FEDERAL COURT OF AUSTRALIA

Eisele v Commonwealth of Australia [2018] FCA 15

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondents’ costs of the appeal, to be taxed if not agreed.

3.    If the appellant wishes to seek a variation of paragraph 2, she may within seven days file and serve a written submission (of no more than two pages). In that event, the respondents may within a further seven days file and serve a responding written submission (of no more than two pages).

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    The appellant, Dr Patricia Eisele (Dr Eisele), a citizen of the United States of America who had lived in Australia for many years, applied in May 2012 for a Temporary Business Entry (Class UC) – Business (Long Stay) (Subclass 457) visa (a Subclass 457 visa). At the same time, Colby Hickey (Mr Hickey), who carried on a business of providing education access workers to support students with disabilities, applied for approval as a business sponsor under the relevant provision of the Migration Act 1958 (Cth) (the Business Sponsor Application) and nominated Dr Eisele for the position of Education Manager in his business (the Nomination). Both the Business Sponsor Application and the Nomination were signed by Jane Hickey (Ms Hickey), Mr Hickey’s mother, in her capacity as the Administrator of the business. Ms Hickey was named as the contact officer for enquiries, and her mobile telephone number and email address were provided, on both the Business Sponsor Application and the Nomination.

2    The Business Sponsor Application and the Nomination were considered by the second respondent, Daniel Hunter (Mr Hunter), who was an officer of the Department of Immigration and Citizenship (the Department), as it was then called. Mr Hunter considered that further information was required in respect of both the Business Sponsor Application and the Nomination, and wrote to Ms Hickey to this effect.

3    On the evening of 26 June 2012, two emails were sent, purportedly by Ms Hickey, to Mr Hunter. One email requested the withdrawal of the Business Sponsor Application; the other requested the withdrawal of the Nomination. The emails were sent from Ms Hickey’s email address, as specified in the Business Sponsor Application and the Nomination.

4    Later on the same evening, two emails were sent, purportedly by Mr Hickey, to Mr Hunter. One related to the Business Sponsor Application, the other to the Nomination. Each email stated that: Mr Hickey was the owner of the business; Mr Hickey sought additional time to produce the information that had been requested; Mr Hickey’s mother, Ms Hickey, was ill and unable to continue handling the matter; and Mr Hickey had started the business but required the assistance of Dr Eisele to develop it. The emails from Mr Hickey concluded: “Please see the attached statement regarding my disability and direct all future correspondence to me at this email address.” The attached statement, from the Anne McDonald Centre, stated that Mr Hickey has Autism Spectrum Disorder and Down Syndrome, and that he does not speak and requires the use of communication aids with trained partners on an ongoing basis. The emails from Mr Hickey came from a different email address to that specified in the Business Sponsor Application and the Nomination.

5    The next day (that is, 27 June 2012), Mr Hunter received a phone call. The caller identified herself as Jane Hickey and stated that she was calling to confirm that Mr Hunter had received her emails withdrawing the Business Sponsor Application and the Nomination.

6    Later on 27 June 2012, Mr Hunter sent an email to Ms Hickey with a letter confirming the withdrawal of the Business Sponsor Application. On the same day, Mr Hunter sent an email to Dr Eisele attaching a letter to the effect that: one of the criteria for the grant of a Subclass 457 visa was an approved nomination; Dr Eisele’s prospective employer, Mr Hickey, did not have an approved nomination for Dr Eisele at this time; and as a result, her visa application was unlikely to be successful.

7    On 15 August 2012, Mr Hunter sent another letter to Dr Eisele. The letter gave notice that Mr Hunter, as a delegate of the Minister for Immigration and Citizenship (the Minister), had decided to refuse Dr Eisele’s application for a Subclass 457 visa. The letter stated that she did not meet the relevant criteria.

8    In 2015, Dr Eisele commenced a proceeding in the Federal Circuit Court of Australia against the Commonwealth of Australia and Mr Hunter alleging that they had discriminated against her in breach of the Sex Discrimination Act 1984 (Cth) and the Disability Discrimination Act 1992 (Cth). In relation to the Disability Discrimination Act, Dr Eisele relied, in particular, on ss 7 and 8 of the Act. Section 7 provides, in summary, that the 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. Dr Eisele contended that she was a person who had an associate with a disability (namely, Mr Hickey) and that she had been the subject of discrimination. Section 8 relevantly provides, in summary, that the Act applies in relation to having a carer or assistant in the same way as it applies in relation to having a disability. Dr Eisele relied on the fact that Mr Hickey had a carer or assistant, namely herself. Dr Eisele’s complaints, in brief summary, related to Mr Hunter’s acceptance of the withdrawals of the Business Sponsor Application and the Nomination, and his failure to follow up, or make other reasonable adjustments in light of, the emails from Mr Hickey referred to above.

9    At the trial before the primary judge, Dr Eisele sought to rely on evidence from Ms Hickey and Mr Hickey, both of whom she had subpoenaed to give evidence. Both Ms Hickey and Mr Hickey, who were represented by counsel and a solicitor, objected to being required to give evidence. The primary judge ruled that the subpoenas be set aside. Her Honour provided reasons for this ruling in her later reasons for judgment. The principal basis for the ruling was that the proposed evidence was not relevant.

