Eisele v Commonwealth of Australia - [2016] FCCA 1155

FEDERAL CIRCUIT COURT OF AUSTRALIA

EISELE v COMMONWEALTH OF AUSTRALIA & ANOR

[2016] FCCA 1155

Catchwords:
HUMAN RIGHTS – Discrimination – Sex Discrimination Act 1984 (Cth) – Disability Discrimination Act 1992 – refusal to grant the Applicant a visa –Second Respondent gave effect to withdrawal of necessary criteria for visa – actions of the Second Respondent said to be discriminatory – actions of Second Respondent not discriminatory – application dismissed.

Legislation:

Australian Constitution, s.75(v)

Australian Human Rights Commission Act 1986 (Cth), s.46PH(1)(c)

Federal Circuit Court of Australia Act1999 (Cth), s.18

Migration Act (1958) (Cth), ss.5, 65, 140E, 140GB

Migration Regulations 1994 (Cth), regs.1.03, 2.59, 2.59(c), 2.59(d), 2.59(e), 140GB, Sch. 2: Part 457, cls. 457.233(4), 457.223(4)(a)

Privacy Act 1988 (Cth)

Disability Discrimination Act 1992, ss.5, 6, 7, 8, 9(1), 29

Sex Discrimination Act 1984, ss.4, 6, 6(1)(a), 6(1)(b), 6(1)(c), 7B, 7C, 22, 26, 108

Cases cited:
Eisele v Minister for Immigration & Anor [2014] FCCA 677
Purvis v State of New South Wales (Department of Education and Training) & Anor [2003] HCA 62
Walters & Ors v Public Transport Corporation [1991] HCA 49, (1991) 173 CLR 349

Applicant:

DR PATRICIA EISELE

First Respondent:

COMMONWEALTH OF AUSTRALIA (DEPARTMENT OF IMMIGRATION & BORDER PROTECTION)

Second Respondent:

MR DANIEL HUNTER
DEPARTMENT OF IMMIGRATION & BORDER PROTECTION CASE OFFICER

File Number:

MLG 212 of 2015

Judgment of:

Judge Hartnett

Hearing dates:

23 and 24 March 2016

Delivered at:

Melbourne

Delivered on:

13 May 2016

REPRESENTATION

The Applicant:

In Person

Counsel for the Respondents:

Mr Goodwin

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The question of whether there be an order for costs, and if so, in what quantum, be adjourned to a date to be fixed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 212 of 2015

DR PATRICIA EISELE

Applicant

And

COMMONWEALTH OF AUSTRALIA
(DEPARTMENT OF IMMIGRATION & BORDER PROTECTION)

First Respondent

MR DANIEL HUNTER
DEPARTMENT OF IMMIGRATION & BORDER PROTECTION CASE OFFICER

Second Respondent

REASONS FOR JUDGMENT

Introduction

By further amended application filed on 2 March 2016, on which the Applicant was given leave to rely at the commencement of the hearing of proceedings on 23 March 2016, the Applicant alleges that the Respondents discriminated against her in breach of the Sex Discrimination Act 1984 (Cth) (‘the SDA’) and the Disability Discrimination Act 1992 (Cth) (‘the DDA’). The Applicant also alleges that the Respondents discriminated against her in breach of the Privacy Act 1988 (Cth) and that the Respondents breached s.75(v) of the Australian Constitution and various sections of the Migration Act (1958) (Cth) (‘the Migration Act’).
In essence, the source of the Applicant’s complaint is in the action of the Second Respondent, as Delegate of the Minister for Immigration and Border Protection, to give effect to the withdrawal of sponsorship and nomination applications by Ms Jane Hickey, “Administrator” of the relevant business employer. The sponsorship and nomination applications were necessary criteria for the grant of the relevant visa to the Applicant.
The orders sought by the Applicant are as follows:-
“1. The referral of consideration for a visa for the Applicant, Dr Patricia Eisele, back to the Minister for Immigration and Border Protection, so that a more favourable decision can be substituted by the Minister.
2. Loss-of-income compensation in the amount of $4,533 per month (based on $49,900 per year plus 9% superannuation as designated in her employment contract) for the period from June 2012 when the discrimination took place to the date of the final order.
3. Reimbursement of DIBP ($250) and MRT (approx. $3,00) filing fees and Federal Circuit Court filing fees and costs (approx.. $7,200) paid and accrued by the Applicant since June 2012.
4. $200,000 in compensation for damages for discrimination in breach of the Disability Discrimination Act 1992 and Sex Discrimination Act 1984 and negligence in the provision of customer service in breach of the Commonwealth of Australia Constitution Act and Migration Act 1958. This negligence resulted in the Applicant being denied access to a lawful MRT appeal on the merits of the case, the denial of a 457 visa application for nearly four years, and the intentional failure to continue the Applicants work rights, putting her in severe financial hardship. The $200,000 was arrived at the compensate the Applicant for time, money and pain and suffering while she has remained in Australia under threat of repeated deportation to pursue Natural Justice through a review of her case on her merits. The case includes negligence in due diligence and lack of protection from an exploitative Subclass 457 sponsor.
5. Costs associated with the present Federal Circuit Court case.
6. Assurance that the information provided to DIBP by Jane Hickey and other regarding Dr Eisele’s employment with Colby Hickey is expunged from her immigration record and will not be provided or referenced to third parties in any form at any time.”
