Dahdah v Platinum Distributors Australia Pty Ltd (No 2) - [2022] FCA 416

FEDERAL COURT OF AUSTRALIA
Dahdah v Platinum Distributors Australia Pty Ltd (No 2) [2022] FCA 416

File number: NSD 61 of 2019

Judgment of: BURLEY J

Date of judgment: 22 April 2022

Catchwords:
INDUSTRIAL LAW – claim for unpaid wages and entitlements under the Fair Work Act 2009 (Cth) and relevant industrial award – where respondent sponsored applicant’s visa to work in Australia – whether applicant terminated his employment in June 2015 – application dismissed

CONSUMER LAW – alleged misleading representations regarding respondent’s willingness to apply for permanent residency for the applicant after two years of employment – where representation conditional on applicant continuing his employment for two years – where that condition not met – case not established

Legislation:
Competition and Consumer Act 2010 (Cth) sch 2 ss 4, 18, 31, 236

Evidence Act 1995 (Cth) s 140

Fair Work Act 2009 (Cth) ss 12, 13, 14, 19, 87, 139, 323, 535, 542, 543, 545, 550

Superannuation Guarantee (Administration) Act 1992 (Cth)

Superannuation Guarantee Charge Act 1992 (Cth)

Cases cited:
Association of Professional Engineers, Scientists and Managers, Australia v Wollongong Coal Ltd [2014] FCA 878

Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25; 72 CLR 435

Bluescope Steel (AIS) Pty Ltd v Australian Workers Union [2019] FCAFC 84; 270 FCR 359

Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336

Kelly v Fitzpatrick [2007] FCA 1080

Koutalis v Pollett [2015] FCA 1165; 235 FCR 370

Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908; 238 IR 307

Qantas Airways Ltd v Flight Attendants’ Association of Australia [2020] FCAFC 227; 282 FCR 243

Division: Fair Work Division

Registry: New South Wales

National Practice Area: Employment and Industrial Relations

Number of paragraphs: 258

Date of last submission/s: 19 July 2021

Date of hearing: 28-30 September 2020
20, 23-25 November 2020
18 December 2020
14 May 2021

Counsel for the Applicant: Ms U Okereke-Fisher

Solicitor for the Applicant: Abu Legal Pty Ltd

Counsel for the First Respondent: The First Respondent did not appear

Counsel for the Second Respondent: Mr M Seck

Solicitor for the Second Respondent: Solve Legal Pty ltd

Table of Corrections

12 May 2022 In paragraph 177 line seven, the word “respondent” has been replaced with “applicant”

ORDERS

NSD 61 of 2019

BETWEEN:
JEAN DAHDAH

Applicant

AND:
PLATINUM DISTRIBUTORS AUSTRALIA PTY LTD

First Respondent

JAMES DAHDAH

Second Respondent

ORDER MADE BY:

BURLEY J

DATE OF ORDER:

22 APRIL 2022

THE COURT ORDERS THAT:
1.The application be dismissed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1       INTRODUCTION

[1]

1.1      The proceedings

[1]

1.2      The pleaded case

[3]

1.3      Introduction to the factual dispute

[8]

1.4      Summary of conclusions

[15]

2       THE WITNESSES

[16]

2.1      The applicant’s witnesses

[16]

2.2      The respondent’s witnesses

[20]

3       THE SUBMISSIONS

[31]

3.1      The applicant

[31]

3.2      The respondent

[39]

4       CHRONOLOGY OF BACKGROUND FACTS

[41]

5       THE CREDIT OF THE APPLICANT AND THE RESPONDENT

[86]

5.1      The submissions

[86]

5.2      The credit of the applicant

[89]

5.3      The credit of the respondent

[101]

6       SUMMARY OF THE KEY FACTUAL DISPUTES

[110]

7       REVIEW OF THE EVIDENCE

[121]

7.1      The conversation of 26 June 2015

[122]

7.2      The secondment issue

[142]

7.3      Did the applicant work for other people after October 2016?

[159]

7.4      The 2016 and 2017 group certificates

[172]

7.5      Consideration and findings arising from the evidence concerning the key factual disputes

[201]

8       CONSIDERATION OF THE APPLICANT’S CLAIMS

[214]

8.1 Claim under s 323 of the FW Act

[214]

8.2      An alternative case for unpaid wages from February 2015 until 26 June 2015

[232]

8.3 The claim under the ACL

[246]

8.4      Conclusion

[255]

9       DISPOSITION

[258]

BURLEY J:
1.               INTRODUCTION

1.1 The proceedings

These proceedings primarily involve a claim by the applicant, Jean Dahdah, for unpaid wages and entitlements under the Fair Work Act 2009 (Cth) (FW Act). The applicant’s employer was Platinum Distributors Australia Pty Ltd, a company that was deregistered shortly after the commencement of the proceedings. The respondent is James Dahdah, the sole director and shareholder of Platinum, who is also the applicant’s first cousin.
The applicant is a citizen of Lebanon. Platinum was an Australian company engaged in the import and export of goods. The applicant and Platinum entered into a contract of employment on 2 February 2014, pursuant to which the applicant was to be employed in Australia as an “export coordinator” for an annual wage of $97,500.00. The applicant arrived in Australia in January 2015 on a subclass 457 Visa and in February 2015 began to work under the direction of the respondent.
1.2 The pleaded case
In his Further Amended Statement of Claim the applicant contends that he worked for Platinum from about 17 February 2015 until October 2017 but that, save for limited payments totalling $19,711, he was not paid any wages or other entitlements. He claims that in May 2015 the respondent directed the applicant to work for his father, John Dahdah, at his father’s company Veejay Trans Pty Ltd and that in the period from 26 June 2015 until 17 October 2016 the applicant was seconded to Veejay. The applicant claims that from 17 October 2016 he returned to work at Platinum under the supervision of the respondent but from mid-2017 to October 2017 he struggled to get directions from the respondent in respect of his employment and accepted that by then his employment had come to an end.
The applicant claims that pursuant to ss 87, 323, and 535 of the FW Act he is owed accrued wages, unpaid annual leave pay, and superannuation contributions pursuant to the contract of employment. Alternatively he contends that he was covered by the Clerks Private Sector Award 2010 (Clerks Award) and that he performed duties commensurate with level 2 classification as set out in Schedule A of the Clerks Award. He claims that he is entitled to payment for unpaid wages, leave and superannuation entitlements under the Clerks Award.
The applicant pleads that the respondent was at all material times responsible for the control and conduct of Platinum and that he was “involved in” the contraventions by Platinum and accordingly liable for each of the claims within the meaning of s 550 of the FW Act. He seeks declarations of liability, orders for the payment of compensation in the amount of $286,957.50 plus interest, and orders that the respondent pay to him pecuniary penalties.
The applicant also pleads a cause of action arising under s 18 of the Australian Consumer Law as it appears in Schedule 2 of the Competition and Consumer Act 2010 (Cth) (ACL). A claim pleaded against Platinum, who was named in the Originating Application and Statement of Claim as the first respondent, for breach of contract has been abandoned in light of Platinum’s deregistration.
The respondent denies liability. He accepts that he executed the contract of employment on behalf of Platinum and that he lodged papers for the 457 Visa pursuant to which the applicant, his wife and two children came to Australia. He also accepts that he was at all material times responsible for the management and control of Platinum. However, he contends that on or about 26 June 2015 the applicant ceased providing services to Platinum and that from that date Platinum owed the applicant no obligations as an employer. He pleads in the alternative that from about 26 June 2015 the applicant engaged in industrial action within the meaning of s 19 of the FW Act by failing or refusing to perform any work for Platinum and that accordingly the applicant is not entitled to receive any damages. The respondent raises further matters in defence of the FW Act claims and the claims under the ACL, to which reference is made below.
1.3 Introduction to the factual dispute
These proceedings take on the appearance of something of a family feud. The main protagonists are cousins. The witnesses are for the most part close relatives. Furthermore, the versions of events provided by the applicant and the respondent in their evidence are often diametrically opposed. It is apparent that the conduct of neither is beyond reproach. I have, in considering the evidence, borne in mind that the applicant bears the onus of proof according to the civil standard, as required by s 140(1) of the Evidence Act 1995 (Cth). A number of the allegations made by the parties are of an extremely serious nature. In this context I am conscious that, pursuant to s 140(2), in deciding whether the Court is satisfied that a case has been proved on the balance of probabilities, it is to take into account the nature of the cause of action or defence, the nature of the subject matter of the proceeding and the gravity of the matters alleged, as contemplated in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 at 361-362 (Dixon J).
Many of the witnesses are from the same family and share the same surname. I refer to the main protagonists, Jean and James Dahdah, as the applicant and respondent respectively. Otherwise, I refer to members of the family primarily by their forenames. In so doing I mean no disrespect to any of the individuals concerned.
Several hotly contested factual disputes require resolution before the legal issues between the parties can be addressed.