10    On 13 May 2016, the primary judge dismissed Dr Eisele’s claims. The primary judge held that the Sex Discrimination Act did not apply to the factual matters before the Court. In relation to the Disability Discrimination Act, the primary judge concluded that Mr Hunter had not discriminated against Dr Eisele, either directly or indirectly.

11    On 23 August 2016, Dr Eisele was granted an extension of time to file a notice of appeal from the judgment of the Federal Circuit Court. The appeal was originally due to be heard in May 2017, but in April 2017, at the request of Dr Eisele, I deferred the hearing until September 2017. In circumstances where Dr Eisele was representing herself and would be unable to appear in person (as she was living in the United States), I permitted Dr Eisele to ‘appear’ by telephone at the hearing of the appeal.

12    Before the hearing of the appeal, the respondents filed a notice of objection to competency by which they contended that the appeal was incompetent insofar as it sought to appeal from the decisions to set aside the subpoenas. The respondents contended that: the decisions to set aside the subpoenas were interlocutory decisions in respect of which leave to appeal was required; and Dr Eisele had neither sought nor been granted leave to appeal. At the hearing of the appeal, I raised with counsel for the respondents whether this issue could be addressed by treating Dr Eisele’s appeal submissions as an application for leave to appeal (if leave was required) and as an application for an extension of time in which to seek such leave. Counsel for the respondents indicated that the respondents were content to proceed in this way. Dr Eisele indicated that she was also content to proceed in this way. Counsel for the respondents confirmed that, in light of this, the objection to competency fell away.

13    In addition to her challenge to the subpoena decisions, Dr Eisele challenges some of the primary judge’s factual findings, and contends that the primary judge erred in her consideration of Dr Eisele’s case based on the Sex Discrimination Act and the Disability Discrimination Act.

14    For the reasons that follow, I have concluded that leave to appeal is not required in relation to the subpoena decisions. I have also concluded that the appeal should be dismissed.

Background facts

15    The following statement of the facts is largely based on the reasons for judgment of the primary judge: Eisele v Commonwealth of Australia & Anor [2016] FCCA 1155 (the Reasons). I have also drawn on certain documents in the Appeal Book.

16    Dr Eisele is a citizen of the United States of America. She lived in Australia from 1999, and was living in Australia at the time of the trial (23 and 24 March 2016). In March 2012, Dr Eisele completed a PhD in Management at RMIT University. At the time of the trial, she held a Bridging E (Class WE) visa.

17    On 21 May 2012, Dr Eisele applied for a Subclass 457 visa. In the section of the application form for details of the applicant’s sponsoring employer, Dr Eisele identified “Colby Nelson Hickey”. The criteria for the grant of a Subclass 457 visa were set out in Pt 457 of Sch 2 to the Migration Regulations 1994 (Cth). Clause 457.223(4) of Sch 2 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” was defined in reg 1.03 of the Migration Regulations as “an approved sponsor”, a term that was in turn defined in s 5 of the Migration Act to mean, in summary, a person who had been approved by the Minister under s 140E of the Migration Act.

18    Also on 21 May 2012, the Business Sponsor Application and the Nomination were made.

19    In relation to the Business Sponsor Application and the Nomination, the following matters are noted:

(a)    In each case, the form was signed by Jane Hickey in her capacity as the Administrator of the business. In the spaces provided in each form for an office hours telephone number and an email address, the details provided were: “0406-743-272” and “HICKEYJANE@HOTMAIL.COM”. Both the Business Sponsor Application and the Nomination stated that the legal name of the business was “Colby Nelson Hickey” and that the business traded under the name “Colby and Company”. In both forms, in the space provided for the “Contact officer for enquiries”, the name “Jane Hickey” was inserted. In the space for office hours telephone (in relation to the contact officer for enquiries), the same mobile telephone number as referred to above was inserted.

(b)    In the Business Sponsor Application, in relation to the industry sector in which the business was operating, the box for “Education and Training” was ticked. The attachments to the Business Sponsor Application included a letter from Swinburne University of Technology that stated that Colby and Company was supplying education access workers to support a student with his studies.

(c)    In the Nomination, the position to be filled was stated to be “Education Manager” and Dr Eisele was nominated as the person to fill the position. Accompanying the Nomination was a letter dated 20 May 2012 on the letterhead of Colby and Company offering Dr Eisele employment as Education Manager. The letter was signed by Ms Hickey as Administrator.

20    It is convenient to note at this point that Div 3A of Pt 2 of the Migration Act dealt with sponsorship. Section 140E dealt with the approval of sponsors (see also ss 140F, 140G and 140GA). Section 140GB(1) provided, in summary, for an approved sponsor to nominate an applicant, or a proposed applicant, for a visa of a prescribed kind in relation to a proposed occupation, program or activity. Section 140GB(2) provided that the Minister must approve such a nomination if the prescribed criteria were satisfied. See generally Ahmad v Minister for Immigration and Border Protection (2015) 237 FCR 365 at [27]-[56] and Dyankov v Minister for Immigration and Border Protection [2017] FCAFC 81 at [13]-[22].