Between April 2011 and January 2014, Mr Daniel William Hunter, the Second Respondent (Mr Hunter) was employed by what is now the Department of Immigration and Border Protection, as a case officer. He was also a delegate of the then Minister for Immigration and Citizenship for the purposes of s.65 of the Migration Act which relevantly gives the Minister the power to grant or refuse visa applications. He is now employed by the Australian Trade Commission in the United States, residing in San Francisco. He attended at court in Melbourne to give evidence in these proceedings and be cross-examined.
The Respondents reject that any action of Mr Hunter was discriminatory. Amongst other arguments, to which I shall refer hereafter in these reasons, the Respondents argue that the Applicant’s arguments must fail for the following reasons:-
a)The SDA does not apply because the Applicant was not in a de facto relationship for the purposes of the SDA and therefore did not have an attribute capable of being discriminated against. In any event, the Respondents argue Mr Hunter knew nothing as to the Applicant’s relationship status, other than that she was divorced, at the time he gave effect to the withdrawal of the sponsorship and nomination forms.
b)There was no breach of the DDA as Mr Hunter did not treat the Applicant “unfavourably” (s.5, direct discrimination) and nor did he require her to comply with a requirement or condition (s.5, indirect discrimination) because the Applicant was an associate to Mr Colby Nelson Hickey (Mr Hickey), under the DDA. Any acts done by Mr Hunter were in relation to Mr Hickey, not the Applicant herself.
The Respondents argue further that there has been no breach of the Privacy Act 1988 (Cth) or the Migration Act and that the claims made by the Applicant are non-justiciable in the context of this action, and in any event have not been properly pleaded. The Court accepts that argument.
The Respondents seek dismissal of the application and that the Applicant pay the Respondents costs.
The evidence in these proceedings is as follows:-
a)For the Applicant:
i)Further amended application filed on 2 March 2016;
ii)Two documents attaching transcript and affidavits, sworn by the Applicant and filed on 22 May 2015, 29 May 2015, 17 July 2015, 4 September 2015 and 2 March 2016;
The Applicant also relies upon her outline of argument as amended filed on 21 March 2016. The Applicant also provided to the Court at the hearing the Applicant’s list of authorities.
b)For the Respondents:-
i)The response filed on 2 April 2015
ii)the affidavit of Mr Hunter filed 3 July 2015.
The Respondents also rely upon the First and Second Respondents written arguments dated 11 March 2016. The Respondents referred the Court to the High Court of Australia decisions of Walters & Ors v Public Transport Corporation [1991] HCA 49, (1991) 173 CLR 349; and Purvis v State of New South Wales (Department of Education and Training) & Anor [2003] HCA 62.
The Applicant also relied upon the evidence of Mr Noor Dean, Solicitor, who was called on behalf of the Applicant and gave oral evidence in the proceedings. The evidence given by Mr Dean I give no weight to. Whilst he was a genuine, forthright and truthful witness, his evidence was irrelevant to the matters which the Court is required to determine. The Applicant sought to rely upon evidence from Ms Jane Hickey and Mr Colby Hickey, both of whom she had subpoenaed to give evidence in the proceedings. The Court ruled that those subpoenas should be set aside after hearing argument from Counsel representing Mr Hickey and Ms Jane Hickey, who objected to the subpoenas. Mr Colby Hickey is Ms Jane Hickey’s adoptive son. He has a number of disabilities which include Down Syndrome, Autism and hyper-activity. He is non-verbal and uses communication equipment. Ms Jane Hickey is the ‘Administrator’ of his sole trader business. The Court made a ruling, the result of which was that no evidence was received by either of those persons, on the basis that their evidence was not of relevance in the proceeding. The Court determined that any evidence Mr Colby Hickey could give, via facilitated communication, which raises issues as to what weight such evidence could be given, if any, would be difficult procedurally and costly. The evidence is said to go to the provenance of an email, said to be forwarded by Mr Hickey to the Second Respondent as detailed later in these reasons. That evidence is however, irrelevant to the question of whether the Respondents discriminated against the Applicant. Likewise, no further evidence Ms Jane Hickey could give, I determined relevant to the question of the Court’s determination as to the motivation or actual conduct of the Second Respondent and whether he discriminated against the Applicant in her visa application such that his decision was affected by either sex and/or disability discrimination. Transcripts of previous evidence given by Ms Jane Hickey and relied upon by the Applicant are in the Court Book filed.