The first concerns the duration of the applicant’s employment with Platinum. The applicant contends that he remained an employee from 17 February 2015 until October 2017 but that for a period from about June 2015 to October 2016 the respondent instructed him to work on secondment with Veejay, the company owned by the respondent’s father, John. After the applicant had a falling out with John, he was prepared to continue to work at Platinum and claims that he attended at the premises or contacted the respondent every day to work, but the respondent gave him no instructions and in October 2017 he accepted that he had been dismissed and sought work elsewhere.
This version of events gives rise to four disputed areas of fact. First, the respondent contends that the applicant resigned from Platinum or abandoned his employment there on 26 June 2015 because he wished to leave to buy a truck and start his own business. Secondly, the respondent denies that the applicant worked for Platinum on secondment at Veejay. Rather, he submits that the applicant left his employment at Platinum in order to work at Veejay as a labourer. Thirdly, the respondent denies that after the applicant ceased to work at Veejay he returned to Platinum, made himself available to work on a daily basis or contacted him regularly asking him for work. Fourthly, the respondent contends that the evidence supports a finding that from August 2016 the applicant was engaged in work for himself or third parties, which is inconsistent with his story that he had remained working at Platinum.
One additional factual dispute warrants introduction. It concerns two documents upon which the applicant relies to support his case. They are the 2016 and 2017 group certificates issued by the Australian Taxation Office (ATO) in respect of the employment of the applicant by Platinum. The applicant contends that they provide strong corroboration for his claim to have worked for Platinum until October 2017. The respondent claims that he falsely procured them to be prepared for Platinum because the applicant had threatened to kill him if he did not assist him to obtain a permanent residency visa.
I consider the conflicting evidence in relation to these disputes in section 7 below before turning to consideration of the ultimate issues between the parties.
1.4 Summary of conclusions
For the reasons set out in more detail below I find that the applicant has not established the breaches alleged. The application must be dismissed.
2. THE WITNESSES
2.1 The applicant’s witnesses
Jean Dahdah is the applicant. He was born in 1970 and grew up and lived in Lebanon until 2015. Prior to his departure from Lebanon his primary occupation was as a bus driver for a school. Before the applicant came to Australia he had a limited ability to speak English and little ability to read or write in English. He gave four affidavits, each of which were translated into Arabic before they were affirmed. He gave oral evidence and was cross examined with the assistance of an interpreter.
In his affidavit in chief dated 30 June 2019, the applicant describes how he came to Australia and provides his version of events concerning the duration of his employment with Platinum and the instructions that he received from the respondent. The affidavit is relatively brief and exhibits a limited number of documents. In his second affidavit, dated 24 April 2020, the applicant provides a very detailed response to the affidavit in answer supplied by the respondent. In his third affidavit, dated 3 June 2020, the applicant provides details of payments that he received from Platinum. In his fourth affidavit, dated 7 August 2020, he responds by paragraph to an affidavit made by the respondent in answer to the applicant’s reply affidavit.
Jousephine Dahdah is the sister of the applicant and the cousin of the respondent. She gave one affidavit about two meetings that she recalled attending, one in about July 2017 and another in September 2017. She speaks fluent English and Arabic and was cross examined.
Jouliana Dahdah is the daughter of Jousephine, niece of the applicant and a cousin of the respondent. She lives with her parents. She gives evidence of her recollection of a meeting that she attended in mid-September 2017. She is fluent in English and Arabic and was cross examined.
2.2 The respondent’s witnesses
James Dahdah is the respondent. He was admitted to practice as a solicitor in August 2017 and studied law part time from 2011. Prior to commencing his work as a solicitor he was the sole director and shareholder of Platinum, which traded in the import and export of goods to and from Australia. He is of Lebanese heritage and speaks English and Arabic.
The respondent provided a first affidavit on 19 September 2019, in which he sets out his version of events concerning his recruitment of the applicant to work for Platinum and the work that the applicant performed. The respondent affirmed a second affidavit on 19 July 2020. In it he provides a paragraph by paragraph response to the applicant’s second affidavit.
On 17 September 2020 the respondent provided a third affidavit in which he gives evidence about the loss of relevant records from Platinum, the payment of salary to the applicant and exhibits letters to the ATO, the Department of Home Affairs and also the Legal Services Commissioner about his fabrication of certain group certificates.
On 25 September 2020 the respondent swore a fourth affidavit explaining in more detail what he considered the applicant’s role at Platinum to be. On 16 November 2020 the respondent swore a fifth affidavit which contains evidence concerning mobile telephone numbers for certain relevant individuals.
John Dahdah is the father of the respondent and the applicant’s uncle. He is a director of Veejay, a company that has been involved in the provision of demolition and excavation services within the construction industry since 2007. He gives evidence in his first affidavit that on about 15 January 2015 the applicant came to live at his home in Bossley Park, Sydney where he stayed until October 2016, and about work that the applicant performed for Veejay from July 2015 until October 2016. In his second affidavit John replies to the applicant’s affidavit of 24 April 2020 and the affidavit of Jousephine affirmed on 2 June 2020. He was cross examined.
John gives evidence that on about 5 July 2015 the applicant asked him for a job and that he started to work for Veejay the next day. He gives evidence that the applicant was a poor worker, that he had received a complaint that the applicant had fallen asleep on the job, that he had rolled an excavator on its side, that he had used a scissor lift against instructions and caused damage to the sprinkler system at a site and that he had damaged a truck and sought to have it repaired without John’s knowledge. John gives evidence that after the last incident he informed the applicant that he would no longer be able to work for him, whereupon in October 2016 the applicant ceased to attend work at Veejay and stopped living at John’s home. John also gives evidence that from early December 2015 until February 2016 the applicant left Australia to return to Lebanon.
Elie Atie is a motor mechanic who has known the respondent for 21 years and who leased part of his premises in Yennora, Sydney, to Platinum. He gives evidence about his conversations with the applicant and the respondent in 2015. He gave one affidavit and was cross examined.
Habib Boustany has been a friend of the respondent for many years. He gives evidence in his affidavit about the disputed departure of the applicant from his employment at Platinum. He gave one affidavit and was cross examined.
Danielle Gittany is the sister of the respondent. In her affidavit she gives evidence about her recollection of a conversation that she heard between the applicant and the respondent. She gave one affidavit and was cross examined.
Saliba Gittany is Danielle’s husband and John’s son-in-law and has known the applicant since 2012. He gives evidence of conversations he had with the applicant and the respondent in 2015 and 2016. He gave one affidavit and was cross examined.
Maciej Nowak is an operations manager with Trades Unlimited who has known John for about 7 years. In his affidavit he gives evidence that he was introduced to the applicant on a site at which Veejay was working and understood that the applicant worked for John from July 2015 until October 2016. He was not cross examined.
3. THE SUBMISSIONS
3.1 The applicant
The FW Act Claims. The applicant contends that by reason of the terms of his contract of employment with Platinum he was a “national system employee” under s 13 of the FW Act and that Platinum was a “national system employer” under s 14. He contends that the payment of annual wages is an “entitlement under a contract” between him and Platinum that relates to a subject matter described in s 139(1) of the FW Act and that accordingly it falls within the definition of a “safety net contractual entitlement” in s 12. This is an entitlement that may be enforced by him in this Court pursuant to ss 542 and 543 of the FW Act. He contends that by failing to pay amounts payable to him in full, and at least in monthly amounts, Platinum acted in breach of s 323(1) of the FW Act and that the Court may make orders for him to recover compensation for any loss as a result of contravention of that civil remedy provision pursuant to s 545 of the FW Act, citing Association of Professional Engineers, Scientists and Managers, Australia v Wollongong Coal Ltd [2014] FCA 878 at [31]-[32] (Buchanan J), Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908; 238 IR 307 at [119] (Jessup J) and Qantas Airways Ltd v Flight Attendants’ Association of Australia [2020] FCAFC 227; 282 FCR 243 at [68] (Jagot and Wheelahan JJ).

