treated the qualification as equivalent to an Australian Bachelor degree.

By the end of October Mr Ye was concerned that, despite the fact that ten months had gone by, the application did not seem to have progressed.  Thereafter, Ms Gibbon called Mr Ye and suggested a meeting with the "sponsor" who was to nominate Mr Ye.  That meeting took place at Belmore, a Sydney suburb, and it appeared that the sponsor was a dental clinic which expected Mr Ye to work as a dental surgeon after his qualifications had been recognised by the Dental Board, assuming they were.  The problem was, of course, that his qualification had not been recognised.

Mr Ye then went to see Mr Alexander and complained that it would be illegal for him to work as a dental surgeon.  Mr Ye's wife was concerned that her husband might go to gaol if he were to work illegally and threatened to go to the Department to see whether or not Mr Ye could legally work.

Mr Alexander then suggested that something could be worked out, although he refused a refund.  At a subsequent meeting Mr Alexander suggested sponsorship with a dental technician.  Mr Ye was of the view that this likewise was illegal.  In the result Mr Ye told Mr Alexander that, if he had been told the things he then knew, he would not have signed the contract.  Mr Ye professed to have been deceived and sought a refund of his money.  This was refused.

In March 1994 Mr Ye made his own application for permanent residency and was successful.

Although it is clear that Mr Alexander must have had some discussion with a dental technician as a putative sponsor, there is no record of any file with the Department seeking approval of the position, let alone any record of an application made on behalf of Mr Ye.  In the result Uvanna was in breach of its contract in not performing the work for Mr Ye which it had contracted to do and within the time it had contracted to do it, as well as in failing to refund to him the money.

I find also that Mr Ye relied upon Mr Alexander's representation that there would be no problem under the Employer Nomination Scheme and that the success would be forthcoming in six to nine months.  I find these representations to be misleading and accordingly that Mr Alexander as a person concerned in the misleading conduct of Uvanna is liable to Mr Ye in damages in the amount of the money which Mr Ye paid to Uvanna.

WEN MING WANG
         Mr Wen was a citizen of the People's Republic of China who had completed a five year full time undergraduate course at Shanghai Second Polytechnic University, obtaining a diploma.  For the next three years he was employed as Systems Engineer at machinery works in Shanghai.  He came to Australia in 1989 with a six month student visa and then lodged an application for permanent residency on the basis of refugee status in July 1990.

Mr Wen responded to an advertisement placed by Uvanna in a Chinese newspaper.  He first met with Ms Gibbon.  He was then introduced to Mr Alexander.  Mr Alexander said that Mr Wen had good qualifications and that he (Mr Alexander) had an employer who would sponsor his permanent residency.  The fee arranged was $15,000; $7,500 payable as a deposit and the remainder when the application was approved.  It was said that this was a discount price, open only for a short time.  Mr Alexander said that he would guarantee permanent residency by Christmas of 1992.

Mr Wen later returned with a cheque for $7,500.  He spoke to Ms Gibbon who said that she would translate the contract for him.  She said that the contract said that Uvanna would get an employer to sponsor for permanent residency and if it failed to do so money would be refunded.  She also said that the money would not be refunded if there was false information given, if Mr Wen failed the medical examination, or if Mr Wen was a criminal.

In oral evidence Mr Wen indicated that although there had been a translation he understood most of what Mr Alexander said.  This did not contradict his written evidence that he could speak English but was not fluent in it.

In reliance upon the representations made by Mr Alexander, Mr Wen decided to employ Uvanna to act for him.  He signed the contract in the standard form.

During the period 12 March 1993 and 1 October 1993, he visited the offices of Uvanna on a number of occasions to see how his application was proceeding.  In August 1993 Ms Gibbon told him that she was sending to him a copy of the advertisement for his job.  In the mail he received an advertisement showing only a post office box address and advertising for a graduate engineer with a minimum five years experience in heat treatment of metals within an expanding consultancy practice.

Around November 1993 the Commonwealth Government announced a new policy for the non-repatriation of Chinese people in Australia after the Tiennamen Square massacre.  Such persons could apply for permanent residency by lodging an application which became known as an "816 application".  There was some discussion between Mr Alexander and Mr Wen about the advantages of an employer nomination as against an 816 application.  Mr Alexander said that, if permanent residency had not been granted through the Employer Nomination Scheme by March 1994, he would return Mr Wen's money.

In April 1994 the application had still not been granted.  Not surprisingly, Mr Wen sought his money back but Mr Alexander refused.  Thereafter Mr Wen complained to the Department.

No file was produced on subpoena from the Department and it must be concluded that no application was ever made either for approval of a position with a nominating employer or in respect of Mr Wen himself.

In this I find that Uvanna is in breach of contract in not performing its obligations by the due date or indeed at all under the contract and judgment will be entered against it for the money which Mr Wen paid.

Likewise judgment will be entered against Mr Alexander as a person concerned in the misleading and deceptive conduct of Uvanna as a result of the representations made by him which were false.