Background

The Applicant was born on 24 November 1952 and is now aged 62 years. She is a citizen of the United States of America. She has lived as a resident of Melbourne, Australia, since 1999. In March 2012, the Applicant completed a PhD in Management at RMIT University Melbourne. She is currently on a Bridging E (Class WE) visa granted on the 19 February 2015. Her travel facility is ‘no travel’ and her visa conditions are:-
8101 – No work
8506 – Notify change of address
8207 – No Study
The Applicant satisfied the criteria for the grant of the Bridging E visa because she was the subject of an application for judicial review of a decision to refuse the grant a visa and the judicial proceedings had not been completed. I shall return to this matter hereafter in these reasons.
On 21 May 2012 the Applicant applied for a Temporary Business Entry (Class UC) (Subclass 457) Business (Long Stay) Visa (‘the visa’). In that application the Applicant noted that the registered business name of her sponsoring employer was ‘Colby Nelson Hickey’.
The criteria for the grant of the visa sought by the Applicant are set out in Part 457 of Sch.2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). Clause 457.223(4) of Sch.2 to the Regulations relevantly required that “a standard business sponsor” had nominated an occupation in relation to the applicant and that the nomination had been approved by the Minister under s.140GB of the Migration Act. “Standard business sponsor” is defined in Reg.1.03 of the Regulations as “an approved sponsor”, a term which in turn is defined under s.5 of the Migration Act to mean “a person who has been approved by the Minister under section 140E” of the Migration Act. The relevant provisions of the Migration Act and the Regulations as in force at the time of the visa application are set out in the affidavit of Mr Hunter at exhibit DWH-2.
Concurrently, but separately, on 21 May 2012, Ms Jane Hickey, adoptive mother of Colby Hickey and VCAT appointed “Administrator” of the business “Colby Nelson Hickey” (‘the business’), made an application on behalf of the business to be approved as a “standard business sponsor” under s.140E of the Migration Act in Form 1196S “sponsoring overseas employees to work temporarily in Australia” (‘the sponsorship application’). Ms Jane Hickey also nominated an occupation in relation to the Applicant (Form 1196N: Nominating overseas employees to work temporarily in Australia). That was, of Education Manager, for approval by the Minister (‘the nomination application’). The Applicant was to be the ‘Education Manager’ in respect of the sole trader business ‘Colby Nelson Hickey’. Ms Jane Hickey was listed as the contact and ‘Administrator’ of the business. Her mobile phone number and email address were listed as the contact for inquiries with respect to the sponsorship and nomination applications. Those details were set out in clauses 15, 18 and 38 of Form 1196S and clauses 12 and 64 of Form 1196N. Forms 1196S and 1196N, along with supporting material, are contained in the affidavit of Mr Hunter, exhibit DWH-3. These documents are hereafter referred to as ‘the sponsorship application’.
On 31 May 2012, Mr Hunter, who was assigned to determine both the sponsorship and nomination applications, considered that the sponsorship application and the supporting material provided to the Department by Ms Jane Hickey were insufficient to satisfy reg.2.59 of the Regulations.
On 31 May 2012, Mr Hunter sent two detailed emails to Ms Jane Hickey requesting significant further information in support of the sponsorship and nomination applications. In both emails Mr Hunter told Ms Jane Hickey that she could withdraw the relevant application (sponsorship or nomination) “at any stage during the processing”. Those emails were relevantly as follows:-
a)31 May 2012 at 4.09 pm from Mr Hunter to Ms Jane Hickey (as to the nomination request):-
“Dear Jane Hickey,
This letter refers to your nomination application which was lodged with this office on 31/5/2012.
Processing your application
I have begun considering your nomination application for Patricia Eisele, in the occupation of Education Manager nec within your organisation. To facilitate the processing of your application, further information is required. A detailed list of the information required is provided below.
…
Withdrawing your nomination application
You can withdraw your nomination application at any stage during processing. To withdraw your application please write to me using the contact details provided in the section Contacting the Melbourne office below and include permission Request ID number.
Contacting the Melbourne office
If you need to contact us about your nomination application, we prefer that you do this by email. The email address for our processing office is:
[email protected].
This helps us to continue processing all nomination applications as quickly as we can. We try to respond to all email enquiries within one working day. If you do not have access to email or need to contact us urgently, you can send a fax to 03 9235 3206\
…”
b)31 May 2012 at 4.59 pm from Mr Hunter to Ms Jane Hickey (as to sponsorship request):-
Subject, Sponsorship Request ID 1030548727-Colby Nelson Hickey:
“Dear Mrs Hickey
This letter refers to your application for approval as a Standard Business Sponsor which was lodged with this office on 21/5/2012.
Processing your application
I have commenced considering your application for approval as a Standard Business Sponsor. To facilitate the processing of your application, further information is required. A detailed list of the information required is provided below.
…
Withdrawing your application
You can withdraw your application at any stage during processing. To withdraw your application please write to me using the contact details provided under my name at the end of this letter and include your Permission Request ID number.
Contacting the Melbourne office
If you need to contact us about your application, we prefer that you do this by email. The email address for our processing office is:
[email protected].
This helps us to continue processing all applications as quickly as we can. We try to respond to all email inquiries within one working day. If you do not have access to email or need to contact us urgently, you can send a fax to 03 9235 3206
…”
The above emails were sent to Ms Jane Hickey because, on the evidence of Mr Hunter, the supporting information for the sponsorship application was minimal and insufficient to satisfy him that “Colby Nelson Hickey” satisfied the criteria for approval as “a standard business sponsor” under reg.2.59 of the Regulations as in force at the time of the sponsorship application and 457 visa application. Mr Hunter noted by way of example that there was insufficient evidence that ‘Colby Nelson Hickey’ was lawfully operating a business in Australia as required under reg.2.59(c) of the Regulations. While the business had an Australian Business Number and was registered with ASIC, there was insufficient evidence that it was “operating, such as a business plan or evidence of day to day business transactions (for instance, paid invoices).” The business did not seem to have its own bank account, as Ms Jane Hickey had provided a statement from her own personal bank account amongst the supporting documents. Mr Hunter noted further that as a start-up business trading for less than 12 months, under reg.2.59(e) of the Regulations, the business had to have in place “an auditable plan” to meet the benchmarks for the training of Australian citizens and Australian permanent residents (see also reg. 2.59(d) of the Regulations). Mr Hunter’s evidence was also that the benchmarks were set out in legislative instrument, Specification of Training Benchmarks IMMI 09/107, and required the business ‘Colby Nelson Hickey’ to commit to paying at least 2% of its payroll business in the provision of training to the Australian citizen or permanent resident employees. The instrument also specified that expenditure could count toward the benchmarks such as paying a formal course of study for the Australian employees, employment of apprentices, trainees or recent graduates, evidence of payment of external training providers to deliver training for Australian employees and so on. While the sponsorship application contained an informal word document which set out briefly, training aspirations of the business, it did not have any evidence that the business for example had paid an external provider to deliver training to its Australian employees.
Due to the weaknesses in the sponsorship application, the required further supporting material was voluminous. Mr Hunter gave Ms Jane Hickey the standard 28 days to provide the information. He noted to Ms Jane Hickey, as can be observed in paragraph 13 herein, that she could withdraw her sponsorship application at any stage during the processing.
On 26 June 2012 Ms Jane Hickey responded to both of Mr Hunter’s emails of 31 May 2012 as follows:-
a)at 10.09 pm she emailed Mr Hunter requesting urgent withdrawal of her application for approval of the nomination of the Education Manager position with respect to the Applicant; and
b)at 11.17 pm she emailed Mr Hunter requesting urgent withdrawal of her application that the business ‘Colby Nelson Hickey’ be approved as “a standard business sponsor”.
Both emails from Ms Jane Hickey as described above, were received from the email address provided in the sponsorship application. Further, both emails were forwarded to both Mr Daniel Hunter and to the email address provided by Mr Hunter in his email correspondences to Ms Jane Hickey of 31 May 2012, under the heading “Withdrawing Your Application”, which noted the email address for the Department’s processing office. Further, both emails from Ms Jane Hickey included her Permission Request ID number, as required to be included in any withdrawal of application, and as previously advised by Mr Hunter to Ms Jane Hickey in his correspondences of 31 May 2012. The emails referred to in paragraph 18 and this paragraph were as follows:-
Sent on 26 June 2012 at 10:09pm
“Sponsor: Colby Nelson Hickey
Client ID: 74586244612
Nomination Request ID: 315549362
Nominee: Patricia Eisele
Dear Daniel Hunter,
I hereby formally request the withdrawal of this nomination application – client ID 74586244612, Nomination Request ID: 315549362. I am writing to you as instructed below [this was a reference to Mr Hunter’s correspondence of 31 May 2012] and also via reply email. It would be greatly appreciated if you could contact me to confirm this withdrawal as a matter of priority by telephone on 0406 743 272 and also by reply email.
Many thanks,
Jane Hickey
ph: 0406 743 272”
And further:-
Sent 26 June 2012 at 11:17pm
“Sponsor: Colby Nelson Hickey
Client ID: 74586244612
Sponsorship Request ID: 1030548727
Dear Daniel Hunter,
I hereby formally request the withdrawal of this application – client ID: 74586244612, Sponsorship Request ID: 1030548727. I am writing to you as instructed below [this referring to Mr Hunter’s email of 31 May 2012] and also via reply e-mail. It would be greatly appreciated if you could contact me to confirm this withdrawal as a matter of priority by telephone on 0406 743 272 and also by reply e-mail.
Many thanks,
Jane Hickey
ph: 0406 743 272”