The applicant submits that for contravention of s 323 to be established he must demonstrate: (a) that Platinum is an employer and that he was an employee for the purpose of the FW Act; (b) that Platinum failed to pay “amounts payable to the employee”; (c) that the amount payable was in relation to his performance of work as an employee; and (d) that the amount payable was not paid in accordance with s 323(1)(a) to (c). This, he submits, is established because Platinum failed to pay him at least monthly for the term of his employment from 17 February 2015 until October 2017 (employment period). He additionally advances claims for unpaid annual leave and unpaid superannuation during that period. The applicant submits that the respondent is personally liable as a person who is involved in the contraventions of Platinum pursuant to ss 550(1) and 550(2)(a) and (c) of the FW Act.
The applicant contends that in May 2015 the respondent directed him to go to work for his father, John, and assured the applicant that Platinum would still pay his salary whilst he did so. He submits that during the secondment, the applicant worked on a full-time basis and continued to report to and take directions from the respondent as his direct supervisor and manager. He submits that in contravention of his contract of employment the respondent instructed the applicant to perform work that was not in conformity with the role nominated for him in the contract of employment as Export Coordinator. He contends that after the secondment period ceased on 17 October 2016 the applicant returned to work for Platinum under the direction of the respondent until October 2017. By that point he accepts that he struggled to receive directions or wages and was forced to accept that Platinum had terminated the contract and that he had by then been constructively dismissed.
The applicant places emphasis upon a number of factual matters. He relies on the contract of employment with Platinum that the respondent had drawn up in order to apply for the 457 Visa. He disputes the veracity of the respondent’s evidence that the employment relationship was undermined by the applicant’s inability to communicate in English. He submits that the respondent misled the Department of Immigration in documents supporting the visa application as to the need for the applicant to speak English for the role, pitching his visa application as being for a person with skills in communicating with persons in the Middle East. He submits that at the time of the application the relevant visa requirements were such that a person being paid a base salary of at least $96,400 per annum was exempt from English language requirements, citing IMMI 14/009 – Tests, Scores, Level of Salary and Exemptions to the English Language Requirement for Subclass 457 (Temporary Work (Skilled) Visas. The applicant submits that the wage of $97,500 in the contract of employment was designed by the respondent to circumvent the English test requirements. He further submits that this was a significantly higher wage than the USD12,000 per annum that the applicant was earning as a bus driver in Lebanon.
The applicant further submits that penalties should be imposed on the respondent for his breaches of the FW Act. In this regard he cites Kelly v Fitzpatrick [2007] FCA 1080 (Tracey J) concerning the assessment of penalty.
In his closing submissions the applicant confines his misleading and deceptive conduct claim to one based on the fact that when the respondent arrived in Lebanon on his honeymoon in October 2014 he had said to the applicant:
Congratulations! You got your visa to go to Australia. After two years you can stay in Australia permanently…Please resign from your current job and join us in Australia.
The applicant contends that this amounted to a representation that the respondent would apply for permanent residency for the applicant when he was two years into the term of his contract of employment. He failed to do so. The applicant contends that this amounted to a representation made in trade and commerce that was misleading or deceptive or likely to mislead or deceive in breach of ss 18 and 31 of the ACL. The applicant contends that the representation was misleading because the respondent did not at the time it was made disclose that it was a requirement for the 457 Visa and also for a permanent residency visa that he pass an English language proficiency test. He submits that in reliance upon the representation he travelled to Australia, abandoning a comfortable life in Lebanon and brought his family to Australia and by reason thereof suffered loss and damage.
The applicant makes detailed submissions going to the credibility of the witnesses. He submits that the respondent is not a witness of truth pointing to matters that he contends demonstrate that he made inconsistent statements, provided misleading information and engaged in blatant contravention in a wide spectrum of Australian legislation. He submits that the respondent made false representations to the Australian Taxation Office and the Department.
3.2 The respondent
The respondent denies that Platinum engaged in any misconduct as alleged arising under the FW Act but accepts that if the allegations are proven, his role in Platinum was such that he was involved in the contraventions within s 550(1) of the FW Act. He submits that the primary contest between the parties is on a factual level and contends that the following factual issues arise:
(a)Did the applicant receive wages, annual leave and superannuation from Platinum between February 2015 and 26 June 2015 in accordance with the contract of employment?
(b)Did the applicant resign from or abandon his employment with Platinum on 26 June 2015?
(c)If he did not, when did the applicant cease his employment with Platinum?
(d)If he continued to be employed after 26 June 2015 was he entitled to receive wages and other entitlements, and if so, how much is he owed?
(e)Is the applicant covered by the Clerks Award as alleged and if so, did he perform duties and responsibilities consistent with Level 2 classification?
(f)Was the representation set out in [36] above made?
(g)If it was, was it misleading or deceptive in trade or commerce and did the applicant suffer any loss?
The respondent contends that a key issue in the case is the credit of the main protagonists. He submits that the applicant was not a witness of truth for a number of reasons. The respondent accepts that certain employee and financial records have not been retained by his accountant and as a consequence of Platinum’s deregistration and that this is unsatisfactory. However, he submits that there is no evidence or even suggestion that the respondent deliberately engineered this situation to avoid legal scrutiny, and the absence of records can be explained by the fact that Platinum was a small business which relied on its accountant to assist in the keeping of records. He also admits that he made a number of regrettable errors of judgment in failing to report the cessation of the applicant’s employment to the Department of Home Affairs and in creating false 2016 and 2017 group certificates. In his evidence he contends that he asked his accountant to create those summaries as a result of a threat made to him by the applicant to kill him and to “get him off his back”. He submits that he has disclosed these mistakes to the authorities and exhibits copies of letters to the Department of Home Affairs, the ATO and the Legal Services Commissioner, none of whom have taken any action. The respondent submits that whilst these lapses of judgment are regrettable, the context reveals that he acted in accordance with his values and that they do not demonstrate that his evidence is not to be accepted.
4. CHRONOLOGY OF BACKGROUND FACTS
Much of the factual basis for the case is in dispute. In this section I set out my findings of fact in relation to background matters that are established by the evidence.
In 2011 Platinum was incorporated, with the respondent as its sole director and shareholder.
In 2012 Platinum reported in its Financial Statements a loss of $236,000. In 2013 it reported a gross profit of $122,544 and the payment of “salaries and wages” of $12,000.
On or about 14 November 2013 the Department recorded receipt of a Business Sponsorship Application made by the respondent on behalf of Platinum for the sponsorship of the applicant. The application required information including a “detailed explanation which outlines your reasons” for proposing that the applicant receive a sponsorship and invited the applicant to lodge further documents in support of the application. The application records a statement made by the respondent to the effect that Platinum had two professional employees, that the gross payroll expenditure of the business was $12,000. It included a statement that the sponsor (Platinum) agreed that it was willing to meet its obligations as a Business Sponsor and a declaration that the details on the form were correct.
On 3 December 2013 a representative of the Department sought further information from Platinum about the business sponsorship application. The respondent replied on 7 January 2014 providing documents including;
(a)a Business Plan dated December 2013;
(b)a letter of reference from Australian Tax Services, signed by Mark-Anthony Basha, a Tax agent acting on behalf of Platinum; and
(c)a letter from Rhyder Industries Pty Ltd dated 19 December 2013 (Rhyder letter) stating: “This letter is to verify that invoices [numbered] were in relation to training provided to [Platinum] for the employee Mrs Vivienne Dahdah”. Rhyder Industries is a company of which the respondent is the sole director and shareholder.
The Business Plan commences with an Executive Summary which says:
James Dahdah is the sole director for the business Platinum Distributors Australia Pty Ltd. It commenced operating in 2011 and has displayed a turnover of over $500,000 in the first year of operation, increasing to $700,000 in the following year….The business imports branded food and beverage items and genuine automotive parts. It also exports Australian made products to the foreign markets such as the Middle East.
…
This business plan has been written to support an application for sponsorship of Mr Jean Dahdah as the Import and Export Coordinator to assist in the successful running and expansion of the business.
The Business Plan is clearly directed to extoll the virtues of the company and to support a visa application for the applicant. It includes some clear falsehoods and exaggerations. For instance, the statement that Platinum had a turnover of $500,000 in its first year was plainly incorrect, a proposition that the respondent accepted during cross examination.
Under the heading “Business Profile” it says:
…The business has all the equipment and facilities required to grow the business and focus more on exporting to the Middle East, however, a coordinator with the relevant knowledge, language skills and experience of the Middle Eastern market is necessary to achieve this. For this reason [the respondent] would like to sponsor [the applicant] as the required candidate.
Later, the document provides that the Import and Export Coordinator role is a key one that requires business experience in the importing and exporting industry and also “knowledge of the Middle Eastern market, existing strong networks and strong language skills of this particular market”. Under the heading “Sponsorship Requirements” the Business Plan identifies the duties and responsibilities of the Import and Export Coordinator, and the skills, qualifications and experience required. Those include “identifying local and overseas business opportunities”, “excellent communication skills and fluent in the relevant Middle Eastern languages” and strong networks. It says that the respondent has failed to find a locally based candidate for the position. It says:
…[the applicant] has worked in product development in both the USA and the Middle East and has held the role of Import and Export Coordinator in the Middle East….In addition, [the applicant] has extensive knowledge and language skills required to work and communicate in the Middle Eastern market. He has strong networks and relevant key industry relationships that will give the business the competitive advantage it requires to succeed in the industry.
The respondent contends that in about January 2014 the applicant supplied him with a resume, which he exhibits to his affidavit. The document is half a page in length and undated. It refers to an “Objective” which is said to be “using my skills and experience in assisting organizations to build a larger more successful clientele”; “Experience” which was said to be “Import Export Manager/Co-ordinator at Hope Construction SARL in North Lebanon from March 2002 until December 2009”; “Education” at De La Salle, North Lebanon, 1985; “Interests” and “References” (available on request). No reference is made to the applicant’s work as a bus driver for De La Salle College. The applicant disputes that he provided this document to the respondent.
On 2 February 2014 the applicant and Platinum entered into the contract of employment that had been prepared by the respondent. It relevantly provided as follows:
Position
Export Co-ordinator
Salary
For the position of Export Co-ordinator you will be paid the base salary totalling $97,500.00
Change to Terms of Employment
This contract will hold for the full term mentioned within, if the reasons of unusual circumstances or undue hardship you will find it necessary to negotiate part or this entire contract you are encouraged to first speak with the Managing Director.
Term of Contract
The duration of employment is for a 4 years period with an option to renew.
Entitlements
Annual Leave:           as accrued under current Fair Work Australia Commission
Personal Leave:          as accrued under current Fair Work Australia Commission
Superannuation:         in accordance with current legislation.
The contract of employment also allowed for one months’ provision of notice of termination and contained terms relating to confidentiality, disciplinary proceedings and dispute resolution. It was signed by the applicant and the respondent.
On 5 March 2014 the Department acknowledged receipt of $330 and an application made by the respondent for a 457 temporary work visa for the applicant. The respondent gives evidence that he lodged the application for the applicant and his family on that day.
The respondent gives evidence that on 10 March 2014 the applicant provided him with a reference from a previous employer, Hope Construction. This, he said, “supported my understanding that [the applicant] possessed the required skills and experience required to perform the role of Import/Export coordinator with the company”.
The Hope reference is controversial. The document is dated 10 March 2014 and is on letterhead entitled “HOPE Construction SARL” and signed by Salem ElCheikh who, the oral evidence revealed, is the applicant’s brother in law. It provides:
Mr Jean Dahdah was employed by our company between the period of March 2002 and December 2009 in the capacity of import and export manager/Co-ordinator.
He had been entrusted with various tasks during his employment ranging from meetings and liaising with customers in Lebanon & the Middle East to co-ordinating shipments from our suppliers in various global locations.
His list of duties included
ŸPinpointing commercial prospects both domestically and abroad
ŸIdentifying a range of products and services to be provided
ŸCoordinating with suppliers and merchants regarding orders and products
ŸMaintaining a constant assessment of regulatory and legislative developments
ŸCarry out and retaining after-sales service procedures
ŸRecognizing products that would suit our business plan for growth and expansion in the Middle East marketplace from USA and Europe.
We feel that Jean has the skills required to execute his duties in the role with out any fault. His ability to accurately identify potential markets inside Lebanon & the Middle East was an integral part of the ongoing success of our organisation. Likewise his ability to identify products from suppliers in western countries that would be suited in Lebanon & the Middle East was astonishing.
We wish Jean all the success in the world in his future endeavours and are certain that his skills with [sic] undoubtedly have a positive impact on any organisation he would join.
On 30 June 2014 the Department recorded receipt of an application for a Long Stay Temporary Business Visa related to the previously submitted Business Sponsorship Application. This was lodged by the respondent and included his contact details. The applicant was the primary applicant and his wife Berthe and children Elie and James were secondary applicants. The application records that the applicant did not have English as his first language and that he had not undertaken an English test within 36 months of the application. It also records that his guaranteed annual earnings and base rate of pay were $97,500.
On 14 October 2014 the Department sent the applicant a letter stating that the 457 Visa applications for the applicant and his family had been approved. The notification provides that the 457 Visa was granted on the basis that his occupation was “Importer or Exporter”, that the base salary was $97,500 and that it was valid until 14 October 2018. It provided that if he stopped working for his sponsor he must find another employer willing to nominate him, apply for another type of substantive visa or leave Australia. The notification provides that the sponsor was Platinum. It was emailed to the respondent at the email address [email protected].
The respondent was visiting Lebanon on his honeymoon at the time that the notification was received from the Department and informed the applicant in person of the approval.
On 14 January 2015 the applicant arrived in Australia. Platinum paid for his aeroplane ticket at the request of the applicant. The applicant went to live with the respondent’s parents at Bossley Park where he stayed until October 2016.
On about 17 February 2015 the applicant commenced working for Platinum at its premises in Yennora.
The applicant returned to Lebanon for the period from 23 May 2015 until 9 June 2015. There is a minor dispute as to the reason for the trip. The applicant contends that he was sent to Lebanon to sell remote car keys on behalf of Platinum. The respondent contends that the applicant returned to Lebanon because their relationship had become tense after it became apparent that the applicant was unable to perform tasks expected of him, particularly because he could not speak or write in English. He claims to have approved the trip so that the applicant could see his family and also to see what business he could drum up for Platinum. The applicant gives evidence that the respondent paid for the ticket but insisted that he would deduct this from his wages.
The respondent contends that on 26 June 2015 he and the applicant had conversations that led him to the view that the applicant had resigned his position with Platinum. I return to this important subject later in these reasons.
The respondent exhibited to his first affidavit minutes of a meeting of Platinum dated 30 June 2015 (June 2015 minutes) at which the respondent and Mr Basha were present. They include under the heading “Resolved”:
James confirmed that Jean Dahdah resigned to buy a truck and contract on his own.
The applicant contends that in May 2015 the respondent told him that there was not enough work for him at Platinum and instructed him to work for Veejay from July 2015. The respondent denies that this was so, and contends that in early July 2015 the applicant, having abandoned his position at Platinum, obtained work for Veejay. I return to this subject also.