21    On 31 May 2012, Mr Hunter sent two emails to Ms Hickey. One email related to the Business Sponsor Application, the other to the Nomination. In each case, the email stated that Mr Hunter had begun considering the relevant application and that further information was required. Each email then set out, in some detail, the matters in respect of which further information was required. Each email contained a statement regarding withdrawal of the application, to the effect that the application could be withdrawn at any stage. It was stated that the application could be withdrawn by writing to Mr Hunter using the contact details provided in the email under the heading “Contacting the Melbourne office”. In this section, the following email address was provided: e457.melbourne@immi.gov.au.

22    On the evening of 26 June 2012, two emails were sent, purportedly by Ms Hickey, to Mr Hunter. The first email, sent at 10.09 pm, requested the withdrawal of the Nomination. The second email, sent at 11.17 pm, requested the withdrawal of the Business Sponsor Application. Each email was sent from the email address hickeyjane@hotmail.com, being the email address that had been provided in the Business Sponsor Application and the Nomination. Each email was sent to Mr Hunter’s email address and to the email address that had been specified for withdrawal (namely, e457.melbourne@immi.gov.au).

23    The email relating to the Nomination was in the following terms:

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 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

24    The email relating to the Business Sponsor Application was as follows:

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 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

25    Later on the evening of 26 June 2012, two emails were sent, purportedly by Mr Hickey, to Mr Hunter. In each case, the email was sent from the email address colbyhickey2012@ live.com.au. The first email, sent at 11.23 pm, sought more time to provide further information in relation to the Nomination (AB 398-399). The second email, sent at 11.45 pm, sought additional time to produce the requested information in relation to the Business Sponsor Application. The emails were in the same terms, save for the identification numbers for the Nomination and the Business Sponsor Application. Each email stated as follows:

Dear Mr. Hunter,

I am the owner of Colby and Company. I would like additional time to produce the information you requested. My mum Jane Hickey has been handling my case but she is ill and unable to continue. I have started the business and require the assistance of Dr. Eisele to develop it.

Please see the attached statement regarding my disability and direct all future correspondence to me at this email address.

Yours sincerely,

Colby Hickey

26    Attached to each email was a letter from Dr Rosemary Crossley on the letterhead of the Anne McDonald Centre addressed “To Whom It May Concern”. The letter stated, among other things, that: Mr Hickey has Autism Spectrum Disorder and Down Syndrome; he does not speak and requires the use of communication aids with trained partners on an ongoing basis; and this includes managing his day-to-day personal affairs, completing his university coursework and developing and operating his business. The letter referred to Dr Eisele and stated that she had been providing services to Mr Hickey since January 2012 and had become the primary communication specialist for him.

27    The following day, being 27 June 2012, Mr Hunter received a telephone call from a person who identified herself as Ms Hickey. Among other things, the caller told Mr Hunter that: she had agreed to help Dr Eisele gain a visa, but did not realise the extent of the requirements that needed to be satisfied for the Business Sponsor Application and the Nomination to be approved; and as a result, she no longer wished to proceed with the applications. Mr Hunter believed the caller to be Ms Hickey because she identified herself as such. Mr Hunter also gave evidence, which the primary judge accepted, that he would have verified the phone number ID which appeared before him, this being a matter of general practice in dealing with applications for a Subclass 457 visa.

28    Mr Hunter made a record of the telephone conversation on the Department’s record management system, 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 wishes 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 his evidence at trial, Mr Hunter said that “he could have worded this last paragraph better”. He stated, and the primary judge accepted, that the belief referred to in the last paragraph was a contention of Ms Hickey.

29    Mr Hunter was not surprised by Ms 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 Hickey on 31 May 2012. In his experience, businesses frequently agreed to employ applicants for Subclass 457 visas without realising the extent of the obligations imposed on business sponsors under the Migration Act and the Migration Regulations.

30    Mr Hunter was suspicious of the credibility of the emails dated 26 June 2012 from colbyhickey2012@live.com.au. These emails stated that Ms Hickey was ill. At the time, Mr Hunter had already received two emails, purportedly from Ms Hickey, dated 26 June 2012, withdrawing the Business Sponsor Application and the Nomination, and he subsequently received a telephone call to confirm the withdrawals. Mr Hunter was also in receipt of Dr Crossley’s letter. Mr Hunter’s evidence at trial was that he considered it entirely plausible, as alleged in the telephone conversation, that Dr Eisele had in fact written the emails to take control of the Business Sponsor Application and the Nomination. The primary judge found that Mr Hunter’s suspicion was reasonable and understandable (Reasons, [25]). Her Honour also found that Mr Hunter did not take this into account in determining Dr Eisele’s visa application (Reasons, [25]).

31    On 27 June 2012, at 1.28 pm, Mr Hunter sent an email to Ms Hickey attaching a letter that confirmed the withdrawal of the Business Sponsor Application. The email was sent to the email address hickeyjane@hotmail.com, being the email address provided in the Business Sponsor Application. The letter stated:

Dear Colby Nelson Hickey

I refer to the business sponsorship application lodged by the above named business with this office on 21/05/2012.

This is to confirm, as per your written request of 26/06/2012 requesting withdrawal, I have now withdrawn the business sponsorship application as at 27/06/2012.

If you have any queries about any of the matters raised above, please contact me at my contact details below.

Yours sincerely

Daniel Hunter

Mr Hunter referred to “Colby Nelson Hickey”, rather than Ms Hickey, because “Colby Nelson Hickey” was the legal name of the business.