On that same evening (26 June 2012), and at 11.45pm, Mr Hunter received an email from [email protected] purporting to be from Mr Hickey, the owner of the business ‘Colby Nelson Hickey’, seeking further time to provide information requested by Mr Hunter on 31 May 2012. The email noted that Ms Jane Hickey had been handling the sponsorship application, but that she was “ill and unable to continue” and asked Mr Hunter to direct all future correspondence to Mr Hickey via the email address provided. Attached to the email was a letter from a Dr Rosemary Crossley dated 12 June 2012 and addressed “To whom it may concern”. Amongst other things, Dr Crossley said that she had been providing augmentative communication services to Mr Hickey for 15 years. She said that Mr Hickey had Autism Spectrum Disorder (ASP) and Down Syndrome, could not speak and required to use communication aids with trained partners on an ongoing basis. Dr Crossley also stated that the Applicant had been providing services to Mr Hickey since January 2012 and “is now the primary communication specialist for Mr Hickey”.
The following day, being 27 June 2012, Mr Hunter received a phone call from Ms Jane Hickey confirming her withdrawal of the sponsorship application. Amongst other things, Ms Jane Hickey told Mr Hunter that she had agreed to help the Applicant gain a visa, but did not realise the extent of the requirements that needed to be satisfied for the sponsorship application to be approved. As a result, she no longer wished to proceed with the sponsorship application. Further, Ms Jane Hickey said that she believed that the email from [email protected] of 26 June 2012 was drafted and sent by the Applicant in an attempt to take control of the sponsorship application process. Mr Hunter’s record of the telephone conversation with Ms Jane Hickey is annexed to his affidavit and marked DWH8. It is a screenshot from the Department’s record management system. Mr Hunter’s evidence in the courtroom was that he identified Ms Jane Hickey as being the caller on this occasion, because she identified herself as such and because he would have verified the phone number ID which appeared before him, this being a matter of general practice in dealing with applicants for a 457 visa.
The information received in the phone call from Ms Jane Hickey, as noted by Mr Hunter, was as follows:-
“Jane phoned to confirm I had received her email requesting the withdrawal of both sponsorship and nomination applications made under the sole trader name ‘Colby Hickey’.
Colby Hickey is Jane’s son, who is Autistic and also has Down Syndrome, for whom Patricia Eisele has been acting as a carer for the past few months.
Jane stated that she had agreed to help Patricia gain a visa, but did not realise all the requirements needed for a 457 visa to be approved and no longer wished to proceed with the sponsorship/nomination of Patricia Eisele.
The email below from ‘Colby Hickey’ is believed to be written by Patricia Eisele (the nominee) as an attempt to take control of the sponsorship and nomination process. As confirmed in the letter from Dr Rosemary Crossley attached to the email, Colby is unable to communicate independently and requires the assistance of a communication aid.”
In evidence before the Court, Mr Hunter said that “he could have worded this last paragraph better”. The belief, as referred to therein, was a contention of Ms Jane Hickey’s.
Mr Hunter was not surprised by Ms Jane Hickey’s request to withdraw the sponsorship application. In his experience, weak applications were frequently withdrawn after the Department sent a prospective sponsor an email requesting further information akin to the emails he sent to Ms Jane Hickey on 31 May 2012. In his experience, businesses frequently agreed to employ applicants for a 457 visa without realising the extent of obligations imposed on business sponsors under the Migration Act and the Regulations.
Mr Hunter was suspicious of the credibility of the email from [email protected] of 26 June 2012, which stated that Ms Jane Hickey was unwell. He had already received the two emails referred to in paragraphs 18 and 19 herein from Ms Jane Hickey on 26 June 2012, withdrawing the sponsorship application, and was also then subsequently in receipt of her telephone call to confirm the withdrawal. He was also in possession of Dr Crossley’s letter. His evidence was that it was entirely plausible, as Ms Jane Hickey had alleged in their telephone conversation, that the Applicant in fact wrote the email to take control of the sponsorship application. Mr Hunter’s suspicion was reasonable and understandable. The Applicant admitted in cross-examination that she set up the email address for Mr Colby Hickey and assisted him type the email. She subsequently sent the email whilst not in the presence of Mr Hickey. Even so, the evidence of Mr Hunter and the totality of the evidence establishes that Mr Hunter did not take that into account in determining the Applicant’s visa application.
On 27 June 2012, Mr Hunter sent an email to Ms Jane Hickey confirming the withdrawal of the sponsorship application. The letter was addressed to the business name ‘Colby Nelson Hickey’. That letter said, relevantly, as follows:
“Dear Colby Nelson Hickey
I refer to the business sponsorship application lodged by the above named business [that is, the business sponsor applicant, Colby Nelson Hickey] with this office on 21/5/2012.
This is to confirm, as per your written request of 26/6/2012 requesting withdrawal, I have now withdrawn the business sponsorship application as at 27/6/2012.
If you have any queries about any of the matters raised above, please contact me at my contact details below.
Yours sincerely
Daniel Hunter”
The evidence before the Court of Mr Hunter, which is accepted, is that the Department’s policy, including for privacy reasons, is to deal with the person who made a visa or sponsorship application unless that person authorises someone else to become a contact or act on their behalf. Ms Jane Hickey was the contact for the sponsorship application, and signed both of the relevant forms. Accordingly, Mr Hunter did not respond to the email from [email protected]. That email address was not listed anywhere in the sponsorship application forms and could have been created and used by anyone. Mr Hunter had also spoken to his team manager about the conflicting email he received from [email protected] on the evening of 26 June 2012. She confirmed the Departmental policy and requirement that the Department deal or correspond as to the application, exclusively with the applicant or an authorised recipient.
Ms Jane Hickey did not require Mr Hunter’s permission to withdraw the sponsorship application. No approval is needed from the delegate or the Minister to withdraw such an application. In the circumstances of this case, the sponsorship application was withdrawn by Ms Jane Hickey, she being the person who made the sponsorship application and who was the contact for the application. Her email and telephone details were provided on the application.
As Ms Jane Hickey had then withdrawn the sponsorship application, the Applicant, unless she found another sponsor, could not satisfy cl.457.223(4) of Sch.2 to the Regulations. As a result, Mr Hunter wrote to the Applicant on 27 June 2015 advising her, relevantly, as follows:-
“Dear Patricia Eisele
This letter refers to your application for a Subclass 457 – Business (Long Stay) visa, which was lodged at Melbourne Business Centre on 21/5/2012.
One of the criteria for the grant of a Subclass 457 – Business (Long Stay) visa is an approved nomination. Your prospective employer, Colby Nelson Hickey, does not have an approved nomination for you at this time. As a result, your visa application is unlikely to be successful.
If you wish to seek more information regarding why your prospective employer does not have an approved nomination for you, please be advised that you will need to contact them directly.
Impact on your visa application
In the absence of an approved nomination from your prospective sponsor, you can provide comment on your intentions regarding your visa application (including providing evidence that you are the subject of an approved nomination) prior to a decision being made on your visa application.
Please be advised that you are provided with 28 calendar days from the date of receipt of this letter to respond. No further action will be taken on your application until a response is received, or the period for reply has passed.
If you do not respond within the above timeframe, a decision may be made on your application based on the information already on hand.
Withdrawing your application
You can withdraw your application at any stage during processing. If an applicant wishes to withdraw their application, they must advise the department in writing…”