XU SHI FANG
         Ms Xu was a citizen of the People's Republic of China.  Between 1986 and 1989 she was enrolled in a computer programming course part-time at Shanghai Teachers University from which she obtained a certificate in computer programming.  From October 1983 to October 1989 she was employed as a computer programmer at the Shanghai Television Factory.

In late 1989 she came to Australia on a student visa.  In March 1992 she went to see Mr Alexander together with a friend, Mr Huang.  Mr Alexander expressed the view that Ms Xu's qualifications were good and that he could get her permanent residency.  He quoted a fee of $15,000 for each of Mr Huang and Ms Xu, with each to pay a $10,000 deposit, and the balance payable when the application was approved.  He said it would take six to eight months to achieve permanent residency.

A few days later, and in reliance upon the representations made by Mr Alexander, Ms Xu decided to employ Uvanna to act for her.  Ms Gibbon offered to explain the terms of the contract to her, saying that it meant "You give us the money and we will arrange for you to get permanent residency".  Ms Xu then signed the agreement as did Mr Huang.  They paid $10,000 (each in two instalments of $5,000) as an up front fee.  Thereafter between April 1992 and January 1994, Ms Xu telephoned Mr Alexander's office and spoke to Ms Gibbon at least once a month asking how the case was going.  At no stage was she ever advised as to the course of any application or indeed as to whether an employer had been found to nominate her.

In oral testimony Ms Xu said that she could understand Mr Alexander when he spoke in English and that she was able to understand that the translation was accurate.  She conceded that in some respects she needed a translator.

A file was opened by the Department in respect of Ms Xu.  An employer nomination had been lodged, showing a sponsor Woodbest Pty Ltd, but the nomination had not satisfied the regulatory requirements because the position available did not require the appointment of a highly skilled person.

The correspondence file indicates that North West Immigration Services had written, consequent upon this adverse decision, making submissions that the position available was one of great responsibility.  An ultimate grant of permanent residence to Ms Xu arose as a result of an 816 application made directly by her and not from any action on Mr Alexander's part.

I would find that Uvanna was in breach of contract in not refunding the money paid to Ms Xu in respect of the failed application.  Uvanna was also in breach in failing to ensure the success of the application within the time guaranteed.  I would find Mr Alexander a person concerned in misleading and deceptive conduct, namely his representation that it would take six or eight months to achieve permanent residency.  He is liable in damages in the same amount.

A subpoena served on the Department did not result in the production of any file concerning Mr Liang.  On the evidence no work at all appears to have been performed by Mr Alexander despite his representations to the contrary.  On this basis, Uvanna was in flagrant breach of the contract with Mr Liang.  It also breached the contract by failing to obtain residency status for him within the time stipulated or at all, and by failing to refund the money owing to him in accordance with the contract.

I would accordingly give judgment in favour of Mr Liang against Uvanna.  As Mr Alexander was knowingly concerned in the representation that an employer would be found to sponsor and employ Mr Liang as a chef, that it would take four to six months for him to get permanent residency and that success was guaranteed, he participated in the misleading and deceptive conduct of Uvanna and is liable to Mr Liang in
damages in the same amount as represents the amount Mr Liang paid Uvanna.

Finally, I should say that Mr Liang gave oral evidence.  He said that the conversations he had had with Mr Alexander were in fact in English and that although Ms Gibbon was present in the room, the conversation was not translated.  On this basis the question of admissibility earlier discussed does not arise in his case.

IP SHING OP
         Mr Ip was a citizen of Hong Kong who came to Australia on 6 September 1980 on a tourist visa.  In 1990 he married a Chinese national who had arrived here on a student visa.

Mr Ip was attracted to Uvanna by an advertisement in a Chinese daily newspaper.  He initially had a conversation with Ms Gibbon about qualifications and subsequently spoke to Mr Alexander.  Mr Ip had worked in cargo at Hong Kong airport and had worked in a variety of restaurants but held no formal training certificates.  He had worked as a cook in Chinese restaurants in Australia since 1980.

Mr Alexander told Mr Ip that Mr Alexander could find an employer to give him a job and who could sponsor him.  He quoted a fee of $15,000, of which $7,500 was payable up front and the balance when the application was approved.  Mr Alexander said that he guaranteed Mr Ip permanent residency, but that if he failed the money paid would be refunded.  He indicated that the fee had already been discounted.  When asked how long it would take to obtain permanent residency, Mr Alexander said that it could take four to six months, otherwise the money paid would be refunded.  When Mr Ip asked who the employer would be, Mr Alexander replied that he (Mr Alexander) would look after that matter and that Mr Ip would know the details when the time came.

Mr Ip subsequently returned and agreed to pay the money nominated if Mr Alexander could find him an employer who would sponsor him.  In agreeing to employ Uvanna, Mr Ip relied upon the representations made by Mr Alexander.