32    Mr Hunter’s evidence, which the primary judge accepted, was that the Department’s policy, including for privacy reasons, was to deal with the person who made a visa or sponsorship application unless that person had authorised someone else to become a contact or act on their behalf. Ms Hickey was the contact for the sponsorship application, and had signed both of the relevant forms. Accordingly, Mr Hunter did not respond to the email from colbyhickey2012@live.com.au. 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 emails he received from colbyhickey2012@live.com.au on the evening of 26 June 2012. She had confirmed the Departmental policy and requirement that the Department deal or correspond, in relation to the application, exclusively with the applicant or an authorised recipient.

33    On 27 June 2012, at 5.10 pm, Mr Hunter sent an email to Dr Eisele attaching a letter regarding her application for a Subclass 457 visa. The letter stated:

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 21/05/2012.

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 …

34    On 9 July 2012, an email was sent, purportedly by Ms Hickey, to Mr Hunter. The email stated that, since the withdrawal of the sponsorship application, Dr Eisele’s employment had been terminated by the business, and alleged that she had entered into an “inappropriate relationship” with Mr Hickey.

35    Mr Hunter’s evidence at trial (which the primary judge appears to have accepted) was that Ms Hickey had advised him that she had been advised by Mr Hickey that he and Dr Eisele were in love and intended to marry. Mr Hunter’s evidence, supported by the Department’s records annexed to his affidavit, indicated that the email of 9 July 2012 was the first time that Ms Hickey had said anything to Mr Hunter or the Department about a relationship existing between Dr Eisele and Mr Hickey that was not business in nature.

36    Mr Hunter did not immediately reply to Ms 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.

37    On 16 July 2012, Mr Hunter received an email from Ms Hickey following up on her email of 9 July 2012. On that same day, Mr Hunter sent an email to Ms Hickey advising her, among other things, that “[t]he 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 http://www.immi.gov.au/migration-fraud/help-fight-against-migration-fraud.htm

While I am sympathetic to your situation, at this point there is no action that can be taken by the Department.

38    Mr Hickey did not lodge any further sponsorship applications, and nor did anyone on his behalf. The claims made by Ms Hickey were stored with the withdrawn Business Sponsor Application and Nomination, and not with Dr Eisele’s application for a visa.

39    On 25 July 2012, Mr Hunter received an email from Dr Eisele’s migration agent seeking an extension of time so that Dr Eisele could “put [in] a new nomination and sponsorship form”. It said relevantly:

Dear Daniel,

…

Further to our conversation please find a 956 form signed by my client.

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

40    Mr Hunter replied to the 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.

41    On 15 August 2012, having received no further correspondence from Dr Eisele or her migration agent, Mr Hunter (as delegate of the Minister) determined to reject Dr Eisele’s application for a Subclass 457 visa. The basis for the decision was that Dr Eisele did not satisfy cl 457.223(4) of Sch 2 to the Migration Regulations, which required a standard business sponsor to have nominated an occupation in relation to the applicant, and the nomination to have been approved by the Minister. Mr Hunter’s decision record was sent to Dr Eisele on 15 August 2012. The decision record included the following:

On 27/06/2012, 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.

42    On 31 August 2012, Dr Eisele applied to the Migration Review Tribunal (the Tribunal) (as it then was) 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.

43    On 11 June 2013, Dr Eisele commenced an application for judicial review of the Tribunal’s decision in the Federal Circuit Court. Dr Eisele challenged the decision of the Tribunal on the ground that she was denied procedural fairness. In that proceeding, Dr Eisele also contended that Mr Hunter’s administrative decisions were decisions to discriminate in breach of the Disability Discrimination Act and the Sex Discrimination Act, among other complaints, and Dr Eisele requested the Court to consider the discrimination issues under s 18 of the Federal Circuit Court of Australia Act 1999 (Cth), which deals with the Court’s jurisdiction in associated matters.

44    The Federal Circuit Court determined that no jurisdictional error attended the decision of the Tribunal: Eisele v Minister for Immigration & Anor [2014] FCCA 677. In respect of Dr Eisele’s arguments as to discrimination, Judge Whelan determined that there was no evidence before the Court to establish that Mr Hunter’s decisions involved such discrimination, and that the proceeding was not the appropriate proceeding in which to deal with such allegations. 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-making 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.

45    On 11 June 2014, Dr Eisele complained to the Australian Human Rights Commission that she had suffered discrimination by the respondents under the Disability Discrimination Act and the Sex Discrimination Act. On 9 December 2014, her complaint was terminated as “misconceived” by the Commission under s 46PH(1)(c) of the Australian Human Rights Commission Act 1986 (Cth).

The proceeding in the Federal Circuit Court

46    On 5 February 2015, Dr Eisele commenced the proceeding in the Federal Circuit Court that is the subject of this appeal. On 2 March 2016, Dr Eisele filed a further amended application, upon which she relied at the hearing below.