Mr Hunter referred to ‘Colby Nelson Hickey’ in his communication above, rather than Ms Jane Hickey, because ‘Colby Nelson Hickey’ was the registered business name of the business.
On 9 July 2015, Mr Hunter received an email from Ms Jane Hickey, from the same email address provided in the sponsorship and nomination applications, informing him that since the withdrawal of the sponsorship application, the Applicant's employment had been terminated by the business, and alleging that the Applicant had entered into an "inappropriate relationship" with Mr Hickey.
Mr Hunter's evidence was, further, that Ms Jane Hickey advised, she had been advised by Mr Hickey, that Mr Hickey and the Applicant were in love and intended to marry. Mr Hunter's evidence, supported by the Department's records annexed to his affidavit, indicate that this email of 9 July 2012, was the first time that Ms Jane Hickey had said anything about a relationship existing between the Applicant and Mr Hickey that was not business in nature.
Mr Hunter did not immediately reply to Ms Jane Hickey's email, as her sponsorship application had already been withdrawn, and the further information provided by her, in its totality, was not relevant to the sponsorship application or its withdrawal.
On 16 July 2012, Mr Hunter received an email from Ms Jane Hickey following up on her email of 9 July 2012. On that same day, he sent an email to Ms Jane Hickey advising her, amongst other things, that "the reasons for withdrawing the sponsorship and nomination applications are not relevant to the Department."
Mr Hunter further advised on 16 July 2012:
“…Your claims will be stored with the withdrawn applications, however the information may only be looked at if Colby was to lodge fresh 457 sponsorship and nomination applications (or someone made applications on his behalf).
If Colby and Patricia were to marry, and subsequently lodged some sort of partner visa application, the genuineness and merits of their relationship would be examined very closely and would have to satisfy a number of requirements to be approved. I do not have knowledge of the partner visa regulations, so I cannot give you further information in that regard.
If the above scenario was to play out, you may wish to consider the information on I am sympathetic to your situation, at this point there is no action that can be taken by the Department.”
Mr Colby Hickey did not lodge any fresh 457 sponsorship and nomination applications, nor anyone on his behalf. The claims made by Ms Jane Hickey were stored with the withdrawn sponsorship and nomination applications of the business, and not with the Applicant's application for a visa.
On 25 July 2012, Mr Hunter received an email from the Applicant's migration agent seeking an extension of time so that the Applicant could "put in a new nomination and sponsorship form". It said relevantly:-
“Dear Daniel,
Client name: Patricia Eisele
Date of birth: 24/11/52
Client ID: 52432050902
Further to our conversation please find a 956 form signed by my client. (In fact, Mr Hunter’s evidence is that he never sighted such form.)
As mentioned on the phone I would like to get an extension of time so my client can put a new nomination and sponsorship form.
Warm regards,
Marzena Siedlecka.”
Mr Hunter replied to the above migration agent's email on 26 July 2012, relevantly, as follows:-
“Dear Marzena,
I am prepared to give an extension until Thursday 09/08/2012.
Please submit the new sponsorship and nomination applications before this date. If the applications have not been received by this date, I will make a decision on the visa application.”
On 15 August 2012, having received no further correspondence from the Applicant or her migration agent, Mr Hunter determined to reject the Applicant's application for the visa, because she did not satisfy cl.457.223(4)(a) of Sch.2 to the Regulations requiring that a standard business sponsor had nominated an occupation in relation to the Applicant, and that the nomination had been approved by the Minister under reg.140GB of the Regulations.
Mr Hunter’s (the delegate) Decision Record was forwarded to the Applicant on 15 August 2012. That Decision Record included, relevantly, the following:-
Subclause 457.223(4)(a) of the Regulations states in full:-
“Standard business sponsorship
(4) The applicant meets the requirements of this subclause if:
(a) either:
(i) if the applicant and a business activity specified in the application and relating to the applicant were the subject of an approved business nomination under regulation 1.20H as in force immediately prior to 14 September 2009:
(A) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved; and
(B) the approval of the nomination has not ceased to have effect under subregulation 1.20H (5) as in force immediately prior to 14 September 2009;or
(ii) if a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act:
(A) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved; and
(B) the approval of the nomination has not ceased as provided for in regulation 2.75; and
Note The definition of occupation in clause 457.111 includes the activity mentioned in subparagraph (i).
…”
“…On 27/6/2012, the sponsorship application corresponding to the applicant's visa was withdrawn by the applicant's prospective employer, Colby Nelson Hickey. As the primary applicant's prospective employer is not an approved standard business sponsor, the nomination application lodged by the primary applicant's prospective employer was unable to be assessed.
On 27/06/2012, the applicant was provided an opportunity to comment on their intentions regarding this visa application, including providing evidence that they are the subject of an approved nomination.
On 26/07/2012, an extension until 09/08/2012 was given to the applicant. To date, no response has been received.
As the primary applicant's business activity is not subject to an approved business nomination, I am therefore, not satisfied that paragraph 457.223(4)(a) has been met…”
On 31 August 2012, the Applicant applied to the Migration Review Tribunal (as it then was) (‘the Tribunal’) for a review of the delegate's decision. On 8 May 2013, the Tribunal handed down its decision, in which it determined that it had no jurisdiction.
On 11 June 2013, the Applicant lodged an application for judicial review of that decision of the Tribunal in the Court. The Applicant challenged the decision of the Tribunal on the grounds that the decision was made contrary to natural justice, and that the Tribunal did not apply procedural fairness to the Applicant.
In those proceedings, the Applicant contended that Mr Hunter's administrative decisions were decisions to discriminate in breach of the DDA and the SDA, amongst other complaints, and the Applicant requested the Court consider the discrimination issues under s.18 of the Federal Circuit Court of Australia Act1999 (Cth), which deals with the Court's jurisdiction in associated matters.
The Court determined that no jurisdictional error attended the decision of the Tribunal, and, in respect of the Applicant's arguments as to discrimination on the basis of disability or sex, determined that there was no evidence before the Court to establish that Mr Hunter's decisions involved such discrimination, and that those proceedings were not the appropriate proceeding in which to deal with such allegations. In Eisele v Minister for Immigration & Anor [2014] FCCA 677 Judge Whelan said:-
“48. There is nothing in this case to suggest that the decision under review, that is, the decision of the Tribunal, involved either discrimination on the basis of disability or sex. If either of those was true of the decision-maker by Mr Hunter, and there is no evidence before this Court to establish that they were, then this is not the appropriate proceeding in which to deal with such allegations.
49. There may well be real issues to be tried with respect to how the sponsorship application in this matter came to be withdrawn, but they are not matters which can be dealt with in what is, essentially, a proceeding under the Act for judicial review of a decision by the Tribunal.”[1]
[1] Eisele v Minister for Immigration & Anor [2014] FCCA 677 at [48] - [49].
On 21 June 2014, the Applicant complained to the Australian Human Rights Commission (‘AHRC’) that she had suffered discrimination by the Respondents under the SDA and DDA. On 9 December 2014, her complaint was terminated as "misconceived" by the AHRC under s.46PH(1)(c) of the Australian Human Rights Commission Act 1986 (Cth) (‘the AHRC Act’).
On 5 February 2015, the Applicant filed an application in the Court alleging unlawful discrimination. On 2 March 2016, the Applicant filed a further amended application, upon which she relied on the hearing of this matter.