On an unspecified date in 2016, prior to the issue of the applicant’s 2014/2015 tax assessment, a tax return was prepared on behalf of the applicant by Ms Anna Leksinska. It describes the applicant’s occupation as “construction worker – earthmoving labourer”. The applicant contends that it was prepared by the respondent and given to him to sign. The respondent denies that this was so. I address this dispute in more detail below.
On 15 June 2016 the ATO issued a notice of assessment to the applicant of his income tax for the year ended 30 June 2015 (2015 tax assessment). This was not provided by applicant in his affidavit evidence, but was produced by him on discovery. It contains the following relevant details:
·It is addressed to the applicant at a location in Ermington NSW;
·The taxable income was $44,600;
·The tax is assessed at $6,042;
·The PAYG credits and other entitlements are assessed at $13,000;
·A refund to the applicant is assessed at $6,398.
On 15 June 2016 the applicant’s son Elie, then aged 18 years old, arrived in Australia and started to work with John at Veejay on the next day.
On 21 June 2016 the respondent received the applicant’s tax refund of $6,398. He has not paid this money to the applicant despite being aware that an attempt to pay it into his bank account failed.
An undated PAYG summary for year ending 30 June 2016 (2016 group certificate) is exhibited to the first affidavit of the applicant. It provides:
(1)The payee is Jean Dahdah with his tax file number noted;
(2)The period of payment is 1 July 2015 until 30 June 2016;
(3)The gross payments were $97,500;
(4)The total tax withheld was $26,004;
(5)The payer’s name is Platinum;
(6)The signature of the authorised person was of the respondent dated 20 September 2017.
On 16 December 2016 the applicant flew to Lebanon.
On 28 February 2017 the applicant returned from Lebanon.
On 17 March 2017 Matthew Semaan of CK Migration Law sent an email addressed to the applicant but copied to the respondent which indicates that the respondent had asked him to assist the applicant in his application to the Department of Immigration and Border Protection to apply for a temporary residence visa. The email attaches a letter containing an Agreement for the Provision of Migration Services, a visa request document and a client information questionnaire. The respondent’s evidence is that he did not send the applicant to see Mr Semaan. I address this disputed detail later in the reasons.
On 22 May 2017 the applicant flew to Lebanon.
On 16 June 2017 the respondent was admitted as a solicitor.
On 22 June 2017 the applicant returned to Sydney from Lebanon.
A second undated PAYG summary, this time for the year ending 30 June 2017 (2017 group certificate), is in evidence which provides the following relevant information:
(1)The payee is Jean Dahdah with his tax file number noted;
(2)The period of payment is 1 July 2016 until 30 June 2017;
(3)The gross payments were $40,625;
(4)The total tax withheld was $10,783;
(5)The payer’s name is Platinum.
On 9 July 2017 the respondent sent a text message to the applicant saying “…we need to talk importantly. Immigration spoke with me”.
The respondent claims that he received the 2016 group certificate from his accountant Anna Nawrocka on 30 September 2017.
On 3 October 2017 the respondent had an exchange of text messages with Jousephine in which she asked him to send Jouliana the 2017 group certificate, and he replies, saying that he would send it as soon as his accountant was “finished with the company stuff for last year”. The respondent supplied the 2017 group certificate to Jouliana after he received it from his accountant on 19 October 2017.
On 10 October 2018 the applicant wrote a letter to the Department of Home Affairs in which he said that:
(a)he is currently in Australia on a 457 work visa which is due to expire on 14 October 2018;
(b)his sponsor is the respondent who had promised to pay him all outstanding money owed to him within six weeks before the end of his visa;
(c)he had planned to depart Australia on 13 October 2018 but could not because he is owed three and a half years’ wages in the amount of $427,050;
(d)he received $19,440 of the total amount owing, and the outstanding balance is $407,650;
(e)in 2017 he went to Lebanon and borrowed USD$100,00 from a money lender on terms that he pay it back with 20% interest upon his return from Australia on 18 October 2018;
(f)he appointed a lawyer in Lebanon to negotiate a settlement of this loan and to give him more time to get the money and that in response:
The lender told my lawyer that if I go back without his money he will kill me and my family (letter from the lawyer is attached).
(g)he is taking legal action against Platinum and the respondent and that he will provide the Department with the application and evidence; and
(h)he seeks a temporary protection visa in the meantime until the proceedings are solved.
On 13 October 2018 the applicant lodged an application for a protection visa.
On 23 January 2019 Platinum was deregistered.
On 6 December 2019 the applicant was examined by an officer of the Department of Home Affairs about his claims for protection (protection interview). The respondent relies on the transcript of this interview to supply evidence of inconsistent statements made by the applicant during the course of this interview for a protection visa.
On 12 September 2020 the solicitors representing the respondent wrote to the Legal Services Commissioner, informing them that the respondent was admitted to practice as a solicitor on 16 June 2017 and that he was a director of Platinum until it was deregistered in 2019. The letter states that Platinum had sponsored the applicant for his 457 Visa and that the applicant had resigned his position in June 2015 but that the respondent is “now aware” that he was obliged to notify the Department of Home Affairs of the resignation. He did not do so. The letter states that the applicant “threatened him physically by saying that, unless he was able to continue to demonstrate…that he was still employed by [Platinum], [the applicant] would harm him”. The letter states that “under such duress” the respondent directed that group certificates be issued to the applicant for the years ended June 2016 and June 2017 and that tax be paid accordingly to the ATO. The letter states that the respondent accepts that he was wrong to have done so and attaches letters addressed to the ATO and the Department of Home Affairs. It concludes by stating that the applicant’s employment is currently before the Court and that these matters have been drawn to its attention.
In letters to the ATO and the Department of the same date the solicitors for the respondent admit to the falsity of the 2016 and 2017 group certificates and admit to the failure on the part of the respondent to notify the departure of the applicant from Platinum respectively.
5. THE CREDIT OF THE APPLICANT AND THE RESPONDENT
5.1 The submissions
Each party criticised the evidence and challenged the credit of the other. The respondent submits that the applicant’s account of events cannot be believed. He submits that the version of events offered is improbable, often internally inconsistent and contrary to that of disinterested witnesses insofar as it concerns key events such as conversations concerning his resignation. He submits that the applicant gave evasive, argumentative evidence that was motivated by his desire to obtain a permanent residency visa in Australia.
The applicant submits that the respondent was not a witness of truth. He submits that the respondent made inconsistent statements, provided misleading information to the Court and resorted to silence and omission of critical information in support of his case.
For the reasons set out below, I have serious reservations as to the reliability of both the applicant and the respondent.
5.2 The credit of the applicant
I generally found the applicant to be a poor witness. He is 50 years of age and grew up in Lebanon with no formal qualifications after high school. His evidence is that he worked as a bus driver for 13 years before coming to Australia. He gave his oral evidence with the assistance of an interpreter. He has resided in Australia since 2015 and the Australian habits and the legal system are no doubt unfamiliar to him. These matters must be taken into account when considering matters of credit. Nevertheless, I found aspects of his evidence to be unsatisfactory such that I find it difficult to accept his evidence as truthful unless it is supported by corroborating material. I refer to relevant aspects of his evidence elsewhere in these reasons, but add to those as follows.
First, the applicant’s evidence as to his experience and qualifications prior to leaving Lebanon was opaque and contradictory. In this regard, it may be noted that in his evidence in chief the respondent exhibited the Hope reference and a resume that he submitted in documents in support of the applicant’s 457 Visa. In his detailed affidavit in response the applicant did not deny the existence of the Hope reference, dispute the evidence given that he had supplied the Hope reference to the respondent or deny the truth of its contents. The author of the Hope reference, Mr ElCheikh, is the applicant’s brother in law.
In his oral evidence the applicant initially accepted that at the request of the respondent he had gone to Mr ElCheikh to obtain a reference but he said that he could not remember what was in the letter. A little later, he said that it was the respondent, not he, who had first spoken to Mr ElCheikh. Significantly, he also said that he had never worked for Hope Construction during his time in Lebanon. When confronted with the proposition that he must have known that he had been asked to obtain the letter to demonstrate that he had credentials working as an import/export manager, he said that he was aware that he had sought a letter from an import/export company in Lebanon but did not know what the letter was about. A short while later he gave evidence that he now understands that the Hope reference contains lies about his work experience because he had never worked for that company but that he only discovered the falsehood during the course of his cross examination. That evidence is not credible. Each of the respondent’s affidavits and exhibits were translated for him and the applicant filed a detailed affidavit responding to the respondent’s first affidavit. When confronted with that fact, the applicant gave evidence that he remembered the letter, but did not know what it was used for. He adhered to his evidence that he had not worked for Hope Construction and said that he had worked as a bus driver for a school from 2003. He repeated his evidence that the reference to him working for Hope Construction was false. I do not accept that the applicant did not know the contents of the Hope reference or why it was used.
Secondly, in his oral and written evidence the applicant denied that he had provided a resume to the respondent in support of his visa application. He also gave evidence that he did not know what was contained in it. Having regard to the evidence given by the respondent on this subject (to which I refer in section 5.3 below) I am left in a considerable state of uncertainty as to who prepared the resume.
Thirdly, in his first affidavit, the applicant’s evidence was that the respondent had offered him a job as an export coordinator. The applicant subsequently changed his evidence in his second affidavit (of 24 April 2020), where he denied the substance of conversations deposed to by the respondent to the effect that they had ever discussed the work that he would be doing upon his arrival in Australia. In the course of his cross examination the applicant confirmed that he had signed the contract of employment, but said that he only did so because the respondent had asked him to. He said that he did not know or understand the position or understand that he was offered the position of “Export coordinator” or that he was being sponsored to fill that role. His final position, stated in his oral evidence, is that whilst he knew of the name of the job he was doing, he did not have an understanding of what it entailed. I do not accept that evidence as credible.
In the applicant’s personal particulars for assessment provided to the Department in support of his application for a protection visa, dated 10 October 2018, the applicant states he was “self-employed” in the import/export business from July 2006 until March 2010 in Lebanon. He makes no reference to any other employment at all, whether at the school as a bus driver or with Hope Construction. None of the applicant’s affidavits affirmed after he had received the respondent’s written evidence addressed or denied the evidence given by the respondent that the applicant had provided the Hope reference to him or challenged the correctness of the respondent’s understanding that the applicant had worked in import/export.
I do not accept that the applicant was so naïve as to travel to Australia with no idea as to the work that the respondent would ask him to perform, especially given that he had executed the contract of employment. I consider it most likely, amongst the conflicting versions of events offered by the applicant in this regard, that the applicant and the respondent did discuss the type of work that he would be doing. I consider it likely that the applicant was well aware from discussions with Mr ElCheikh of the contents of the Hope reference. Whilst, for the reasons set out below, I am not confident to make a finding as to who prepared the resume, I consider that the applicant was aware that his visa application was being put forward on the basis that his work experience was such that he was suited to perform the role of export coordinator and that he was content to sign the contract of employment because he had a broad understanding of what that entailed.
Fourthly, the applicant also gave inconsistent evidence about the work that he actually did while at Platinum. In his first affidavit of 30 June 2019 he asserted that he worked as an export coordinator for three weeks after he arrived in Australia. In documents filed in support of his application for a protection visa he claimed to have worked in import/export until October 2018, whereas in his interview with the Department of Home Affairs in December 2019 he stated that he never worked in the role of export coordinator. In his pleaded case the applicant contends that he worked as a clerical employee covered by the Clerks Award, however, in cross examination he denied ever examining any paperwork, completing any forms, performing any clerical duties or working as a clerk. The varying versions of events do not add to the applicant’s credibility. Nor do they support the contention that the work that he performed was covered by the Clerks Award.
Fifthly, the applicant also gave inconsistent evidence about the duration of his employment with Platinum. In his first affidavit he claimed that his employment ceased in August 2018. In his second, he claimed that it ceased in October 2017. In his application for a protection visa dated 13 October 2018, prior to the commencement of these proceedings, the applicant claimed that he remained an employee with Platinum as at that date. In his protection visa interview, he changed the termination date to 2016. In cross examination the applicant gave unsatisfactory explanations for these changes.
Sixthly, in the letter that the applicant wrote in support of his protection visa on 10 October 2018 he referred to having borrowed USD100,000 from a money lender and that when he engaged a lawyer to negotiate a settlement of the debt he claimed that the lender had told his lawyer that if the applicant did not return to Lebanon with the money on 18 October 2018 he would kill the applicant and his family. In his affidavit evidence the applicant claimed that he had borrowed not USD but AUD100,000 to support his family. This later claim was shown in cross examination to be rife with inconsistencies. For instance, in his protection visa interview the applicant initially claimed that he had borrowed two amounts from the money lender being USD17,000 and USD40,000, but later he said that he had borrowed the USD40,000 in two instalments of USD15,000 and then USD25,000. He also claimed in that interview that his wife had borrowed up to USD15,000. In cross examination in the present proceedings he said that he had borrowed multiple amounts, rather than a single amount, which totalled USD72,000, which is somewhat less than his initial claim to the Department of USD100,000 and slightly less than the claim of AUD100,000. The applicant also gave inconsistent evidence regarding the amounts of money that he brought with him from Lebanon to Australia, as to which see [169] below.
Furthermore, in support of the protection visa the applicant supplied the Department with a letter from a lawyer representing him in Lebanon. In his oral evidence the applicant disavowed that the letter was written by the lawyer on his behalf, instead (confusingly) contending that the letter was written on behalf of the creditor who had threatened to kill the applicant if he did not repay the money owed. It is not apparent why the applicant took this position in his oral evidence. It is wholly inconsistent with his letter to the Department in support of his application. Whatever the cause, it is apparent that the applicant’s oral evidence in this regard varied significantly from that which is apparent from the written materials upon which he relied, apparently to meet what he considered at the time to be the convenience of his own case.
Having regard to these and other discrepancies in the evidence of the applicant, in my view the applicant has a demonstrated preparedness to tell different stories of the same events, often with significantly varied details. They suggest that he either does not have a clear recollection of the events to which he refers or that the version of events given is fabricated, which causes me to doubt that many of those events occurred at all, or in the manner described in his evidence.
5.3 The credit of the respondent
I formed an unfavourable view of the respondent’s credit. The oral evidence he gave was at times evasive or inaccurate where he, I infer, considered it expedient for the interests of his case. I also find that as a matter of general approach the respondent is a person who has been prepared to take a cavalier attitude to the truth in his general conduct, including in the lodgement of formal documents to government entities. I have made some findings in this regard in the course of the balance of these reasons. I provide some further observations going to my view of the respondent’s credit below.
First, I find that the respondent is a person who is prepared to write and authorise the presentation of formal documents to various governmental authorities knowing them to be false. A first example may be seen in relation to the 2016 and 2017 group certificates, to which I refer in more detail in section 7.4 below. The respondent now admits that they were false documents that he directed his accountant to create. In section 7.4, I have rejected his evidence that he caused those documents to be concocted because the applicant made death threats to him. I consider that the respondent determined that it was more convenient to his interests that he deceive the ATO in order to get the applicant “off his back” than that he adhere to his responsibility to the ATO to tell the truth. A second example arises in the context of the respondent’s admission that he failed to notify the Department of the fact that the applicant had ceased to work for Platinum at the time that the applicant ceased in his employment. This was in breach of his obligations as the director of the company that sponsored the applicant under his 457 Visa. Despite the content of his letter of 12 September 2020 to the Legal Services Commissioner, I find it improbable that the respondent was unaware of his obligations as a sponsor to notify the Department of the cessation of the applicant’s employment and reject his evidence to this effect. Indeed, the respondent’s own rendition of conversations on 26 June 2015 demonstrate that he was acutely aware of the visa conditions applicable to the applicant (see section 7.1 below).