On 27 June 1992 Mr Ip paid $7,500, partly in cash and partly by cheque, to Ms Gibbon, who said:

"Here is the contract, I will translate it for you.  You will pay fifteen thousand dollars ($15,000); we will find you an employer who will sponsor you and get you permanent residency; if we fail you will get your money back; you will not get your money back if you have lied to us, you have a criminal record or you fail the health test."

Mr Ip then signed the contract and was given a receipt.  From June 1992 to December 1992, Mr Ip telephoned the office of Uvanna on a number of occasions and spoke either to Mr Alexander or Ms Gibbon, seeking to ascertain the status of the application.  On each occasion he was told not to be concerned, that the case was being processed.  On one occasion Mr Alexander indicated that there had been a change of government policies and that it was harder to get permanent residency than it had been in the past, but that Mr Ip should not worry.  Mr Ip was told he would have to wait another five months.

On two occasions in the course of 1993 Mr Ip went with his wife to Mr Alexander's office and asked as to the progress of his case and as to the name of the employer.  On each occasion he was told that the matter would take a little longer and that there was no need for Mr Ip to know the name of the employer.

Subsequently, Mr Ip complained to the Department about Mr Alexander and after the Tiennamen Square massacre made application in November 1993 for permanent residency himself, which was ultimately successful.

A subpoena directed to the Department to produce any file relating to Mr Ip produced no such file.  On the evidence before me it seems that no work at all was done by Mr Alexander and that in consequence Uvanna was in breach of the contract with Mr Ip.  It was also in breach of the contract by failing to obtain for him a residency visa within the nominated time or at all, and by failing to refund to him in the event of failure the money which had been paid.  I would direct judgment against Uvanna accordingly for the amount paid by Mr Ip.

Again Mr Alexander was knowingly concerned in the making of representations that an employer sponsor could be found, that such an application would be successful and that it would take four to six months.  The making of those representations constituted misleading and deceptive conduct.  Mr Ip relied upon the representations and accordingly Mr Alexander is liable in damages to Mr Ip for the amount which Mr Ip had paid to Uvanna.

Mr Ip gave oral evidence.  He said that at the time the conversations took place he (Mr Ip) was able to understand most of what Mr Alexander said without translation.  He said that most of the time he had answered Mr Alexander in English, although he had sometimes used Ms Gibbon to translate.  Particularly Mr Ip understood those parts of the conversation as concerned the representations which I have found to have been made by Mr Alexander.  So far as Ms Gibbon's translation was concerned, Mr Ip said, and I accept, that Ms Gibbons's translation appeared to him to be completely accurate.

XIE XIAO JIA
         Ms Xie was a citizen of the People's Republic of China.  She had studied part-time at Guang Zhou Province Television and Radio University, obtaining on graduation a certification in arts and finance.  She had then studied a further period of two years part-time and the Guang Zhou Province Society where she obtained a certificate in clothing colouring, designing, technology, drawing, sewing and material.

Ms Xie came to Australia on 4 November 1988.  She subsequently married another Chinese national who had come to Australia on a student visa.

Ms Xie responded to an advertisement in a Chinese newspaper and contacted Uvanna, speaking initially to Ms Gibbon.  Subsequently she attended upon Ms Gibbon with a friend and was then introduced to Mr Alexander.  Mr Alexander told her that it would be difficult for him to find an employer who could use the accounting qualifications but that he could find an employer who could use her sewing and dressmaking qualifications.  He quoted her a fee of $22,000, with a down payment of $11,000.  He told her that he guaranteed that she would get permanent residency within six to nine months or her money would be refunded.  Ms Xie then left Mr Alexander's offices to consider her position.

Subsequently Ms Xie rang and spoke to Ms Gibbon and told her that she had made a decision to pay the money which she subsequently did in a mixture of cash and cheque to Ms Gibbon.  Ms Gibbon translated the contract for Ms Xie, which translation was to the effect that $22,000 was to be paid, that Uvanna would find an employer to sponsor Ms Xie and get her permanent residency.  Ms Gibbon said on this occasion:

"... I cannot guarantee one-hundred percent success but there have been no failures yet; if we fail you will get your money back; you will not get your money back if you have lied to us, you have a criminal record or you fail the health test, your qualifications are not genuine or if you withdraw half way through."

Ms Xie said that she relied upon the representations of both Mr Alexander and Ms Gibbon in deciding to retain Uvanna to act for her in connection with an application for permanent residence.

In the period from September 1992 to September 1993, Ms Xie telephoned at least once a month to ascertain the progress of her application.  On each case she was told not to worry as the matter was being processed.

In May 1993 Ms Xie received in the mail a receipt indicating that a payment had been made of $150 by Uvanna in respect of the Employer Nomination Scheme.  In September Ms Gibbon told Ms Xie that an employer had been found and that the Department had approved the employer position.  She asked Ms Xie to pay the further $11,000.  Subsequently Ms Xie paid the money as requested and asked for the name of the employer.  She was told that this was Kolotas Manufacturing Company but that Ms Xie should not approach that company directly.  She was given a piece of paper showing some information about Kolotas Manufacturing Company and the annual salary for the position in question.