47    In the section of the further amended application dealing with the discrimination of which Dr Eisele complained, there were nine paragraphs. These referred principally to alleged breaches of the Sex Discrimination Act and the Disability Discrimination Act, but also alleged that Mr Hunter’s behaviour had breached certain sections of the Migration Act and the Privacy Act 1988 (Cth). The further amended application also relied on s 75(v) of the Constitution. Paragraph 2 of the further amended application, which set out the alleged breaches of the Disability Discrimination Act, was as follows:

2.    Disability Discrimination: DIBP Case Officer Daniel Hunter discriminated against Dr Eisele by failing to acknowledge Colby Nelson Hickey, who has a disability, and had requested that Mr Hunter contact him regarding his business, ‘Colby and Company’ and the sponsorship of his Education Manager, Dr Patricia Eisele. Mr Hickey relied on Dr Eisele as his assistant, carer, associate and communication facilitator for access to DIBP services. Further, Dr Eisele relied on the reasonable adjustments Mr Hickey requested from Mr Hunter based on his disability in order to have access to DIBP services for her 457 visa application. After Mr Hunter ignored legitimate emails from Mr Hickey based on his belief that Mr Hickey could not write his own emails, he acted instead on the emails of a person purporting to be Jane Hickey without any due diligence – as required to protect Dr Eisele from exploitation. Jane Hickey was in the process of attempting to have Dr Eisele unlawfully deported after learning that Dr Eisele was assisting the business owner, Colby Nelson Hickey, to report theft and fraud from his Commonwealth disability funding accounts. Mr Hunter’s discriminatory actions prevented Mr Hickey from further contact with DIBP, and prevented Dr Eisele from further access to DIBP services regarding her 457 visa sponsorship. Dr Eisele was being exploited by sponsor Jane Hickey because Dr Eisele had substantial written information to support Mr Hickey’s fraud allegations. After Mr Hunter discriminated against Dr Eisele (who is protected against discrimination as Mr Hickey’s associate and assistant), neither Mr Hickey nor Dr Eisele were able to continue to access DIBP services for the 457 visa sponsorship. Mr Hickey was no longer permitted to employ Dr Eisele as his assistant or associate. Dr Eisele’s position and income were terminated on 8 July 2012.

48    The orders sought by Dr Eisele, as set out in the further amended application, were 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. $3,000) 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 to 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 the 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 others 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.

The hearing before the primary judge

49    The trial of the Federal Circuit Court proceeding took place on 23 and 24 March 2016. Dr Eisele represented herself.

50    At the outset of the hearing, an appearance was announced by counsel for Ms Hickey and Mr Hickey, who had been subpoenaed to give evidence. Counsel for Ms Hickey and Mr Hickey submitted that they should be excused. After hearing submissions, the primary judge ruled that they were not required to give evidence and that the subpoenas were to be set aside. The evidence on appeal includes the relevant part of the transcript. The following matters are noted:

(a)    Counsel for Ms Hickey and Mr Hickey initially said that he wanted to raise “a couple of housekeeping matters in relation to the subpoenas” (p 2). Shortly thereafter, he indicated that his primary submission was that Ms Hickey and Mr Hickey should be excused, referring to logistical problems with Mr Hickey giving evidence (p 3).

(b)    The primary judge then asked Dr Eisele to address the relevance of the evidence of the proposed witnesses (p 3).

(c)    Dr Eisele indicated that she had “no information at all that this was going to happen” (p 3). Nevertheless, she addressed the primary judge’s question. In relation to Mr Hickey, Dr Eisele said that the evidence concerned the authorship of the two emails purportedly sent by Mr Hickey to Mr Hunter on 26 June 2012. She said that the respondents had suggested that she (Dr Eisele) had authored the emails. She would seek to establish through Mr Hickey’s evidence that he had in fact authored them (pp 3, 18).

(d)    In relation to Ms Hickey, Dr Eisele said that Ms Hickey had given evidence in a proceeding in the Magistrates’ Court of Victoria to the effect that she had not sent the two emails purportedly sent by her to Mr Hunter on 26 June 2012, and that she had not made the telephone call to Mr Hunter on 27 June 2012 (pp 5, 19-24). Dr Eisele also said that she wanted to ask Ms Hickey whether she sent the email of 9 July 2012 (pp 25-26).

(e)    Counsel for the respondents submitted that the evidence proposed to be adduced was not relevant (pp 10, 30).

(f)    Counsel for Ms Hickey and Mr Hickey submitted that “there’s nothing that either Jane Hickey or Colby Hickey can say that’s of relevance to the Departmental officer’s determination, and whether that determination is affected by – is tainted in any way by disability discrimination” (p 17). Counsel also submitted that any documents in Ms Hickey’s possession were not relevant (p 28).

(g)    The primary judge ruled that Mr Hickey was not required to give evidence and that the subpoena addressed to him be set aside (p 19). Her Honour also ruled that Ms Hickey was not required to give evidence and that the subpoena addressed to her be set aside (p 31). The primary judge did not, at this stage, provide reasons for the rulings. However, the matter was dealt with subsequently in the Reasons, as set out below.

(h)    In response to a statement by Dr Eisele that she “would like to go on record” that she “would like to put that as an appeal issue”, the primary judge told Dr Eisele that she was entitled to appeal from the decision (p 31).

51    The trial then proceeded.

The Reasons

52    On 13 May 2016, the primary judge handed down the Reasons.

53    After outlining the orders sought by Dr Eisele and the evidence relied on by the parties, the primary judge set out her reasons for setting aside the subpoenas addressed to Ms Hickey and Mr Hickey at [9] of the Reasons:

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.