Relevant law

Sex Discrimination Act 1984 (Cth)

The relevant provisions of the SDA as set out in the further amended application are ss.6, 7B, 7C, 22, 26 and 108. They were, at the relevant time, as follows:-
Section 6:-
“ Discrimination on the ground of marital status
(1) For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the marital status of the aggrieved person if, by reason of:
(a) the marital status of the aggrieved person; or
(b) a characteristic that appertains generally to persons of the marital status of the aggrieved person; or
(c) a characteristic that is generally imputed to persons of the marital status of the aggrieved person;
the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different marital status.
(2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the marital status of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same marital or relationship status as the aggrieved person.
(3) This section has effect subject to sections 7B and 7D.”
Section 7B:-
“ Indirect discrimination: reasonableness test
(1) A person does not discriminate against another person by imposing, or proposing to impose, a condition, requirement or practice that has, or is likely to have, the disadvantaging effect mentioned in subsection 5(2), 6(2), 7(2) or 7AA(2) or section 7A if the condition, requirement or practice is reasonable in the circumstances.
(2) The matters to be taken into account in deciding whether a condition, requirement or practice is reasonable in the circumstances include:
(a) the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the condition, requirement or practice; and
(b) the feasibility of overcoming or mitigating the disadvantage; and
(c) whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the condition, requirement or practice.”
Section 7C:-
“Burden of proof
In a proceeding under this Act, the burden of proving that an act does not constitute discrimination because of section 7B lies on the person who did the act.”
Section 22:-
“Goods, services and facilities
(1) It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's sex, marital status, pregnancy or potential pregnancy, or breastfeeding:
(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person;
(b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
(c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.
(2) This section binds the Crown in right of a State.”
Section 26:-
“Administration of Commonwealth laws and programs
(1) It is unlawful for a person who performs any function or exercises any power under a Commonwealth law or for the purposes of a Commonwealth program, or has any other responsibility for the administration of a Commonwealth law or the conduct of a Commonwealth program, to discriminate against another person, on the ground of the other person's sex, maritial status, pregnancy or potential pregnancy, or breastfeeding, in the performance of that function, the exercise of that power or the fulfilment of that responsibility.
(2) This section binds the Crown in right of a State.”
Section 108:-
“Commonwealth deemed to be employer
For the purposes of this Act, all Commonwealth employees shall be deemed to be employed by the Commonwealth.”

The key provision in these proceedings is s.6 of the SDA. The Applicant's claim was discrimination on the ground of marital status. After the close of evidence, and in closing submissions, the Applicant sought to rely upon s.6(1)(b) and (c), rather than s.6(1)(a) of the SDA.
The Applicant's own evidence before the Court is that she has never had an intimate relationship with Mr Hickey, and nor has she lived with him.
Marital status was relevantly defined in s.4 of the SDA to mean:-
“Marital status means the status or condition of being:
(a) single;
(b) married;
(c) married but living separately and apart from one's spouse;
(d) divorced;
(e) widowed; or
(f) the de facto spouse of another person.”
De facto spouse was relevantly defined in s.4 of the SDA to mean:-
“De facto spouse, in relation to a person, means a person of the opposite sex to the first-mentioned person who lives with the first‑mentioned person as the husband or wife of that person on a bona fide domestic basis although not legally married to that person.”

Disability Discrimination Act 1992 (Cth)

The relevant provisions of the DDA as set out in the further amended application are ss.5, 6, 7 and 8. Essentially those provisions would prohibit the Respondents, directly or indirectly, discriminating against the Applicant:-
a)on the ground of a disability of any of her "associates" (s.7); or
b)on the ground that she has an "associate (with a disability)" who has a “carer or assistant” (ss.7 and 8 combined).
An "associate" of the Applicant would include another person who is living in a relationship with the Applicant on a genuine domestic basis, or another person who is in a business relationship with the Applicant (see s.4(1)). A “carer or assistant” in relation to a person with a disability has the meaning giving in s.9(1). The DDA also prohibits discrimination in the provision of services (s.24) or the administration of Commonwealth laws and programs (s.29).
Section 5 of the DDA states:-
“Direct disability discrimination
(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.
(2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and
(b) the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.
(3) For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.”
Section 6 of the DDA states:-
“Indirect disability discrimination
(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and
(b) because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and
(c) the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.
(2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and
(b) because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and
(c) the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.
(3) Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case.
(4) For the purposes of subsection (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition.”
Section 7 of the DDA states:-
“Discrimination in relation to associates
(1) This Act applies in relation to a person who has an associate with a disability in the same way as it applies in relation to a person with the disability.
Example: It is unlawful, under section 15, for an employer to discriminate against an employee on the ground of a disability of any of the employee’s associates.
(2) For the purposes of subsection (1), but without limiting that subsection, this Act has effect in relation to a person who has an associate with a disability as if:
(a) each reference to something being done or needed because of a disability were a reference to the thing being done or needed because of the fact that the person has an associate with the disability; and
(b) each other reference to a disability were a reference to the disability of the associate.
(3) This section does not apply to section 53 or 54(combat duties and peacekeeping services) or subsection 54A(2) or (3) (assistance animals).
Note: The combined effect of sections 7 and 8 is that this Act applies in relation to a person who has an associate who has a carer, assistant, assistance animal or disability aid in the same way as it applies in relation to a person with a disability.”
Section 8 of the DDA states:-
“Discrimination in relation to carers, assistants, assistance animals and disability aids
(1) This Act applies in relation to having a carer, assistant, assistance animal or disability aid in the same way as it applies in relation to having a disability.
Example: For the purposes of section 5 (direct discrimination), circumstances are not materially different because of the fact that a person with a disability requires adjustments for the person’s carer, assistant, assistance animal or disability aid (see subsection 5(3)).
(2) For the purposes of subsection (1), but without limiting that subsection, this Act has effect in relation to a person with a disability who has a carer, assistant, assistance animal or disability aid as if:
(a) each reference to something being done or needed because of a disability were a reference to the thing being done or needed because of the fact that the person has the carer, assistant, animal or aid; and
(b) each other reference to a disability were a reference to the carer, assistant, animal or aid.
(3) This section does not apply to section 48 (infectious diseases) or section 54A (exemptions in relation to assistance animal).
Note: The combined effect of sections 7 and 8 is that this Act applies in relation to a person who has an associate who has a carer, assistant, assistance animal or disability aid in the same way as it applies in relation to a person with a disability.”