Subsequently in October Ms Xie was asked by the Department to attend for medical examinations; which she did.

Between January and June 1994 Ms Xie contacted Uvanna on a number of occasions complaining that she had heard nothing about the case.  She was told not to worry, that the case was being processed.  Ultimately Ms Xie received a letter from Mr Alexander advising her that the Department had questioned Ms Xie's ability to perform the nominated job, but that that was a matter still under debate.  Mr Alexander additionally wrote to advise Ms Xie of the possibility of making an application under the special immigration category relating to Tiennamen Square (Category 815).  Mr Alexander said that a separate application should not be lodged but her applications should be combined.  Mr Alexander then required Ms Xie to sign a letter to the following effect:

"This letter is to act as confirmation that should your employer/sponsor under
the current sponsorship of you for the position of Production Co-ordinator be able to source a suitable replacement for the position then we would be prepared to negotiate a part refund of fees paid in respect to numerous and various services which have been provided to you.

This offer is conditional on a suitable person being found to fill the vacancy by the sponsoring company Kolotas.

It is acknowledged and understood that you have made the decision to lodge a fresh application under the category 815 (Nov. 1 93 announcement) and furthermore that you have requested our company to prepare such application and lodge it with the Department of Immigration and Ethnic Affairs within the prescribed time period at no additional costs to yourself.

This arrangement and proposed course of action is now substituted in place of any previous agreement enter [sic] into by the parties."

There was a file produced on subpoena by the Department relating to the Kolotas nomination.  It is clear from the file that after the nomination was approved on 2 September 1993, no attempt was made to have approval of Ms Xie for the nominated position or to apply for a visa under the 1993 Regulations.

Mx Xie gave oral evidence from which it was clear that for her to participate in the conversations she needed a translator.

Although this is not a case where it seems Mr Alexander did absolutely nothing, it is clear that
Mr Alexander did not ensure that Uvanna performed its part of the contract.  He did not pursue the application and, in the result, Uvanna breached its contract with Ms Xie.  It did so also in failing to refund money when the application was not successful in the period in which it was said that success was guaranteed, namely six to nine months.

There are two complications in Ms Xie's case which cause it to differ from others.  The first is that Ms Gibbon, in her so-called translation of the agreement, did say that there was no guarantee of 100% success.  That was contrary to the representation which Mr Alexander made.  The second difference is the letter of 28 May 1994 signed by Ms Xie.

I am nevertheless of the view that judgment should be given against Uvanna for the amount which Ms Xie had paid to it.  Uvanna was in breach of the contract in failing to refund moneys to Ms Xie if success was not forthcoming within the six to nine month period stipulated by Ms Gibbon.  However, there is no evidence before me of any misrepresentation on the part of Mr Alexander.  Representations as to the time an application would take were made, but they were not made apparently by Mr Alexander but were made by Ms Gibbon.  In these circumstances it is difficult to see that Mr Alexander can be made liable to Ms Xie and I would dismiss her application against him accordingly.

WEI SHU QIAN
         Ms Wei was a citizen of the People's Republic of China.  She came to Australia in late January 1988 on a student visa.

Ms Wei responded to an advertisement placed by Uvanna with a Chinese newspaper.  In consequence she contacted Ms Gibbon and an appointment was arranged for her.  Initially Ms Wei spoke to Ms Gibbon and was asked about her qualifications.  These related to studies in mathematics and chemistry in China.  She was introduced by Ms Gibbon to Mr Alexander.  He told her that she had high qualifications and that she could apply for employer nomination to sponsor her.  He said that it was only when Uvanna was successful that money would be taken.  He said if the application was not successful, Ms Wei would not lose one cent.  He quoted her $20,000 as a starting fee.  When asked how long the permanency residency application would take, Mr Alexander said:

"I can guarantee you will get permanent residency within three (3) to nine (9) months or I will refund the money."

Based upon what Mr Alexander had said to her, Ms Wei agreed to instruct Uvanna to act for her in connection with an application.  She paid the initial $10,000 by way of cheque to Ms Gibbon who offered a translation of the contract (which Ms Wei ultimately signed) in the following terms:

"Here is the contract, I will translate it for you.  You will pay twenty thousand dollars ($20,000); we will find you an employer who will sponsor you and get you permanent residency; if we fail you will get your money back; you will not get your money back if you have lied to us, you have a criminal record or you fail the health test; your qualifications are not genuine or if you withdraw half way through."

In the period from July 1992 to August 1993, Ms Wei telephoned the offices of Uvanna at least once every month.  She also went there on at least four or five occasions.  She was led to believe that her application was being processed.

At some stage in the middle of 1993 she was shown an advertisement published in the Weekend Australian under the heading "Chemical Engineer" and was told that this was her prospective employer.  The advertisement showed no name.

In March 1994 Ms Wei had a further conversation with Mr Alexander in which she accused him of not fulfilling his promises and in which she asked him for a refund of her money.  Mr Alexander refused saying that Ms Wei should not waste the money, that she had signed a contract and that he (Mr Alexander) did not have to pay the money back.