54    The primary judge set out the background to the application at [10]-[46] of the Reasons. This part of the Reasons has been largely reproduced above.

55    At [47]-[54] of the Reasons, the primary judge set out the relevant provisions of the Sex Discrimination Act and the Disability Discrimination Act.

56    The primary judge’s core reasoning in relation to Dr Eisele’s claims was set out at [55]-[74] of the Reasons. In this section of the Reasons, the primary judge identified four acts in respect of which Dr Eisele complained: see [55] of the Reasons. I note that this way of identifying the acts complained of had been suggested by the respondents in closing submissions. It is convenient to set out the full text of [55]-[74] of the Reasons:

Consideration

55.    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 colbyhickey2012@live.com.au and provide more time to Mr Hickey to provide information; and

d)    Mr Hunter’s refusal of the application for a visa.

56.    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 [Waters v Public Transport Corporation (1991) 173 CLR 349 at 359 (per Mason CJ and Gaudron J)]. 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.

Sex Discrimination Act

57.    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.

58.    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.

59.    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.

60.    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

61.    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.

62.    The Applicant’s argument that Mr Hunter discriminated against her by failing to follow Mr Hickey’s instruction in the email from colbyhickey2012@live.com.au, 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.

63.    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 [Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92 at [13] (per Gleeson CJ)].

64.    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.

65.    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 27th – they said they got the call from you on the 26th – 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.”

66.    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 8th of July.”

67.    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.

68.    Mr Hunter gave evidence, when asked by the Applicant, as to why he did not respond to the email from colbyhickey2012@live.com.au 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.

69.    Mr Hunter’s suspicion as to the author of the email from colbyhickey2012@live.com.au 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.

70.    Mr Hunter said on reflection, when asked by the Applicant, that he could have done more by responding to the colbyhickey2012@live.com.au 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.

71.    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.

72.    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 colbyhickey2012@live.com.au dated 26 June 2012 that suggested Mr Hickey required more time “by reason of his disability”.

73.    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.

74.    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.

57    For these reasons, the primary judge dismissed the claims based on the Sex Discrimination Act and the Disability Discrimination Act. In relation to the Migration Act and Privacy Act claims, the primary judge accepted the respondents’ argument that these claims were “non-justiciable in the context of this action” and, in any event, had not been properly pleaded: Reasons, [6]. Accordingly, the primary judge made an order that the application be dismissed.

58    The question of costs was dealt with later. On 23 December 2016, the primary judge ordered that Dr Eisele pay the costs of the respondents fixed in the sum of $32,957, and that there be a stay on such payment of 12 months: Eisele v Commonwealth of Australia & Anor (No 2) [2016] FCCA 3360.

The appeal

59    Dr Eisele appeals from “all of the orders of the Federal Circuit Court of Australia given on 13 May 2016 dismissing the Application”. Dr Eisele’s notice of appeal contains the following grounds:

1.    Witnesses: Judge Hartnett breached natural justice in excusing two of the three witnesses subpoenaed by the Appellant when they appeared on 23 March 2016, the first day of the final hearing. I was disadvantaged in presenting my case because the witnesses did not give evidence nor submit documents in support of my Application. I was not provided the subpoenaed documents for inspection but was informed about their relevance by witness Colby Hickey. Key evidence that supports my claim of discrimination could therefore not be considered by the Court. I was unable to obtain these documents through any other means.

1.1    Witness #1: Jane Hickey was subpoenaed to appear and give evidence and to produce documents. Ms Hickey was excused on 23 March 2016 based on an oral application by her two lawyers, who represented her on the day. Her Honour erred in excusing the witness (1) from testifying and (2) from producing the documents , which were also never submitted to the Registrar.

1.2    Witness #2: Colby Hickey has a disability. He is non-verbal and requires reasonable adjustments to communicate. Mr Hickey was a voluntary witness on my behalf and was only required to be subpoenaed because he did not have the free will to attend court due to his disability. He requires specialist communication equipment – a talking keyboard – and a communication assistant to participate in legal proceedings. Both were under the control of his financial Administrator, Jane Hickey (Witness #1).

Her Honour reviewed evidence in Court that Colby Hickey communicated effectively in a Federal Court mediation in 2012 using this methodology. However, Mr Hickey appeared on 23 March 2016 without any means to communicate to the Court. Mr Hickey sat in the courtroom ‘mute’ and repeatedly gave a visual and audible sign (i.e. a sharp tap on his chair) indicating that he wanted to speak. Her Honour did not ask the right questions in making her decision.

(1.2.1)    Her Honour excused my witness, Colby Hickey, based in part on his inability to communicate orally on the day.

(1.2.2)    Her Honour erred in not ascertaining why Mr Hickey was brought to court on 23 March 2016 by witness Jane Hickey (his adoptive mother and financial Administrator) without the means to communicate, as was his usual practice.

(1.2.3)    Her Honour erred in not adequately considering the conflict of interest inherent in Jane Hickey (Witness #1) controlling the testimony of Colby Hickey (Witness #2) by neglecting to arrange his communication equipment.

(1.2.4)    Her Honour erred in not asking Mr Hickey if he wanted to speak to the Court and ascertain whether Jane Hickey’s lawyers represented him, as they stated. Mr Hickey is able to sign ‘yes’ and ‘no.’ Her Honour made a finding of fact – that Colby Hickey was also represented by Jane Hickey’s lawyers – on an important issue which was not supported by the evidence. Colby Hickey had no means to provide instructions or communicate with the lawyers or the Court on the day.