A third example arises in the context of the Business Plan that was submitted in support of the 457 Visa. In it the respondent significantly exaggerated the turnover of Platinum in its first two years of trading. The respondent’s acceptance in the witness box that he had made false representations to the Department arose only after he was confronted with figures revealing that fact.
Secondly, I found that the respondent was at times evasive or provided self serving or incredible evidence when he considered it expedient to do so in the conduct of the case.
The respondent was questioned about his knowledge of the level of English that the applicant spoke. In his first affidavit the respondent’s evidence was that when the applicant arrived in Australia he perceived that the applicant had inadequate language skills to perform the role of export coordinator. In his oral evidence the respondent professed not to know even in 2014 that the applicant knew insufficient written and spoken English to perform the job of import/export coordinator at Platinum. I find this incredible. The applicant was the respondent’s cousin whom he had known and been friendly with since he was a boy in the late 1990s and had kept in touch with him since then quite regularly. The respondent offered his cousin a job at his own company for a salary of $97,500, which was well in excess of the money that the applicant was earning in Lebanon and at a time when Platinum was reporting a low turnover and had previously only paid employees wages of $12,000 per annum. It is hard to believe that in making such an offer the respondent would not have an appreciation of his cousin’s language skills.
Indeed, the Business Plan that was lodged shortly prior to the entry into the contract of employment (and supplied in support of the 457 Visa application) appeared to be written to emphasise the importance of the applicant’s skill with Middle Eastern languages rather than English. Furthermore, it was suggested to the respondent in cross examination that he had pitched the applicant’s salary at an amount to ensure that the applicant did not have to pass an English proficiency test as a condition of the grant of his 457 Visa. The evidence of the relevant legislative instrument, referred to at paragraph [34] above, indicates that the wage offered to the applicant of $97,500 only marginally eclipsed the $96,400 threshold to entitle the applicant to an exemption from the English language test. Despite the denials offered by the respondent, I am satisfied that Platinum nominated the salary of $97,500 in order to exceed that threshold.
Thirdly, the respondent gave written evidence in chief that on 17 March 2017 he had received a call from his migration agent, Mr Semaan from CK Migration, informing him that the applicant and Jason Nader were meeting with him on that day. He exhibits to his first affidavit a letter from Mr Semaan of that date which is addressed to the applicant and is a general retainer letter for CK Migration to prepare a visa on his behalf. He gives further evidence he never directed or sent the applicant to go to speak to Mr Semaan. However, the respondent’s evidence in his first affidavit is that in November 2016 he told the applicant and Jason Nadar that he would not have Platinum associated with any permanent residency application unless Mr Semaan did it and the applicant replied that he would go see him. Furthermore, in cross examination the respondent was confronted with a covering email to the letter (obtained on subpoena from Ared Pty Ltd) in which Mr Semaan says to the applicant “James Dahdah has asked me to send you the following documents to start preparing an application for permanent residence”. That email is copied to the respondent at the Platinum email address ([email protected]). The covering email tends to contradict the respondent’s evidence that he had never directed or sent the applicant to see Mr Semaan. It was suggested to the respondent that he purposely did not attach the covering email to the letter when he exhibited it to his affidavit. The respondent denied this and contended that he received the letter in the mail at his parent’s house. I found the respondent’s evidence in this regard evasive and self-serving and I reject it. Having regard to the fact that the covering email is addressed to Platinum, I find that the covering email was deliberately omitted by the respondent because it did not support an aspect of his case.
Fourthly, the evidence concerning the preparation of the applicant’s resume and the Hope reference letter was the subject of some dispute. One aspect of it indicated that the respondent was at best inattentive to detail during the course of his preparation of his written evidence. In his written evidence the respondent said that his migration agent asked him to obtain a copy of the applicant’s resume in support of the 457 Visa application. He says that the applicant then sent the resume to him, a copy of which he exhibits, and that he lodged the visa application with the resume. In his oral evidence he first said that he sent the resume unchanged to the Department. However, documents produced on subpoena from the Department indicate that two paragraphs had been added to the resume that appear in exhibit J that do not appear in the version that the respondent contends was sent to him by the applicant. In cross examination the applicant accepted that he had amended the resume to add two further paragraphs. He gave evidence that he had spoken to the applicant before making the amendments. The applicant submits that having regard to this evidence it should be inferred that the respondent, not the applicant, prepared the resume and that given that much of the content of the Hope reference was reproduced in the resume, it may be inferred that the party who prepared the resume prepared the reference letter also. Having regard to the applicant’s confusing evidence about his work history, and the respondent’s changing version of events as to the preparation of the resume, I find it difficult to accept either version of events.
Having regard to the totality of the evidence given by the respondent I have formed the view that his evidence should be treated with considerable caution and only accepted when it is corroborated by other witnesses, supported by documents or otherwise supported as inherently likely.
6. SUMMARY OF THE KEY FACTUAL DISPUTES
The parties agree that the key factual dispute in the proceedings is whether or not the applicant resigned from or abandoned his employment with Platinum on 25 June 2015. Consideration of this issue involves traversing the two often very different alternative versions of events proffered by the parties.
In his evidence and submissions, the applicant contends that he left secure employment as a bus driver for the De La Salle College in Lebanon and came to Australia on the basis of the contract of employment. He was aware at the outset that he had an opportunity to apply for permanent residency at the end of two years of employment and submits that it was in his interests to do what the respondent asked of him in order to qualify for the visa. He submits that it is implausible that on 26 June 2015 he would have resigned in order to buy a truck and start his own business. He submits that it is yet more implausible that within 10 days of allegedly leaving his employment with Platinum he would have changed course and gone to work as a construction labourer for John Dahdah at Veejay. He submits that the respondent accepted in cross examination that the applicant never actually said that he was resigning his job and no evidence was adduced that the applicant failed to report for work. He submits that the period from 26 June 2015 until 30 June 2015, when the respondent recorded the applicant’s alleged resignation in the June 2015 minutes, was implausibly short (involving only one working day) for the respondent genuinely to form the view that the conversation reported amounted to a resignation and that the June 2015 minutes should be regarded with “caution”.
Furthermore, the applicant relies on objective documents to support his case, in particular the 2016 and 2017 group certificates, which on their face support the contention that he was an employee for Platinum for the period until 30 June 2017.
Central to the applicant’s case is his claim that from July 2015 until October 2017 he continued to be employed by Platinum and, at the direction of the respondent, he worked on secondment at Veejay. He contends that during that period Platinum invoiced Veejay for his labour services and the respondent continued to promise that he would pay him his wages. He contends that in May 2015 he was instructed by the respondent to go to work for John at Veejay because Platinum did not have enough work for him to do, and that in July 2015 he commenced his secondment, which lasted until he had a falling out with John in October 2017. The applicant gives evidence that while he was seconded to Veejay he recorded his completed tasks in books that the respondent gave to him labelled “Harakat Pty Ltd – Tax Invoice Book” (Harakat work book). The respondent accepts that he was a director of Harakat Pty Ltd until mid-2017. The applicant gives evidence that when a Harakat work book was full, he would give it to the respondent and that he completed 6 or 7 such books while he worked for John but has retained only one, which he exhibits. He submits that after October 2016 he continued to report to work at the Yennora premises of Platinum every day and that the respondent continued to assign him tasks until October 2017.
The applicant contends that he repeatedly requested proper payment from the respondent but did not receive it. He submits that it is notable that it was not until the respondent’s third affidavit that he purported to provide evidence of payments made to the applicant and he failed to adduce any evidence of any conversation or documentary evidence in the form of a payslip or record of money transfer to prove that he paid the applicant on a monthly basis at all. Similarly, John did not adduce any evidence in his affidavits to say that Veejay had paid the applicant in cash. The applicant contends that he did not do so, and that oral evidence to this effect given by John in cross examination should be disregarded.
Finally, the applicant contends that whilst the respondent’s evidence gives the impression that from 26 June 2015 onwards he gave money to the applicant from time to time as a gift, the better view is that he did so on the basis that the money was in lieu of wages on a mutual understanding that the respondent owed money to the applicant. This is said to include a payment made by the respondent in May 2016.
The respondent presents a different version of events in his evidence and submissions. He contends that the applicant abandoned his employment with Platinum because he wished to pursue a business opportunity by purchasing his own truck. He relies on his recollection of conversations that he had during the week of 22 June 2015 and conversations recounted in the evidence of Mr Boustany, Mr Atie and Mr Gittany that corroborate his version of events. He contends that the applicant’s claim that it was the respondent, not he, who wished to acquire a truck is inherently lacking credibility, and relies on the fact that it was the applicant, not the respondent, who knew the vendor of the truck, Tony Bourizk. The respondent submits that based on the conversations of 26 June 2015 he formed the view that the applicant had resigned and no longer wished to work with Platinum. He submits that his recollection of events is consistent with the June 2015 minutes that were signed by the respondent and Mr Basha as the Chairperson of Platinum.
The respondent disputes that the applicant continued to work for Platinum after July 2015 on secondment. He submits that there is no credible evidence that the applicant continued to work for Platinum during the time that he performed work with Veejay, and relies on evidence of John and also the respondent to that effect. He rejects the proposition that he gave instructions to the applicant whilst he worked at Veejay and submits that no reliable inferences can be drawn from the Harakat work book or other invoices said to record the work that the applicant did for Veejay on behalf of Platinum.
The respondent relies on other matters in support of his contention that the applicant abandoned his employment. He submits that the applicant did not account for the periods of time when he was absent from Australia in Lebanon, when there were occasions where he did not obtain the respondent’s approval for his absence. He submits that the applicant has given inconsistent evidence about when he worked for Platinum and what his duties were. Further, the respondent disputes that there were many occasions after July 2015 when the applicant attended the premises of Platinum but did not perform work because the respondent was not present, gave him no instructions and did not answer his calls. The respondent submits that the evidence shows that the applicant worked at a number of different places after October 2017 including working for Jason Nader in a business known as Inferno Fencing, later working in a new business that the applicant had established with Mr Nader known as Argileh Express. In this context the respondent submits that the applicant’s bank statements indicate that the source of money that he deposited from time to time in 2017 is more likely than not to have come from his working for third parties and that the applicant’s explanations for the sources of that money were conflicting, varied and inherently incredible.
The respondent submits that the applicant had a number of motives for fabricating his claim that he continued to be employed by Platinum after 26 June 2015. One is that he realised that he needed to be have been employed for more than 2 years with the same employer to meet the criteria for becoming a permanent resident. Another is that once he realised that he may not meet the English-language requirements for a permanent resident visa he used the litigation as a means of obtaining a protection visa for his family by claiming that he needed the money to repay outstanding debts in Lebanon to avoid death threats being carried out. The respondent submits that after moving his family to Australia in order to get a better life the applicant sought advice from a migration agent, Mr Semaan of CK Migration, and then returned to Lebanon in June 2017 for the purpose of obtaining primary documents to support his residency application. It is submitted that this led to the applicant and respondent having a heated confrontation on or about 13 September 2017 when the applicant demanded that Platinum produce group certificates demonstrating that he had been employed for 2 years. It was then, according to the respondent, that the applicant threatened the respondent that “its on your neck” if he did not get his residency.
The respondent acknowledges that Platinum did not have certain employee financial records relevant to the case as a result of Mr Basha no longer retaining them and because Platinum has been deregistered. He accepts that this state of affairs is unsatisfactory, but submits that no suggestion was made that he deliberately engineered this situation to avoid legal scrutiny. He submits that Platinum was a small business which relied on its accountants to keep its records. He also acknowledges that he has made a number of errors of judgment in not reporting the applicant’s cessation of employment with the Department of Home Affairs and by creating false 2016 and 2017 group certificates. He submits that he candidly acknowledged those mistakes and has disclosed them to the relevant authorities. He submits that he made those mistakes consistently with the values instilled in Lebanese culture which emphasises family ties and helping out family members. He submits that once the applicant got angry and aggressive he felt intimidated and so under duress he gave the applicant what he wanted in order to avoid further trouble.
7. REVIEW OF THE EVIDENCE
In the sections below I review the evidence presented in relation to the primary areas of disputed fact and then set out my conclusions in relation to those facts in issue.
7.1 The conversation of 26 June 2015
There is a dispute on the evidence as to whether on 26 June 2015 the applicant informed the respondent that he intended to buy a truck so that he could start his own business.
The respondent gives evidence that during the week of 22 June 2015 the applicant approached him and said that he had a friend who had a truck that he wanted to sell and that the friend had work for him to do. The respondent deposes to having a conversation in Arabic to the following effect:
Jean:James, a friend of mine has a truck he wants to sell, and I want to buy it.
James:           What do you mean?
Jean:              I have a friend who is selling his truck and he has work for me.
James:           Jean you can’t buy a truck. You are working for me.
Jean:              OK, we will talk.
The respondent gives evidence of a further conversation on 26 June 2015 to similar effect in which Mr Boustany participated. He gives evidence that during the conversation, Mr Boustany and the respondent informed the applicant that he could not buy a truck. The respondent gives evidence that the conversation included the following:
James:           What is this? What’s going on?
Habib:           Did you hear Jean wants to buy a truck?
James:           What do you mean Jean?
Jean:              Yes the truck I want to buy from my friend.
James:           Jean, I told you that you can’t buy the truck. You are not allowed.
Habib:Yes, Jean you are not allowed to buy a truck. You are bound by that condition on your visa.
James:Jean, you are not allowed to start a business. How are you going to do that?
Jean:              I will put the truck in your name.
James:No, I won’t allow that. I don’t want that liability and can’t afford to hold that liability.
Mr Boustany left the conversation but the respondent and the applicant continued their conversation, the respondent giving evidence that it traversed the type of truck for sale, its cost, the earning rate per load and its potential. The respondent gives evidence that he pointed out to the applicant the weekly costs and earnings and said that he would be better off continuing to work at Platinum.
The respondent deposes that the conversation concluded as follows:
James:           How are you going to pay for it? I can’t pay for it.
Jean:              I will get the money don’t worry.
James:Jean, do you have enough money to rebuild the engine, diffs or the gearbox if they go? It has done a million kms so they may need to rebuilt [sic] very soon if not now. Maybe that’s why he is trying to sell it?
Jean:              You just don’t want me to get ahead. You are greedy.
James:           Are you serious Jean?
Jean:              Yes. I want to buy the truck and you can’t stop me.
James:That’s fine Jean, if you don’t want to work here anymore then fuck off.
The respondent gives evidence that he considered that by this conversation the applicant had resigned from his position in the company, although he kept an open mind to the possibility that he would return.
In cross examination the respondent accepted that he did not notify the Department of the end of the employment relationship. Nor did he write any letter of confirmation to the applicant. It was put to him that he did not consider that the applicant had abandoned his employment but he maintained his position.
The respondent gives evidence that a few days later, he had a conversation with his father John who told him that the applicant had asked John for work. At that point the respondent told his father that the applicant was no longer working with Platinum. That version of events is supported by John, who gave evidence that on 5 July 2015 the applicant said to him “I am finding it difficult working. Is there room for me?”, to which John responded “Yes, there is if you can drive the truck and do some labouring”. This version of events was not shaken during the course of cross examination.