A subpoena addressed to the Department produced no record of any file relating to any application made by Ms Wei.  Since there was no evidence tendered by Mr Alexander, one can but assume, despite the anonymous advertisement, that no, or at least a very insignificant, amount of work had been done on the part of Uvanna in securing for Ms Wei residency status.

I would find that Uvanna was in breach of contract to Ms Wei in failing either to secure residency status for her by the time nominated or at all, or by failing to refund to her in the event of failure the moneys she had paid.  I find also that Mr Alexander was knowingly concerned in the making of representations to Ms Wei, guaranteeing her permanent residency within three to nine months or a refund, which representations constituted misleading and deceptive conduct.  They were relied upon by Ms Wei and accordingly Mr Alexander is liable in damages to her in respect of the amount she had paid to Uvanna on faith of those representations.

Finally, I should note that Ms Wei gave oral evidence.  She said that she understood most of what Mr Alexander had said in the conversations with him and that as far as she was concerned the translation made by Ms Gibbon was accurate.  Particularly she recalled understanding the representation by Mr Alexander that he would guarantee 100% that she would get permanent residence.  I am sure that her understanding of English was greater than her ability to speak the language and that, in giving her evidence of the conversations with Mr Alexander in relevant particulars, she did not really rely upon Ms Gibbon to act as translator.

LIN QIANG
         Mr Lin was a national of the People's Republic of China.  He had graduated, after studying for five years at the Zhangjiang Medical College, with a Bachelor of Medicine degree and had worked as a doctor at the Zhangjiang Second Hospital between 1986 and 1988.

Mr Lin arrived in Australia on 9 September 1988 with a student visa.  In 1992 he responded to an advertisement he had seen in a Chinese newspaper and spoke, in an initial telephone conversation, with Ms Gibbon.  He subsequently went to the offices of Uvanna and spoke to Ms Gibbon who introduced him to an immigration consultant whose name he did not know.  It was not Mr Alexander as apparently Mr Alexander was at the time overseas.  The person to whom Mr Lin was introduced offered to find an employer sponsor, said that it would take six to eight months and cost $18,000 which should be paid in two instalments.  The person guaranteed success or a full refund.

In a subsequent conversation the fee was reduced to $16,000 of which $8,000 was to be paid immediately.

Ultimately Mr Lin agreed and paid $8,000 by cheque which he gave to Ms Gibbon.  She translated the contract on the basis:

"It says we will find you an employer who will sponsor you.  If we fail you will get your money back.  You will not get your money back if you have made false statements, you fail the medical test or you have a criminal record."

Mr Lin drew Ms Gibbons' attention to the fact that the contract did not mention the six to eight months.  Ms Gibbon told him not to be concerned because the contract could not mention "every detail of the agreement".  She said he was not to worry as everyone got the same contract.

In reliance on these statements and representations Mr Lin decided to enter into the agreement and signed it.

Later he was told that there was a mistake in the contract as to the second instalment and that this was to become payable when the letter of sponsorship approval was received from the Department.  He agreed to a variation and signed it.

Over the next six months Mr Lin telephoned Uvanna approximately every two weeks to enquire as to the progress of his application.  He was told that everything was under control and that he should be patient.  His qualifications were assessed as equivalent to a Bachelor degree in Australia.
         In November 1993 Mr Lin had a further conversation with Ms Gibbon.  She told him that Uvanna had got him
permanent residency under the 1 November announcement.  Mr Lin expressed dismay at this because the announcement had nothing to do with Uvanna.  He sought a refund of the money he had paid.  Ms Gibbon said that Mr Alexander was too busy to see Mr Lin and that in any event no money would be refunded.

A subpoena served upon the Department produced no file indicating any work having been performed by Uvanna for Mr Lin.  In the absence of any other evidence from Mr Alexander, it must be assumed that no work was performed.  In the result Uvanna was in breach of its contract with Mr Lin in not performing the services for which Mr Lin contracted.  Mr Lin is accordingly entitled to be repaid the moneys which he had paid and judgment should be entered against Uvanna accordingly.

As no allegation is made of any representation by Mr Alexander in this case, no order will be made in respect of him.

CHU LAI WAH
         Ms Chu is a citizen of Hong Kong married to another Hong Kong national.  She came to Australia in February 1992 on a visitor's visa, having unsuccessfully made two prior applications to emigrate to this country on the basis of a family reunion scheme.

Ms Chu responded to an advertisement which she had seen in a Chinese language newspaper placed by Uvanna.  She spoke initially to Ms Gibbon and then made an appointment to see Mr Alexander about arranging permanent residency for her husband.  She attended the meeting in February 1992 with her brother.

Mr Alexander noted that Ms Chu's husband worked in construction and asked for details of his qualifications.  He had been an experienced building contractor in the trade since at least 1974.  Mr Alexander quoted a fee of $30,000.  That figure was later reduced to $20,000, payable as to half up front and the balance when a letter of approval was obtained.