(1.2.5)    Her Honour erred in excusing Colby Hickey based on his disability without first consulting with him about his disability needs. I had previously notified her Honour and the Respondents that this reasonable adjustment was required and that as an adult without a Guardian, Mr Hickey needed to be personally and directly consulted about his needs.

2.    This case is a Human Rights Application brought primarily under the Disability Discrimination Act 1992 and the Sex Discrimination Act 1984, with considerations under the Privacy Act 1988 and Migration Act 1958. Her Honour relied heavily and incorrectly on material regarding Department of Immigration and Border Protection processes (in compliance with Migration Act requirements) and whether those processes were discriminatory. Her Honour ignored relevant evidence that Respondent Daniel Hunter’s behaviour was discriminatory and prevented the Applicant from critical access to lawful services from the Department of Immigration and Border Protection. Her Honour asked the wrong question.

3.    Her Honour made an error of law in her application of Sections 7 and 8 of the Disability Discrimination Act 1992, which provide protection to carers of persons with disabilities and non-disabled persons who have associates with disabilities. Her Honour made a finding in the Decision that discrimination against Mr Hickey (the person with the disability) did not take place – as a reason to support the finding that discrimination against the Applicant did not take place. It is not a prerequisite or component of discrimination under Sections 7 and 8 of the Disability Discrimination Act 1992 that the person with the disability is also discriminated against.

4.    Her Honour ignored relevant evidence of discrimination based on the Second Respondent’s failure to comply with sections of the Disability Discrimination Act 1992, the Sex Discrimination Act 1984, the Privacy Act 1988, the Migration Act 1958, and the Commonwealth of Australia Constitution Act while executing his duties as a Commonwealth employee.

The subpoena issue

60    Ground 1 of the notice of appeal challenges the primary judge’s decisions to set aside the subpoenas addressed to Ms Hickey and Mr Hickey.

61    The first issue to be addressed is whether, as submitted by the respondents, leave to appeal is required. In Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478, Gaudron, McHugh and Hayne JJ said at [4]-[7]:

4    In the course of a trial, and even before the trial commences, interlocutory orders may be made which affect the substantive rights of the parties. Rulings that are made in the course of trial about what evidence will be admitted are an obvious example. To adopt a rule that precluded challenging any interlocutory order except by an appeal against that order would provoke unnecessary multiplication and fragmentation of proceedings.

5    It is not surprising, then, that in at least some circumstances, a party may challenge the correctness of the final judgment entered in a matter on the ground that some interlocutory decision was wrong. Again, evidentiary rulings provide the obvious example. As was said, in a very early judgment of this Court:

“There is only one judgment of the Court appealed from … and on the appeal all grounds that were taken by the appellant in the course of the proceedings are open to him.”

As Griffith CJ had said earlier, in the course of argument in Nolan v Clifford:

“On an appeal from a final judgment, all points raised in the course of the case are open to the unsuccessful party. If a point is decided against him on an interlocutory application, there is no need for him to keep on raising it.”

In both Nolan v Clifford and Crowley v Glissan reference was made to Maharajah Moheshur Sing v Bengal Government as authority for the proposition stated.

6    The proposition that any interlocutory order can be challenged in an appeal against the final judgment in the matter is often stated in unqualified terms. The better view, however, is reflected in the formulation adopted in Spencer Bower, Turner and Handley where it is said that “on an appeal from the final order an appellate court can correct any interlocutory order which affected the final result” (emphasis added).

7    It is necessary to make the qualification, “which affected the final result”, at least to reflect the well-established principle that a new trial is not ordered where an error of law, fact, misdirection or other wrong has not resulted in any miscarriage of justice. That principle, well established in the common law, is applied to appeals to the Court of Appeal of New South Wales by Pt 51AA, r 16(1) of the Supreme Court Rules 1970 (NSW). …

(Footnotes omitted.)

62    The above passage was cited with approval by Gummow A-CJ, Hayne, Crennan and Bell JJ in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [78]. See also Shannon v Commonwealth Bank of Australia (2014) 318 ALR 420 at [17]-[19] per Logan J, referring to s 24(1E) of the Federal Court of Australia Act 1976 (Cth).

63    Applying the principles set out above, I consider that, although the decisions to set aside the subpoenas were interlocutory, leave to appeal the decisions is not required. The primary judge’s decisions in relation to the subpoenas were akin to “evidentiary rulings”, as referred to by Gaudron, McHugh and Hayne JJ in Gerlach at [5]. The decisions were made during the course of the trial. It would be productive of unnecessary fragmentation if leave to appeal were required in relation to such decisions in these circumstances. Further, Dr Eisele’s notice of appeal is framed as an appeal against the final order of the Federal Circuit Court dismissing her proceeding, rather than as an appeal against the interlocutory decisions to set aside the subpoenas. The challenge to the correctness of the subpoena decisions is merely a ground of appeal. As such, the situation is not like that discussed by Jessup, Griffiths and White JJ in Jackson v Health Services Union [2015] FCAFC 188 at [54].