I have referred to the evidence relating to the period when the applicant went to work at Veejay in section 7.2. Having regard to the matters set out there I:
(1)Find that the applicant worked as a labourer at Veejay from 5 July 2015 until October 2016;
(2)Find that the applicant worked under the supervision of John during that period and was engaged to work by Veejay;
(3)Reject the submission that the Harakat work books or the invoices adduced in evidence by the applicant from Platinum to Veejay demonstrate that Platinum continued to employ him while he worked for Veejay or that he was otherwise working under a secondment from Platinum during that period;
(4)Reject the contention that during the period that he worked at Veejay, the applicant worked under the supervision of the respondent; and
(5)Find that Veejay paid the applicant in cash for the duration of his employment with Veejay.
It follows that I reject the applicant’s contention that he continued to work as an employee for Platinum during the period from 5 July 2015 until October 2016. To the contrary, I find that during that period he was engaged (whether as an employee or otherwise is unclear on the evidence) for Veejay.
In section 7.3 above I have considered whether or not the applicant worked for people other than Platinum after October 2016 until the alleged termination of his employment in October 2017. I am satisfied from the evidence referred to there that he did. Conversely, I reject the applicant’s claim that during that period he attended the premises of Platinum to report for work or that he frequently made telephone calls to the respondent to ask him for work.
In section 7.4 I have considered the troubling evidence concerning the 2016 and 2017 group certificates. I accept that at the meeting in September 2017 the question of the group certificates was discussed in the context of the provision by Platinum of such documents to the applicant. However, I do not consider that it was raised simply because the applicant wished to be compliant with Australian taxation law, as he contends. I consider it more likely, and find, that the subject was raised because the applicant, Jousephine and Jouliana thought that it would be necessary for the applicant to have such documents in order to further his claim to permanent residency in Australia on the basis that he had worked for Platinum for two years.
The applicant’s evidence was that he never would have resigned from his job in Lebanon if he had not thought that he could obtain a permanent residency visa for Australia. He was conscious by then of his need to prove that he had worked with the same employer for more two years. I consider it likely that it was the applicant who provided Jousephine and Jouliana with the (incorrect) narrative that he had remained in employment with the respondent at Platinum, and that their acceptance of that position arose from him. Furthermore, despite the applicant’s denial that the topic of his application for a permanent residency visa was raised during the meeting, each of Jousephine and Jouliana recall that it arose. I accept their evidence in this regard and that the preparation of the group certificates arose in that context.
This view is broadly supported by the chronology of events. Some months before in March 2017 the applicant, in the company of Mr Jason Nader, had visited Mr Semaan at CK Migration Law. The applicant’s son, Elie, arrived in Australia in June 2016 and the balance of his family arrived in June 2017. The applicant gives evidence that the primary reason for his trip to Lebanon from May 2017 until 22 June 2017 was to obtain documents for his application for permanent residency. These matters tend to support the proposition that documents relevant to his application for permanent residency, such as group certificates, were of concern to the applicant at that time.
Furthermore, neither Jousephine or Jouliana recall any part of the September 2017 conversation to be about unpaid money owed by the respondent (or Platinum) to the applicant, which tends to contradict the applicant’s version of the conversation. I do not accept that the purpose of the discussion was to address the underpayment by Platinum of the applicant’s entitlements. Had that been a genuine grievance one might have expected that subject to be raised, but neither Jousephine nor Jouliana recall it. Rather the focus of the September 2017 meeting appears to have been upon obtaining documents to support the applicant’s visa application. These matters cause me to reject the applicant’s recollection of the conversation.
Having regard to the whole of the evidence, I consider that it is likely that the effect of the meeting was, as the respondent’s evidence indicates, to ask the respondent to produce group certificates for Platinum in respect of the applicant, regardless of whether or not Platinum had been the employer of the applicant for the whole period, because the applicant, Jouliana and Jousephine considered them to be important for his application for permanent residency in Australia.
However, one aspect of the evidence given by the respondent is that the applicant threatened to kill him if he did not produce such statements. Having regard to the fact that Jouliana and Jousephine have no recollection of that part of the conversation, I am not prepared to find that this aspect of the conversation, or the making by the applicant of a cutthroat sign, took place. Had such strong language and such a threatening gesture been made, one would expect the other participants in the conversation to recall it. In this regard I do not consider that the failure of the applicant to call the evidence of his wife, Berthe, to be decisive. I accept the denials of the applicant that such threats were made. It follows that I reject the evidence given by the respondent in this regard.
I consider that the respondent thought it expedient to “get Jean off his back” (as he said in his evidence) by instructing his accountant to create the group certificates, but I do not consider that he did so under a threat of death or anything nearly so dramatic. Rather, he wished to meet the desires of Jouliana and Jousephine and, perhaps to a lesser extent, those of the applicant.
I find that the respondent was prepared to satisfy that expediency by instructing his accountant to prepare false group certificates.
8. CONSIDERATION OF THE APPLICANT’S CLAIMS
8.1 Claim under s 323 of the FW Act
The applicant’s pleaded case is that he performed work for Platinum for a period of 32 months for which he was paid only $19,711. The pleaded basis for that claim is that the applicant was an employee of Platinum from 17 February 2015 until October 2017.
I have summarised the disputed factual issues in some detail above. The first relevant legal issue is whether on or about 26 June 2015 the applicant resigned from or abandoned his employment. This does not depend on the parties’ subjective intentions or understanding, but is determined by what a reasonable person in the parties’ position would have understood was the objective position immediately after the conversation ended on 26 June 2015, based on what each party said and did and in light of the surrounding circumstances: Koutalis v Pollett [2015] FCA 1165; 235 FCR 370 at [43] (Rares J).
In Koutalis the Court made the following observation of present relevance (emphasis added by Rares J):
43.…In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at 179 [40], Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ said:
This Court, in Pacific Carriers Ltd v BNP Paribas [(2004) 218 CLR 451], has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction [Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at 461-462 [22]]. (emphasis added)
44. In my opinion, the same considerations apply to the evaluation of the circumstances where parties engage in conversations and conduct that affects their legal rights under a contract, including the assessment of whether or not words and or conduct can be seen to amount to a resignation. Nonetheless, in employment contexts, a court must be conscious that situations can arise in which one or other of the parties acts in the heat of the moment in such a way that a reasonable person in the position of the parties in all the circumstances would not understand the employee to be resigning or the employer to be terminating the employee’s employment, as the case may be. So much is reflected in what May LJ, with whom Croom-Johnson and Woolf LJJ agreed, said in Sovereign House Security Services Limited v Savage [1989] IRLR 115 at 116, namely:
In my opinion, generally speaking, where unambiguous words of resignation are used by an employee to the employer direct or by an intermediary, and are so understood by the employer, the proper conclusion of fact is that the employee has in truth resigned. In my view tribunals should not be astute to find otherwise. However, in some cases there may be something in the context of the exchange between the employer and the employee or, in the circumstances of the employee him or herself, to entitle the Tribunal of fact to conclude that notwithstanding the appearances there was no real resignation despite what it might appear to be at first sight. (emphasis added)
In the present case, the case advanced by the applicant is that the conversations of 26 June 2015 to which I have referred in section 7.1 did not take place. He advances no alternative case that on that day he was dismissed, or constructively dismissed. Rather, he advances an alternative version of events concerning the secondment, which I have rejected. Accordingly, the relevant question concerns the conversation that I have found took place on that day, and the events surrounding it.
The evidence of the respondent, Mr Boustany and Mr Atie indicates that the applicant conveyed his intention to acquire at truck and commence his own business. The respondent was not prepared to assist in this venture. After a lengthy conversation on the subject, during which the respondent attempted to dissuade the applicant from his plans, the applicant indicated that he was serious in his plan to buy the truck and start his own business. The respondent replied “That’s fine Jean, if you don’t want to work here anymore then fuck off”.
Although the respondent had the final word in that conversation, it is apparent that the applicant evinced an intention on his part to cease working for Platinum and engage in another activity that was antithetical to his continued employment at Platinum, and in breach of his obligations under his 457 Visa.
The events that followed indicate that the applicant did not purchase a truck. However, a short period of time later, on 5 July 2015, he approached John for work and immediately began to work for Veejay. That step was also inconsistent with his continuing to work for Platinum as an employee. In this regard, I have earlier in these reasons explained why I reject the contention advanced by the applicant that, despite performing as a labourer at Veejay, he was nonetheless still working as an employee at Platinum under the supervision of the respondent.
Whilst taken alone it might be regarded that the conversation between the applicant and the respondent on 26 June 2015 did not amount to a conclusive expression of resignation or abandonment, the events that followed demonstrate that indeed that was the applicant’s intention. The diverging evidence as to what happened after the period of time that the applicant worked at Veejay is of less relevance, having regard to the findings that I have made. However, in my view the applicant’s case to the effect that he continued to report to the respondent after October 2016 is also not supported by the evidence and must be set to one side.
In weighing up the competing versions of events I pause to reflect on three aspects of the case that are particularly troubling.
One is that there is an inherent improbability that a man in the position of the applicant would leave his life in Lebanon and come to Australia to work at Platinum, only to abandon his employment a few months later. On one level it does not seem like rational behaviour. The applicant as a recent arrival to Australia was naïve as to local laws and to a large extent in the hands of the respondent. It would be a rash thing for one in his position to take such a course.
However, after observing the applicant in the witness box and considering his evidence closely, in my view he was capable of making impulsive and irrational decisions if he considered that they would be to his benefit. The fact that he behaved in a way that may appear objectively to be irrational does not persuade me that he was being truthful in denying, in the face of the other evidence to which I have referred, the 26 June 2015 conversation or in presenting the alternative version of events that he has advanced in relation to his work at Veejay, or the events that happened thereafter.
Another is that the conversation with the respondent of 26 June 2015 concerned the applicant’s intention to buy a truck, and yet within 10 days he was asking John for work at Veejay. On one view that might indicate that he never had an intention to acquire a truck and that the version offered by the respondent is false. However, I prefer to rely on the objective factors to which I have referred. It is entirely possible that the applicant changed his mind after the respondent refused to provide his support (including financial support) for buying the truck and instead decided to chance his arm working for John.
A third factor is that the existence of the 2016 and 2017 group certificates tend to support the applicant’s version of events. These are indeed troubling in the context of the narrative provided by the respondent. However, for the reasons set out in more detail in section 7.4 above, I am satisfied that those documents are, as the respondent contends, false. I am satisfied that in September 2017 there was a lengthy family meeting at which the applicant, Jousephine and Jouliana urged the respondent to produce the 2016 and 2017 group certificates to assist the applicant in his application for permanent residency and that the respondent agreed to comply. As I have noted, I reject as false the respondent’s evidence that at that meeting the applicant threatened to kill him. In my assessment the respondent is a person who is prepared to bend the truth to meet the expediency of his own interests, and at that point he considered it was more convenient to lie to the ATO than to disappoint his family.
In the result, the conclusion that I reach is that the applicant has not made out his case that he worked for Platinum for the period from 27 June 2015 until 1 October 2017. I accept that he left the employment of Platinum on about 26 June 2015.
It follows that the applicant fails in his case that Platinum was in breach of s 323 of the FW Act for the period from 26 June 2015 to 1 October 2017. From 26 June 2015 the applicant ceased to be entitled to wages because he abandoned his employment and indicated that he was no longer ready, willing and able to perform the contract of employment. Thereafter, Platinum no longer had an obligation to pay the applicant any wages and superannuation and he no longer continued to accrue any annual leave: Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25; 72 CLR 435 at 465.
For these reasons the applicant’s primary case for the payment of entitlements and pecuniary penalties for the period February 2015 to October 2017 must fail.
In the alternative, the applicant contends that he was covered by the Clerks Award and that he performed duties commensurate with level 2 classification as set out in Schedule A of the Clerks Award. He claims that he is entitled to payment for unpaid wages, leave and superannuation entitlements under the Clerks Award. However, the applicant conceded during cross-examination that he had not performed any clerical work as set out in the Clerks Award and there is otherwise no evidence to suggest that he did so. As a result, I am not satisfied that the applicant was covered by the Clerks Award and his claim for entitlements on this basis must also fail.
In light of my findings above it is not necessary to consider the respondent’s alternative claim that from about 26 June 2015 the applicant engaged in industrial action within the meaning of s 19 of the FW Act.
8.2 An alternative case for unpaid wages from February 2015 until 26 June 2015
Although not pleaded, in closing submissions the applicant advanced a case to the effect that he is entitled to unpaid wages and entitlements for the period that he worked from 17 February 2015 until 26 June 2015. The respondent addressed the argument in answer. In my view it is appropriate to address my conclusions in relation to this aspect as advanced.
The respondent submits that the applicant lodged a taxation return for the 2014/2015 financial year (2015 tax return), which indicates that he received a gross payment of $48,750 and had $13,000 in taxation withheld, which amounts satisfy his entitlement to wages.
The applicant contends that he had nothing to do with the 2015 tax return, that he did not arrange for it to be filed, that he never lodged a taxation return and that he never received any refund arising from it. This raises another area of the evidence in which diametrically different versions of events are offered.
At the trial the respondent tendered a tax return for 2014/2015 and a Notice of Assessment for the year ended 30 June 2015 (2015 tax assessment) issued by the ATO produced on subpoena by the applicant (see [66] above).
The 2015 tax return identifies the details of the applicant and his tax file number. It gives as his postal address the same Ermington, NSW address as noted in the 2015 tax assessment. It provides a BSB number for the Carlingford branch of the National Australia Bank and notes the “occupation description” for the applicant as “construction worker-earthmoving labourer”. Work related deduction claims are made for car expenses and protective clothing. The tax agent’s details record the contact name as “Anna Leksinska” and a telephone number is provided. The details of income and tax withheld correlate with the details set out in the 2015 tax assessment.
The applicant gave evidence in cross examination that it was the respondent who prepared the tax return when they were together in the office of Mr Basha and that “[the respondent] made me sign it…and he took care of the rest”. The applicant denied ever seeing Ms Leksinska. He said that the respondent gave the 2015 tax assessment to him but not the 2015 tax return. He denied giving Ms Leksinska or anyone else any documents for a tax return and said that he had not met Ms Leksinska. He also denied that he had supplied information as to his income for the 2015 tax assessment or that he had received a gross income of $48,750. He said that the respondent made him sign documents the contents of which he was unaware. He denied ever receiving a tax refund in the amount of $6,398 or any refund at all.