A subsequent meeting was arranged with Mr Alexander at which Ms Chu quizzed him about the services Mr Alexander had to offer.  Mr Alexander said that Uvanna would find Ms Chu's husband a sponsoring employer who would give him a job in the construction industry, that he (Mr Alexander) was 100% certain that permanent residency could be obtained, but if the case was lost a 100% refund would be given and all costs would be borne by Uvanna.  It was said that it would take four to six months to know the result.

Based on these representations, Ms Chu decided that she and her husband would instruct Uvanna to act for her in
connection of the making of an application for permanent residence in Australia.

Subsequently Ms Chu returned and paid the $10,000 requested.  She signed the contract proffered by Ms Gibbon who gave the perfunctory explanation of the contract given to other applicants and which purported to be a translation.

In May and June 1992 Ms Chu arranged to send to Mr Alexander copies of documents concerning her husband's work experience.  Thereafter, until January 1993, Ms Chu telephoned the office of Uvanna on a monthly basis to enquire as to the progress of the application.  She was told that it was proceeding and that she need not worry.

In early 1993 she was told by Ms Gibbon that the application had been lodged.  She was shown a document said to be a receipt for the husband's application.  Ms Gibbon said that the sponsor was a company named Galaco Pty Ltd, that there was to be a salary of $35,000 and that the job was floor and wall tiling supervisor.  She said also that it was not compulsory for Ms Chu's husband to work for this company.

Regular attempts to enquire as to progress of the application continued until March 1994.  In that month a meeting took place in which it was said that another three months would be required.  Ms Chu said that unless there was an approval within that three month period the matter should be treated as finished, meaning, presumably, thereby that instructions to act would be withdrawn and the fee refunded.

On 15 July 1994 Mr Alexander wrote a letter indicating that the application had been held up for reasons unknown to him.  The letter spoke of the potential of legal proceedings to force the issue with the Department.  He then stated that if after 90 days no order had been made moneys would be refunded.

In fact no moneys have ever been refunded, nor has the application ever been processed by the Department.  A subpoena addressed to the Department to produce files in respect of Ms Chu's husband was returned unanswered from which it may be deduced that there was no file in that office dealing with the matter and that despite protestations, Uvanna had not performed its side of the contract with Ms Chu.  Clearly Uvanna was in breach of contract in a number of respects including not having refunded the moneys paid when the application had not been successful within a reasonable period of time, and I would accordingly direct judgment to be entered against Uvanna for the moneys paid by Ms Chu.

Mr Alexander made only the following representations to Ms Chu.  He said to her:

"We can find your husband an employer who will sponsor him and give him a job in the construction industry ... your husband is very experienced so we can guarantee you that it will be successful.  I am 100% certain that we can get permanent residency for your husband."

These representations constituted misleading and deceptive conduct for which Mr Alexander is liable in damages to Ms Chu.  In these circumstances I would direct judgment also against Mr Alexander in the amount that Mr Chu paid Uvanna.

GU WEI KANG
         Mr Gu is a citizen of the People's Republic of China who arrived in Australia on 3 May 1990 on a six months student visa.  Between 1972 when he finished high school and 1985, Mr Gu worked in various capacities at the Shanghai Ship Yard.  For approximately three years he attended the Shanghai Shipbuilding Industry Joint College in Shanghai studying a course in shipbuilding which he completed.  Thereafter he worked as a ship designer until 1990.

Mr Gu first entered Australia on 3 May 1990 on a student visa which was extended from time to time.  He did various English courses until November 1991 and subsequently studied business computing in 1992 and 1993 and the Careers English and Business College at Darlinghurst.

Mr Gu was introduced to Mr Alexander by a Mr Doody.  Mr Gu showed Mr Alexander documentary evidence of his education and work experience.  Mr Alexander told Mr Gu he would not have to worry any more.  There was some discussion as to whether it would be preferable for Mr Gu to wait overseas, whereupon Mr Alexander said that Mr Gu was not to worry, that it would take six to nine months to complete the case.  He said that if the case failed the money would be refunded.  Mr Alexander then gave Mr Gu a copy of the standard form of agreement to look at and directed him to Ms Gibbon if any interpretation was needed.

Mr Gu read the agreement but as his English was not very good and he could scarcely understand it he asked Ms Gibbon to translate or alternatively to let him bring the agreement home to study.  Ms Gibbon said that the agreement could not be taken home until it was signed.  Mr Gu asked that the agreement be put into the Mandarin language and that the balance of the money (30%) not be given to Mr Alexander unless the case was successful.  He said also that he wanted the agreement to state how many months it would take to complete the case.  Ms Gibbon said that she would have to go back to Mr Alexander on these matters.  Mr Alexander said that he was happy for the agreement to be in Mandarin and for 30% of the money payable to be put with a lawyer, but he could not agree to put in the agreement how long it would take.  Mr Alexander said there would be no problems with the case.  Subsequently Ms Gibbon gave to Mr Gu the agreement written in Mandarin.  The English version of the agreement was subsequently signed.  Mr Gu then gave to Ms Gibbon a bank cheque for $11,000.

