Regina v Wanna Matter No Ca 40325/97 [1997] NSWSC 306 (13 August 1997)

Regina v Anwar Sabry Wanna

CA 40325/97

13 August 1997

Gleeson CJ, Mason P, Sheller JA

The Supreme Court of New South Wales Court of Appeal

CA 40325/97 REGINA v Anwar Sabry WANNA

JUDGMENT

GLEESON CJ: The court has before it a question of law reserved pursuant to s72 of the Judiciary Act 1903 (C'th).

On 19 May 1997 the opponent, Anwar Sabry Wanna, stood for trial before his Honour Judge Rummery QC and a jury at the District Court. He was charged with a number of offences against s281 of the Migration Act 1958 (C'th).

In summary, the case for the Crown was that the opponent, for a fee, advised a number of Irish nationals about the making of applications for a visa, and prepared, or helped to prepare, such applications. The evidence of a number of Irish nationals in question was that the opponent provided them with forms of visa applications and assisted them to fill out such forms. However, the evidence did not establish that in any case the visa application forms were actually lodged with what was then the Department of Immigration and Ethnic Affairs. Indeed, part of the grievance of the persons in question concerned the failure to lodge the applications. It is that last circumstance which is relied upon by counsel for the opponent as giving rise to a point of law which, he argues, required that the charges against his client should have been dismissed.

Section 281 of the Migration Act provides that a person who is not a registered agent must not ask for or receive any fee or other reward for giving immigration assistance. For the purposes of the present argument, it has been common ground that the opponent was not at any material time a registered agent, and, further, that the opponent asked for and received a fee.

The critical question is whether the fee was for giving immigration assistance.

Section 276 provides, so far as is presently relevant, as follows:

"276. For the purposes of this Part a person gives immigration assistance if the person uses or purports to use knowledge of or experience in migration procedure to assist an entrance applicant or cancellation review applicant by:

(a) preparing or helping to prepare the entrance application or cancellation review application; or

(b) advising the entrance applicant or cancellation review applicant about the entrance application or cancellation review application."

The present case does not concern cancellation review applications.

Section 275 defines "entrance applicant" to mean "an applicant for a visa under this Act".

Counsel for the opponent argues that, because the visa applications in question were never communicated to the Department of Immigration and Ethnic Affairs, the Irish nationals never became applicants for visas, and therefore never became entrance applicants within the defined meaning of that expression. In the result, so it is argued, even though the evidence established, or was capable of establishing, that the opponent engaged in conduct of the kind described in pars (a) and (b) of s276, his conduct never amounted to assistance to an entrance applicant and therefore could not in law amount to giving immigration assistance within the meaning of the legislation.

Sections 275, 276 and 281 are to be read together. The provisions of pars (a) and (b) of s276 throw light upon the meaning of the expression "applicant for a visa" in the definition of "entrance applicant" in s275.

In relation to the meaning of the legislation, and the approach to be taken to its construction, the decision of the High Court in Cunliffe v The Commonwealth [1994] HCA 44; (1993) 182 CLR 272 is instructive. In the judgment of Dawson J in that case, at p358, there is a reference to the purpose of the legislation as explained at the time of its enactment. The Minister said:

"This initiative reflects the Government's concern over the level and nature of complaints made against incompetent or unscrupulous agents, complaints which would be familiar to many members of this Chamber. It also recognises the fact that many of those who are likely to seek the assistance of agents are among the most vulnerable in our society, sometimes having a poor grasp of English, fear of authority or meagre financial resources.

I do not intend to list comprehensively problems which led to the development of the scheme, but some examples include agents having been paid to lodge applications and then failing to do so, lodging applications without paying the prescribed fees, thereby not giving effect to the application, lodging applications tardily in a way which adversely affects the entitlements of applicants and holding passports as security and then demanding extra payments. There are also examples of agents providing incompetent advice because they lack even a rudimentary knowledge of the Migration Act and Regulations."

I would reject the submission that a person does not relevantly become an applicant for a visa within the meaning of those words in the definition of "entrance applicant" in s275 of the Act unless and until a form of visa application signed by such person, and, presumably, accompanied by the appropriate fee, is communicated to the Department. To give the words that meaning would defeat the evident purpose of the legislation. It would also be inconsistent with the provisions of pars (a) and (b) of s276.

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

It is unnecessary for the purposes of the present case to attempt to identify with precision, and in a manner which has general application, the point at which a person becomes an applicant for a visa within the meaning of s275 of the Act. Something may turn upon the facts and circumstances of particular cases. It suffices for the resolution of the present case to say that a person will relevantly become an applicant for a visa, in circumstances of the kind with which we are concerned, where the person has formed an intention to apply for a visa and has taken a step in the process of making such an application. Such a step would include engaging professional assistance to make the application..

I would propose that the question of law raised for determination should be answered as follows:

Q: Did the indictment charge the accused with matters which in law were capable upon the evidence called at the trial of constituting an offence under s281(1) of the Migration Act?

A: Yes.

MASON P: I agree.

SHELLER JA: I also agree.

GLEESON CJ: The order of the Court is that the question raised for determination is answered as I have proposed and the matter remitted to the District Court to be disposed of according to law.

REGINA v Anwar Sabry WANNA

IMMIGRATION - person not a registered agent receiving fee for immigration assistance - offence may be committed even though no visa application lodged with Department.

WORDS AND PHRASES - "immigration assistance", "entrance applicant".

O R D E R S

Question of law answered as follows:

Q: Did the indictment charge the accused with matters which in law were capable upon the evidence called at the trial of constituting an offence under s281(1) of the Migration Act 1958 ?

A: Yes.