Zeng and Shiao

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ZENG v SHIAO [2007] FMCA 794

TRADE PRACTICES – Misleading and deceptive conduct – aiding and abetting misleading and deceptive conduct – breach of contract – migration agents statement of services.

Migration Act 1958 (Cth) ss.5, 29, 276(1), 276(2), 313
Migration Agents Regulations 1998 (Cth)
Trade Practices Act 1975 (Cth) ss.51A, 51AA, 51AB, 52, 74(1), 74(2), 75(B), 81

Federal Magistrates Court Legislation Amendment Act 2006 (Cth)

Codelfa Construction Pty Ltd v. State Rail Authority of N.S.W. [1982] HCA 24; (1982) 149 CLR 337
Yorke v Lucas (1985) 158 CLR 661 at 666-669

Hartnett v Migration Agents Registration Authority [2004] FCAFC 269

Applicant: WANG LING ZENG

Respondent: JASON SHIAO

File number: MLG 247 of 2005

Judgment of: Phipps FM

Hearing dates: 21 & 22 February 2007

Date of last submission: 22 February 2007

Delivered at: Melbourne

Delivered on: 25 May 2007

REPRESENTATION

Counsel for the Applicant: Mr Keon-Cohen

Solicitors for the Applicant: Jonathan Wong Lawyers

Counsel for the Respondent: Mr Kuan

Solicitors for the Respondent: Nevett Ford Lawyers

ORDERS

1. The respondents pay the applicants the sum of $50,000.

2. The question of interest and costs are reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 247 OF 2005

WAN LING ZENG

Applicant

And

JASON SHIAO

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicants, Ms Zeng and Mr Zeng, are brother and sister.  The first respondent, Mr Shiao, is a migration agent.  The second respondent is a corporation through which Mr Shiao conducted his business in Australia.

2. In 2002, Mr Zeng, a Chinese citizen, was living in the Republic of China.  His sister, originally from China, was living in Australia as a permanent resident.  Their mother and Mr Zeng’s son were also living in Australia.

3. Mr Zeng had applied twice for a visa to come to Australia and been refused on both occasions. Ms Zeng paid Mr Shiao’s company, $50,000 to obtain a visa for Mr Zeng to visit Australia. Mr Zeng did not obtain a visa.  Mr Shiao and his company say this is because Mr Zeng did not do what was necessary. Ms Zeng and Mr Zeng claim they are entitled to recover the $50,000.

The issues

1. The issues are:

   a)what the agreement was between the parties, and within that;

   i)whether the written agreement between Ms Zeng and Mr Zeng and the company contained a handwritten clause written on to it by a friend of Ms Zeng, Mr Liu;

   ii)whether the agreement involved the obtaining by Mr Shiao and his company for Mr Zeng of a Malaysian passport, or whether it involved the obtaining of a Malaysian My Second Home visa and then a visa to visit Australia;

   iii)whether Mr Shiao misrepresented what his company was intending to do.

   b)whether s.313 of the Migration Act 1958 (Cth) required Mr Shiao and his company to give the applicants a statement of services;

   c)The legal consequences following the resolution of these issues.

The agreement

1. Ms Zeng said that in August 2002 she saw an advertisement by the…