Later Mr Gu sought to speak to Mr Alexander because he had discovered that the English version of the agreement was different to the Mandarin version.  Mr Gu had checked with a dictionary and found this to be the case.  Mr Gu was unable to speak to Mr Alexander but did speak with Ms Gibbon who said that it did not matter and that it was only a small problem if there was some difference between the two versions.

Subsequent conversations failed to elicit any information as to the progress of the application.  On 9 January 1993 Mr Gu gave Ms Gibbon a further bank cheque for $3,000 payable to Leslie Alexander.  A few months later he enquired again as to the progress and whether the case had started.  Ms Gibbon said she was not sure.  She said normally it would take between six and nine months and that after that time had elapsed she would call Mr Gu about the case.  After another few months Mr Gu again spoke to Ms Gibbon who said she could not answer any more questions.

On 1 June 1993 Mr Gu sent a letter to Mr Alexander complaining about the delay and asking for his money back.  He went to see Mr Alexander in July of the same year, but was only able to speak to Ms Gibbon.  She told him that a sponsor had been found and that the name of the sponsor was Baki.  Ms Gibbon told Mr Gu that if he was interested he could go to the company and just look at it from outside.  She said that he was not to contact Mr Baki or go inside.

Later Mr Gu went to the address of the company.  There was a residential house with a garden around it but no sign of there being business present.  He then telephoned for Mr Alexander and spoke again to Ms Gibbon telling her that he had been to see the company but had just found a house.  Ms Gibbon said that she did not know but suggested that perhaps there was some office in the house at that address, and that the rest of the company was perhaps in the countryside.  Mr Gu sought an appointment with Mr Alexander as by then nearly eight months had passed.  Ms Gibbon said she could not tell Mr Gu anything because the case had just started.

In August 1993 Mr Gu again spoke with Ms Gibbon, having been unsuccessful in speaking with Mr Alexander.  He told her that he wanted to go and see an employer in Hong Kong and wished to know whether he was able to go (and inferentially, come back).  An appointment was made to see Mr Alexander on 16 September 1993.  At that time Mr Alexander told Mr Gu that his case was fine and that he should wait until it was successful, after which he could then work overseas in Hong Kong, Japan or anywhere.  A request for money to be refunded was refused, "because your case is going well".  Mr Alexander did then say that Mr Gu could go overseas for a short time.  This, Mr Gu did.  Some months later Mr Gu again sought to speak to Mr Alexander.  By then Ms Gibbon had ceased to be an employee of Uvanna.  Mr Gu unsuccessfully sought an interview with Mr Alexander.  He was told later that the case was "not much longer to be successful".  Mr Gu said he still wanted to see Mr Alexander.

On 7 January 1994 Mr Gu went to see Mr Alexander who refused to see him.  By then 15 months had passed.  Mr Gu sought an explanation and was told that Mr Alexander would see him on the following Tuesday.  He sought a return of his money from Mr Alexander but was told that the case was fine and had already been sent to the Department.  He said that the case had only been sent that month.  Mr Gu sought a receipt from the Immigration Office but was not given one.

Further correspondence ensued until ultimately a receipt was forwarded to Mr Gu showing that the Immigration Department had only received an application on 8 March 1994.

It was only in September 1994 that Mr Alexander gave Mr Gu a telephone number for Mr Baki and told Mr Gu that he could contact Mr Baki.  By this time the office of Uvanna had closed.

A file concerning Mr Baki and the application was produced on subpoena.  It adds nothing to the facts which I have set out above.  Again I would find that Uvanna was in breach of its contractual obligations to Mr Gu in failing to secure for him residency status within the time stipulated or at all and in failing to refund to him the money that had been paid.  I would accordingly enter judgment against Uvanna for the amount which Mr Gu had paid.

In representing that an application would take only six to nine months, Mr Alexander was knowingly concerned in misleading and deceptive conduct which was relied upon by Mr Gu.  He is accordingly liable in damages to Mr Gu in an amount equal to the amount which Mr Gu paid.

Mr Gu gave oral evidence.  He clearly understood some English and in particular understood Mr Alexander to say that the application would take six to nine months to complete and that in the event of failure, money would be refunded.  These were matters which Mr Gu understood in the English language, and his comprehension of them and accordingly his evidence of them did not depend upon any translator.

HUANG SHU JUN
         Ms Huang was a national of the People's Republic of China.  She arrived in Australia on 30 December 1989 on a migrant visa.  It seems her husband arrived a few days earlier.   It was a condition of their entry visa that they marry within three months, as they did on 8 January 1990.

Ms Huang responded to an advertisement placed by Uvanna in a Chinese newspaper.  An appointment was made to see Mr Alexander and she attended with her husband at the office of Uvanna on 7 March 1991 where she spoke to Ms Gibbon.  Ms Gibbon introduced them to Mr Alexander.  Mr Alexander was told that Ms Huang wanted to sponsor her brother from China.  The brother-in-law was then in Nauru.  Mr Alexander offered to help.  A fee of $25,000 was quoted, although it was said it could be paid in three instalments.  The brother had qualifications from a cooking school in China and had had some ten years experience there.  Mr Alexander said:

"I can guarantee you that this will be successful.  Otherwise you will get a refund.  Unless your brother has a health problem or criminal history the immigration application will be successful."