Consideration

The Applicant's evidence goes to four acts complained of wherein it is alleged that these acts found an allegation of sex and/or disability discrimination. Those acts are:-
a)Mr Hunter giving effect to Ms Jane Hickey's withdrawal of the sponsorship and nomination applications;
b)Mr Hunter failing to conduct "due diligence" regarding whether it was actually Ms Jane Hickey making the withdrawal request. The Applicant asserts that a person other than Ms Jane Hickey was the author of the emails of 26 June 2012 (as set out in paragraphs 18 and 19 herein) and the caller, identified by Mr Hunter as Ms Hickey, in the phone conversation of 27 June 2012;
c)Mr Hunter's failure to act on the instruction received in the email request from email [email protected] and provide more time to Mr Hickey to provide information; and
d)Mr Hunter's refusal of the application for a visa.
The allegation of breaches of the SDA and the DDA are considered in relation to the above matters. None of the above actions, it is argued by the Respondents, were done “on the ground of” or “by reason of”, an attribute under either the SDA or the DDA.[2] Either because of the marital status of the Applicant under the SDA, or by reason that the Applicant had an associate with a disability who had a carer or assistant under ss. 7 and 8 of the DDA. Rather the evidence goes to all of the actions taken by Mr Hunter as being for reasons that are not unlawful.
[2] Waters v Public Transport Corporation (1991) 173 CLR 349, 359 (per Mason CJ and Gaudran J).

Sex Discrimination Act

This Act does not apply to the factual matters which are before the Court. There is no evidence that Mr Hunter was aware of, or took into account, the Applicant's marital status as defined by the SDA.
On the Applicant's own evidence she was not in a de facto relationship with Mr Hickey and never lived with him. Accordingly, she did not meet the definition of marital status and therefore could not be discriminated against on this basis. At the time Mr Hunter gave effect to the withdrawal of the sponsorship and nomination applications he knew nothing about any alleged "inappropriate de facto relationship". He was not so informed of such allegation until 9 July 2012, and that was of an inappropriate relationship, not inappropriate ‘de facto relationship’, which was a time after he had given effect to the withdrawal of the applications.
Mr Hunter's evidence, supported by documentation before the Court, is that he advised Ms Jane Hickey that the reason for withdrawal of her applications was not relevant. Such note in the evidence is a contemporaneous note of Mr Hunter's state of mind, highlighting that the reason for him giving effect to the withdrawal of the applications was that the person who filed same, namely, Ms Jane Hickey, had requested, as she was entitled to, their withdrawal. The only knowledge Mr Hunter had at the time as to the Applicant's marital status was that she was divorced, that information being contained in her application for the visa.
In closing submissions the Applicant, sought to rely on the other subparagraphs of s.6(1), namely, subparagraphs (b) and (c). Those submissions did not go to any satisfaction by the Court that discrimination on the ground of marital status under the SDA can be made out.