The applicant’s denial of involvement in the creation of the tax return sits uncomfortably with the fact that it was he who produced the 2015 tax return and the 2015 tax assessment. Plainly they had come into his possession at some point in time.
The respondent gives evidence that it was the applicant who approached him at some time in about May or June 2016 and said that he wanted to do his tax return. The respondent then asked Anna Nawrocka to do it, Mr Basha having said that he did not want to do it, and Ms Nawrocka said “they will sort it out”. The respondent’s evidence is that Ms Nawrocka was his accountant and worked for Mr Basha but he did not know Ms Leksinska. His evidence is that he did not ask Ms Nawrocka to prepare the applicant’s tax return for 2015, and only told her that the applicant wanted it done and Mr Basha did not want to do it. When asked who provided Ms Leksinska with the information going to the deductions to be made for the applicant, the respondent answered that he thought that would have been Ms Nawrocka.
On 21 June 2016 the respondent received by direct transfer to his bank account from AAA Mobile Accountants (an accounting firm located at the Ermington address identified in the tax return lodged on behalf of the applicant) the $6,398 refund on the tax due to the applicant from the ATO.
The respondent gave evidence that Platinum paid the wages due to the applicant in cash prior to his departure on 26 June 2015, because prior to then the applicant did not have an Australian bank account. The applicant denies that this happened.
I am not persuaded, on the basis of the evidence available, that the 2015 tax return does not represent the true position, namely that the applicant was paid wages by Platinum prior to 26 June 2015. There is no suggestion that the tax return is not a genuine document, or that the ATO did not provide a refund in the amount specified in the return. It is inherently improbable that Platinum or the respondent would have manufactured a state of affairs where tax would be paid in respect of wages for the applicant in circumstances where he was not paid at all. Indeed, such a proposition was not put to the respondent even though the submissions advanced by the applicant suggest (without making the allegation directly) that this is what must have taken place.
In the circumstances, in my view the applicant has not established that he was not paid wages for the period 17 February 2015 to 26 June 2015.
However, as set out at [51] above, pursuant to the contract of employment, the applicant was entitled to superannuation contributions “in accordance with current legislation”. The applicant claims that during his employment Platinum failed to make superannuation contributions in respect of the applicant. In his third affidavit the respondent’s evidence was that he had no recollection of Platinum making any superannuation payments on the applicant’s behalf. In cross examination, the respondent accepted that he knew that Platinum was supposed to make superannuation contributions for the applicant and there was a possibility that he did not do so. Although couched in terms of “possibility” in my view this qualification more likely reflects the respondent’s inability to make a frank concession than any doubt on his part. I consider that, had Platinum made superannuation contributions in respect of the applicant, the respondent would have known it. I am satisfied that Platinum did not make superannuation contributions for the applicant for the period 17 February 2015 to 26 June 2015.
The applicant submits that the failure to make superannuation contributions is a breach of s 323 of the FW Act even if the Clerks Award does not apply. He submits that s 323 is a broad provision requiring the payment of entitlements, including those arising under contracts of employment, citing Murrihy at [142]. However, Murrihy does not stand for the proposition that superannuation contributions fall within s 323. The Explanatory Memorandum to the Fair Work Bill 2008 notes that “the amounts referred to in this subclause would not include superannuation contributions or non-monetary benefits”. Under the Superannuation Guarantee (Administration) Act 1992 (Cth) and the Superannuation Guarantee Charge Act 1992 (Cth), an employer is under no statutory obligation to make superannuation contributions for the benefit of any employee, however the extent to which it does so will affect whether it pays a charge or tax and, if so, in what amount: Bluescope Steel (AIS) Pty Ltd v Australian Workers Union [2019] FCAFC 84; 270 FCR 359 at [25] (Allsop CJ, Rangiah J agreeing). Therefore, the result of the failure to make superannuation contributions for the applicant is that Platinum, which has been deregistered, may have a charge imposed on it by the relevant statutory body. In light of the structure of the legislative scheme, and having regard to the Explanatory Memorandum, I am not satisfied that the general language of s 323(1) of the FW Act encompasses superannuation payments. Such payments do not appear to be “amounts payable to the employee in relation to the performance of work” as that subsection requires. Moreover, whatever contractual obligation Platinum may owe in respect of unpaid superannuation has not been pursued in this litigation. Any liability of the respondent would only arise under s 550 of the FW Act. In the result the applicant has not established that Platinum’s failure to make superannuation contributions on his behalf for the period 17 February to 26 June 2015 constitutes a breach of s 323 of the FW Act.
8.3 The claim under the ACL
The applicant pleads that “during the employment period” the applicant at various times asked the respondent to make payment for the work that he performed pursuant to his contract of employment and that, in response, the respondent made seven listed representations to him. In closing submissions, he confined his case to the following single representation, namely that:
the respondent would apply for permanent residency in respect of the applicant, two years into the term of is contract of employment.
The applicant pleads that the representation was made in trade or commerce within the meaning of s 18 of the ACL, and that in reliance on that representation the applicant continued to perform tasks as assigned by the respondent pursuant to the contract of employment during the “Employment Period” (which is defined in the statement of claim as being from February 2015 until October 2017), and continued to fund and support his and his family expenses by taking out a loan for $100,000. He pleads that the respondent did not have a genuine intention of applying for permanent residency in respect of the applicant and that as a result the conduct of the respondent was misleading or deceptive in breach of ss 4, 18 and 31 of the ACL.
The applicant further pleads that but for the misleading or deceptive conduct of the respondent, the applicant would not have entered into the contract of employment and would not have continued to perform work under it. He pleads that he was induced to perform work without pay during the Employment Period and is entitled to damages under s 236 of the ACL.
The relevant case advanced on the pleading is that prior to commencement of his employment the respondent represented to the applicant that he would apply for permanent residency in respect of the applicant, two years into the term of his contract of employment.
The difficulty with the applicant’s case in this regard is that the pleaded representation that the respondent would apply for permanent residency for him is conditional, and dependent on the applicant remaining in employment with Platinum for two years. As I have found, that condition was not fulfilled as a result of the applicant resigning from or abandoning his employment after 26 June 2015. Accordingly, that case cannot be made out.
In his closing submissions the applicant put forward a different case. He relied on the following paragraph in his first affidavit of 27 June 2019:
James Dahdah arrived in Lebanon in October 2014 for his honeymoon. On that day when he arrived home James Dahdah said words to the effect:
“Congratulations! You got your visa to go to Australia. After two years you can stay in Australia permanently”.
He further said words to the effect:
“Please resign from your current job and join us in Australia”.
The applicant submits that the representation was liable to mislead the applicant as to the terms or conditions attached to obtaining permanent residency in Australia because the respondent did not disclose at the time of the offer the requirements of the visa including the English language requirements for both the visa and the permanent residency. The applicant submits that at the time that the respondent prepared the Business Plan and other documents for the applicant’s 457 visa the respondent was aware that the role that he required the applicant to fulfil required proficiency in English and that the applicant was not proficient in English, yet when putting forward the role to the Department he created the impression that the role required a person who could speak Arabic. He further submits that the respondent identified a salary for him at $97,500 in his contract of employment in order to circumvent the English language requirement.
This is quite a different misrepresentation case based, as it appears to be, on the assumption that the failure on the part of the respondent to inform the applicant of certain English language requirements amounted to a misrepresentation. However, the modified case based on the conversation quoted above must fail for the same reason as the pleaded case. That is because, taking the representation at its highest, it too is based on the express premise, when understood in context, that the applicant would remain in the employ of the applicant for two years, which he failed to do. Furthermore, no evidence was adduced by the applicant indicating that he was aware, at the time, that his 457 visa application was predicated on the basis that he could speak Arabic but not English, or that he had any awareness or had adverted at all to the conditions that may be applicable to an application for a permanent residency visa. In such a circumstance, there is no evidence to support the proposition that the applicant relied on any such representation.
Accordingly, the claim advanced under the ACL must fail.
8.4 Conclusion
For the reasons set out in more detail above, I have found that between 17 February 2015 and 26 June 2015 Platinum engaged the applicant as an employee. During that period he received wages in cash. Platinum deducted and remitted taxation from the applicant’s wages to the ATO. The work that the applicant performed was not of a clerical nature and did not fall within the Clerks Award. He left the employment of Platinum on 26 June 2015.
I have found that the applicant received his wages and other entitlements for his period of employment, save that Platinum failed to make superannuation contributions in respect of the applicant. The applicant had no entitlement to wages or other entitlements from Platinum after 26 June 2015.
I have otherwise rejected the claims by the applicant, including his claim for misleading or deceptive conduct pursuant to the ACL.
9. DISPOSITION
The applicant has failed in his various claims. The application must be dismissed.