In faith of the representations made by Mr Alexander, Ms Huang decided to employ Uvanna to act in connection with an application for residency for her brother.  Subsequently Ms Huang paid over in cash the sum of $4,950 giving that amount to Ms Gibbon.  Ms Gibbon then offered to translate the written contract which was shown to Ms Huang.  Ms Gibbon said that the contract was to sponsor the brother to Australia, that there was to be $25,000 paid in three instalments with a guarantee that if not successful there would be a refund.

In April 1991 Ms Huang received a phone call from Mr Alexander's then secretary informing Ms Huang that an employer had been found to sponsor her brother and that the next payment was due.  They accordingly paid further instalment of $12,500 to Mr Alexander.  When asked who the employer was, Mr Alexander said an Australian company in Sydney but did not give a name.  He said it was a restaurant which provided Chinese food for customers.  Mr Alexander then produced some documents which he said were migration papers which needed to be filled out and signed by the brother.

In July 1991 a further telephone call was received by Ms Huang from Mr Alexander's secretary advising that the final payment was due.  When asked to explain how the final payment came to be due, Mr Alexander replied that the amount had to be paid in order to the form for the medical test.  Ultimately a third instalment of $7,500 was paid and a receipt given.

In December 1991 the brother was advised that the employer nomination had been rejected by the Department of Immigration and Ethnic Affairs.  The rejection was explained by Mr Alexander on the basis that the Australian Embassy in Nauru had made a mistake.  Mr Alexander said that the problem could be sorted out quickly and there would be an appeal which would be  successful.  He required payment of a further amount of $2,500 which Mr Alexander explained were extra expenses.  He said that this would be the last payment which would have to be made.  The money was paid.

Subsequent telephone calls (when answered) failed to elicit any news of the application.  In early 1993 Mr Alexander indicated that the application was still being reviewed.  Around that time Ms Huang's husband asked Mr Alexander to refund the money or he would take the matter to the Government Solicitor.  Mr Huang's husband was contacted by Ms Gibbon who asked that this not happen but that another six months be given.

On 5 July 1993 a letter was received from Mr Alexander stating that the problems were in Fiji and that the money would be refunded if the application was not finalised by the end of 1993.  Mr Alexander required a letter to be signed in the following terms:

"In consideration of your undertaking to refund all the fees paid to date if Huang Jia Lin's application does not succeed by 1 December 1993, I as authorised agent for my brother-in-law Huang Jia Lin accept it in full and final discharge of all your obligations and I undertaken to keep this agreement confidential as a private arrangement between ourselves."

The letter was, however, never signed.  The offer to refund was subsequently withdrawn.

To this day no success has been achieved by Uvanna, nor has any money been refunded.  The Department of Immigration's file produced on subpoena shows that an internal review was held and a decision made to affirm the original decision made in Nauru to reject the application of the brother.  The decision-maker's statement of reasons shows that the application was rejected because the brother was not regarded as being "highly skilled" in accordance with the definition in the Migration Regulations.

Uvanna is in breach of its obligation to Ms Huang in that permanent residency was not secured by the brother and the moneys paid were not refunded.

Mr Alexander represented to Ms Huang that the application would be successful and that a refund would be provided.  Ms Huang relied upon that representation which was misleading and deceptive in entering into the arrangement with Uvanna.  Accordingly judgment should be entered for Uvanna for the amount paid by Ms Huang and against Mr Alexander in damages in the same amount under the Trade Practices Act.

Finally, I should say that Ms Huang gave oral evidence.  It is clear from that evidence that she understood only a little of what Mr Alexander said in English and that she relied upon the translation.  I do not think it would be safe to find on the evidence that her understanding was sufficient to permit the conversations to be given in evidence without the benefit of interpretation of them.

CONCLUSIONS
         The cumulative result of the present case is that each of the applicants, other than Mr Lin, is entitled to succeed against both the first respondent and the second respondent to recover amounts equal to that which they paid.  Mr Lin is entitled to succeed only against the first respondent.

The respondents should pay the costs of each of the applicants, other than Mr Lin.  The first respondent should pay the costs of Mr Lin, and in respect of that matter I make no order as to the separate costs of the second respondent.

I certify that this and the
preceding one hundred and two
(102) pages are a true copy of the
Reasons for Judgment herein of
his Honour Justice Hill.

Associate:

Date:  26 September 1996

Counsel and Solicitors      J Basten QC and S C Churches

for Applicants:             instructed by the Public Interest Advocacy Centre

Counsel and Solicitors      S Burchett instructed by Andrews

for Respondents:            

Dates of Hearing:           3 - 9 July 1996

Date Judgment Delivered:         26 September 1996