Disability Discrimination Act

In respect of the claims made under the DDA there is no evidence that there was discrimination by the Respondents against the Applicant either directly or indirectly. There is no evidence of any specific treatment by Mr Hunter toward the Applicant that can be characterised as discrimination against her because of Mr Hickey's disability or because Mr Hickey had a carer or assistant. Mr Hunter did not treat the Applicant unfavourably and nor did he impose a requirement or condition on her that she was unable to comply with because she was an associate of Mr Hickey.
The Applicant's argument that Mr Hunter discriminated against her by failing to follow Mr Hickey's instruction in the email from [email protected], or by failing to provide the reasonable adjustment of time, is irrelevant to her claims to suffer discrimination. Those alleged acts were in regard to Mr Hickey himself, not the Applicant.
The Applicant's assertion that it may not have been Ms Jane Hickey who contacted Mr Hunter, which she subsequently asserted in evidence as a fact that it was not Ms Hickey who contacted Mr Hunter by email or phone, is irrelevant. Even if it were not Ms Hickey who contacted the Department by both phone and email, Mr Hunter acted reasonably in relying on the information that he had received from the email address as contained in the application and the phone number which corresponded with the application. His actions were not of unjust and unlawful discrimination. His conduct, as measured against the requirements of the DDA, point to no material difference in treatment of the Applicant at all, or by virtue of her association with Mr Hickey.[3]
[3] Purvis v State of New South Wales (Department of Education and Training) & Anor [2003] HCA 62, [13] (per Gleeson CJ).
Further, the Applicant's argument that Mr Hunter failed to carry out due diligence by inquiring further as to whether he was communicating with Ms Jane Hickey is answered by there being no duty to inquire in this context beyond the normal checks of Departmental procedure, and that, further, there was no obvious inquiry to make in respect of Ms Hickey's two emails and one phone call which followed up on her request as set out in the two prior emails.
The Applicant's reliance on Auscript transcripts of evidence given by Ms Jane Hickey in the Magistrates' Court of Victoria at Melbourne on the 9 November 2012 and the 20 March 2014 are, in these proceedings, misconceived. In the second of these transcripts the Applicant seeks to rely upon Ms Jane Hickey’s evidence in a proceeding some 21 months after the events in question, being an intervention order proceeding. It is in an exchange between the Applicant and Ms Jane Hickey on Thursday, 20 March 2014, the relevant part being as follows:-
“Dr Eisele: You called the Department of Immigration. This letter was the 27^th- they said they got the call from you on the 26^th - and you made some statements to them. What was the reason, then, for you calling them and withdrawing my - your support - your sponsorship when I already had ---
Her Honour: Okay. So that's sufficient.
Dr Eisele: --- when I had a full-time contract.
Her Honour: What was the reason for calling them? What was the reason for calling them?
Dr Eisele: For calling them? --- We weren't going to continue on. Why?
Her Honour: Yes. So ---
The Witness: Because you weren't working for us any more.
Her Honour: No, no.
Dr Eisele: No, I was. I wasn't dismissed. This was 27 June. I wasn't dismissed until 8 July. What was the reason given?---Well, I didn't ring them. Why would I have done that?
Because this letter - did Colby ring them? He can't talk on the phone. This is 27 June when you withdrew sponsorship, 27 June?---I - well, I definitely didn't withdraw sponsorship until you were dismissed. Why would I do that?
If you could show - if - I will have the---
Her Honour: Well, she can't comment on that.”
In the first of these transcripts, being on the 9 November 2012, and therefore much closer in time to the relevant events, again in intervention order proceedings, the exchange between the Applicant and Ms Jane Hickey is as follows:-
“Her Honour: Thank you, everybody. Is this Jane Hickey?
Ms ……: Yes.
Her Honour: And you’re support in court today, are you?
Ms …..: I’m Michelle. Yes.
Ms Hickey: And also Michelle’s one of Colby’s carers as well.
Her Honour: Okay. Just one moment. I will read through the application. Okay. So, Ms Hickey, in order to consider the application you’re seeking an interim intervention order today. I need to hear evidence on oath. Are you …. to stand in the witness box. Yes. Thanks.
Jane Hickey, sworn
Ms Hickey: And then he disclosed to his psychologist that, you know, he was in a sexual relationship with her – that they were going to marry – so that she could stay in the country. And it just went on and on and on. I went to Colby’s lawyers, who advised that I terminate her immediately, and contact the immigration department, which we did, and we removed our sponsorship.
Her Honour: When did you dismiss her?
Ms Michelle: She was dismissed on – I have the letter here – the 8^th of July.”
This evidence, in the totality of the evidence, does not go to establish that Ms Hickey was not the caller on the phone who spoke with Mr Hunter. Indeed, the Court draws the inference that it was, in fact, Ms Hickey who spoke with Mr Hunter. This inference is drawn on the basis of Mr Hunter's evidence, both oral and documentary, which is accepted by the Court. The transcripts establish a confusion in the witness about timing, but not the fact of withdrawal of the sponsorship application.
Mr Hunter gave evidence, when asked by the Applicant, as to why he did not respond to the email from [email protected] of 26 June 2012. His response was coherent and considered, as was all the evidence given by him. He was an impressive and truthful witness. His response was that, firstly, it was not from the authorised email address. Further, that he had spoken to his team leader as to the conflicts between the two emails from differing email addresses. There was no requirement for Mr Hunter to speak with his team leader. He simply was required to correspond with the authorised email address. Nevertheless, his evidence is that he received advice from his team leader to follow the instructions as contained in the authorised email address.
Mr Hunter's suspicion as to the author of the email from [email protected] did not affect his treatment of the Applicant. That suspicion was not determinative of, and nor indeed involved in his decision, as to whether to grant or not grant the Applicant the visa.
Mr Hunter said on reflection, when asked by the Applicant, that he could have done more by responding to the [email protected] and advising the author of that email to speak to the authorised contact. His failure to not follow through in this manner, given he was under no obligation to do so, was not an act of discrimination against the Applicant. The only reason the Applicant did not obtain the visa was because she did not have a nomination. Mr Hunter believed there was no sponsorship application which was the essential criteria for the grant of the Applicant’s visa. The Applicant admitted in evidence that Mr Hunter held such belief.
Even if there were problems associated with the withdrawal of the applications, including issues of identity or conflicting information between emails, the Applicant had an opportunity to correct those matters when provided with more time by Mr Hunter to provide him with further information following withdrawal of the sponsorship application. The Applicant did not indicate any concerns regarding the visa process. The Applicant failed to respond at all. The rejection of her visa was because she failed to meet an essential criteria, not because of the withdrawal in strict terms of the sponsorship. The Applicant was given, indeed, ample opportunity, to correct the deficiency in her visa application.
Mr Hunter did not treat Mr Hickey unfavourably or impose a requirement or condition on Mr Hickey that he could not comply with. Ms Jane Hickey was the person listed as the relevant contact on the sponsorship and nomination application forms and Mr Hunter was entitled to rely on her withdrawal. Further, there was no requirement for Mr Hunter to provide reasonable adjustments. There was nothing in the email from [email protected] dated 26 June 2012 that suggested Mr Hickey required more time “by reason of his disability”.
Ms Jane Hickey was the authorised contact for the Department. It was her right to withdraw her applications. She was the authorised contact for the business. Mr Hunter gave effect to her request to withdraw the applications. He gave very clear evidence as to the actions he took to verify the withdrawal requests. It is irrelevant whether the Applicant considered Ms Hickey authorised or not to act on behalf of Mr Colby Hickey.

The action of Mr Hunter was not unfavourable treatment of the Applicant and nor did it impose a requirement or condition that she could not comply with. The evidence does not establish unfavourable treatment of the Applicant. What the evidence discloses is a standard employee visa application process.

Conclusion

The application must be dismissed. Costs have been sought by the Respondents. As indicated at the trial of this matter the matter will be listed subsequently for a hearing as to whether there is an order for costs, and their quantum, on a date to be fixed, being a date that is convenient to the parties and the Court.
The Applicant submitted in closing address that these proceedings were brought by her on the grounds as set out in her application and because she is concerned as to her migration status in this country. Her inability to derive income given the conditions of her bridging visa in the last two years, her long term personal relationship in this country of some 18 years, and her prospects, which she believes are nil, of re-entering the country upon departure by virtue of her inability to obtain any form of visa, are not matters pertinent to determining the application before the Court. They may go to one of the many reasons for the proceedings, but they are not strictly relevant, to the proceedings. It is a difficult situation the Applicant finds herself in. But that does not make meritorious her application.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate:

Date: 13 May 2016