Singh v TAJ (Sydney) Pty Limited

The appeal concerned a worker, Mr Singh, who sustained a workplace injury and subsequently experienced a change in his visa status, which disentitled him from working. The primary dispute was whether the Arbitrator, and subsequently the Deputy President of the Workers Compensation Commission, erred in dismissing Mr Singh's claim for compensation on the basis of his visa status. The appeal was heard by Beazley JA, Santow JA, and Tobias JA.

The legal issues before the court were whether the Arbitrator misconstrued or misapplied section 40 of the *Workers Compensation Act* by considering the appellant's visa status when determining his entitlement to compensation, and whether the Deputy President erred in confirming this dismissal. Specifically, the court had to determine if the appellant's inability to legally work due to his visa status was a relevant factor in calculating his probable earnings but for the injury, as contemplated by section 40.

The Court of Appeal allowed the appeal, finding that both the Arbitrator and the Deputy President had erred in law. The court held that section 40 of the *Workers Compensation Act* requires the determination of probable earnings in similar employment but for the injury, and that a worker's subsequent inability to work due to immigration status, unrelated to the injury itself, is irrelevant to this calculation. The reasoning in *Viliami* was distinguished, as it concerned a situation where the worker was already unable to earn due to circumstances unassociated with the injury, whereas here, the injury occurred when the appellant was lawfully employed and his visa status changed later. The court emphasised that the focus of section 40 is on the worker's earning capacity in the labour market, not their legal entitlement to work.

Consequently, the Court of Appeal set aside the decision of the Acting Deputy President and the award made by the Arbitrator. The matter was remitted to the Workers Compensation Commission for redetermination according to law, and the respondent was ordered to pay the appellant's costs of the appeal.