I certify that the preceding two hundred and fifty-eight (258) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Burley.
Associate:
Dated: 22 April 2022

File number:	NSD 61 of 2019
Judgment of:	BURLEY J
Date of judgment:	22 April 2022
Catchwords:	INDUSTRIAL LAW – claim for unpaid wages and entitlements under the Fair Work Act 2009 (Cth) and relevant industrial award – where respondent sponsored applicant’s visa to work in Australia – whether applicant terminated his employment in June 2015 – application dismissed CONSUMER LAW – alleged misleading representations regarding respondent’s willingness to apply for permanent residency for the applicant after two years of employment – where representation conditional on applicant continuing his employment for two years – where that condition not met – case not established
Legislation:	Competition and Consumer Act 2010 (Cth) sch 2 ss 4, 18, 31, 236 Evidence Act 1995 (Cth) s 140 Fair Work Act 2009 (Cth) ss 12, 13, 14, 19, 87, 139, 323, 535, 542, 543, 545, 550 Superannuation Guarantee (Administration) Act 1992 (Cth) Superannuation Guarantee Charge Act 1992 (Cth)
Cases cited:	Association of Professional Engineers, Scientists and Managers, Australia v Wollongong Coal Ltd [2014] FCA 878 Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25; 72 CLR 435 Bluescope Steel (AIS) Pty Ltd v Australian Workers Union [2019] FCAFC 84; 270 FCR 359 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Kelly v Fitzpatrick [2007] FCA 1080 Koutalis v Pollett [2015] FCA 1165; 235 FCR 370 Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908; 238 IR 307 Qantas Airways Ltd v Flight Attendants’ Association of Australia [2020] FCAFC 227; 282 FCR 243
Division:	Fair Work Division
Registry:	New South Wales
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	258
Date of last submission/s:	19 July 2021
Date of hearing:	28-30 September 2020 20, 23-25 November 2020 18 December 2020 14 May 2021
Counsel for the Applicant:	Ms U Okereke-Fisher
Solicitor for the Applicant:	Abu Legal Pty Ltd
Counsel for the First Respondent:	The First Respondent did not appear
Counsel for the Second Respondent:	Mr M Seck
Solicitor for the Second Respondent:	Solve Legal Pty ltd

Table of Corrections
12 May 2022	In paragraph 177 line seven, the word “respondent” has been replaced with “applicant”

ORDER MADE BY:	BURLEY J
DATE OF ORDER:	22 APRIL 2022

1 INTRODUCTION	[1]
1.1 The proceedings	[1]
1.2 The pleaded case	[3]
1.3 Introduction to the factual dispute	[8]
1.4 Summary of conclusions	[15]
2 THE WITNESSES	[16]
2.1 The applicant’s witnesses	[16]
2.2 The respondent’s witnesses	[20]
3 THE SUBMISSIONS	[31]
3.1 The applicant	[31]
3.2 The respondent	[39]
4 CHRONOLOGY OF BACKGROUND FACTS	[41]
5 THE CREDIT OF THE APPLICANT AND THE RESPONDENT	[86]
5.1 The submissions	[86]
5.2 The credit of the applicant	[89]
5.3 The credit of the respondent	[101]
6 SUMMARY OF THE KEY FACTUAL DISPUTES	[110]
7 REVIEW OF THE EVIDENCE	[121]
7.1 The conversation of 26 June 2015	[122]
7.2 The secondment issue	[142]
7.3 Did the applicant work for other people after October 2016?	[159]
7.4 The 2016 and 2017 group certificates	[172]
7.5 Consideration and findings arising from the evidence concerning the key factual disputes	[201]
8 CONSIDERATION OF THE APPLICANT’S CLAIMS	[214]
8.1 Claim under s 323 of the FW Act	[214]
8.2 An alternative case for unpaid wages from February 2015 until 26 June 2015	[232]
8.3 The claim under the ACL	[246]
8.4 Conclusion	[255]
9 DISPOSITION	[258]