64    The next issue is whether the primary judge erred in ruling that the subpoenas were to be set aside. The test for the issuing of a subpoena is whether the subpoena has a legitimate forensic purpose: Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90 at 102-103 per Beaumont J; Gloucester Shire Council v Fitch Ratings, Inc [2016] FCA 587 at [21]-[22] per Wigney J. This has been interpreted as meaning that the evidence sought by the subpoena must have some apparent or adjectival relevance or would be reasonably likely to add to the relevant evidence in the case: Dorajay Pty Limited v Aristocrat Leisure Limited [2005] FCA 588 at [17] per Stone J; Gloucester Shire Council at [22].

65    In the present case, the primary judge set aside the subpoenas essentially on the basis that the evidence proposed to be adduced was irrelevant to whether the respondents had discriminated against Dr Eisele. In my view, no error has been shown in the primary judge’s conclusion. The evidence that Dr Eisele wished to adduce from Ms Hickey and Mr Hickey principally related to the authorship of the emails sent to Mr Hunter during the evening of 26 June 2012 and the identity of the person who telephoned Mr Hunter on 27 June 2012. However, the true authorship of the emails and the true identity of the caller were irrelevant to the issues to be determined in the proceeding, which essentially concerned whether Mr Hunter had breached the relevant provisions of the Disability Discrimination Act. This required an assessment of Mr Hunter’s treatment of Dr Eisele in the circumstances as known or communicated to him. One of the main questions (as indicated in Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92 (Purvis) at [236] per Gummow, Hayne and Heydon JJ) was – why was the aggrieved person (Dr Eisele) treated as she was? This question was to be addressed based on the circumstances as they presented themselves to Mr Hunter (including his belief as to who sent the emails and who had called him). The truth of who sent the emails and who made the call, as determined by a court some years later, was not relevant. Further, the evidence proposed to be adduced from the subpoenaed witnesses would not have assisted the Court below in determining whether Mr Hunter treated Dr Eisele less favourably than another person who did not have an associate with a disability. It would not have assisted in considering whether Mr Hunter had made reasonable adjustments for Dr Eisele or Mr Hickey. The true identity of the authors of the emails and the caller did not bear on whether Mr Hunter’s actions were discriminatory or not.

66    Likewise, the identity of the author of the email dated 9 July 2012 was irrelevant to the issues to be determined in the proceeding.

67    Insofar as the subpoena addressed to Ms Hickey sought the production of documents, this aspect received little attention in the submissions made to the primary judge. For the reasons indicated in [65] above, the documents held by Ms Hickey would not appear to have been relevant unless they had been provided to Mr Hunter or were a record of communications with him. While it is possible that Ms Hickey may have been able to produce some additional relevant documents (as the categories in the subpoena included documents submitted by Ms Hickey to the Department and records and notes of telephone calls she made to the Department), it is not established that any error in relation to this aspect affected the final result, as required in the passage from Gerlach set out above. Accordingly, any error in this regard does not provide a basis to set aside the final order of the Court below.

68    I note for completeness that, in her outline of submissions for the appeal, Dr Eisele relies on statements made by the primary judge during a hearing on 12 October 2015 (which dealt with an application by Dr Eisele for discovery) to the effect that Dr Eisele could subpoena Mr Hickey and Ms Hickey to give evidence. However, those statements were made on an earlier occasion, at which time the issue of the relevance of any evidence they could give was not raised or contested. The statements made by the primary judge during the course of the earlier hearing do not bear upon the correctness of her Honour’s decisions at trial to set aside the subpoenas.

69    Further, in Dr Eisele’s outline of submissions, she challenges the statement in [9] of the Reasons that any evidence Mr Hickey could give “would be difficult procedurally and costly”, and that the use of facilitated communication (as required by Mr Hickey) raised issues as to the weight that could be given to such evidence. In view of the conclusion I have reached as to relevance, it is unnecessary to consider whether this provided a proper basis for the decision to set aside the subpoena.

70    It follows that ground 1 is not made out.

Grounds 2, 3 and 4

71    It will be convenient to deal together with grounds 2, 3 and 4 of the notice of appeal, which relate to Dr Eisele’s claims based on the Sex Discrimination Act, the Disability Discrimination Act, the Migration Act and the Privacy Act. Consistently with the approach taken in Dr Eisele’s submissions, I will focus on her submissions in relation to the Disability Discrimination Act. I will then deal with the other legislation.

Disability Discrimination Act - applicable principles

72    Before addressing Dr Eisele’s appeal submissions in relation to the Disability Discrimination Act, I will set out the key relevant provisions and the applicable principles. I will refer to the legislation as in force at the relevant time for present purposes, namely June to August 2012.

73    Section 5 of the Disability Discrimination Act, dealing with direct discrimination, provides as follows.

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.

74    “Disability” is defined in s 4(1) of the Act, but it is not necessary to set out the definition for present purposes.

75    The expression “reasonable adjustment”, which is used in s 5(2), is defined in s 4(1) of the Act as follows:

reasonable adjustment: an adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person.

76    The meaning of the expression “unjustifiable hardship” is affected by s 11 of the Act, which is unnecessary to set out.

77    Section 6 of the Act, dealing with indirect discrimination, is in the following terms:

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.

78    Section 7 of the Act deals with discrimination in relation to associates and is in the following terms:

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.

79    The word “associate” is defined in s 4(1) as follows:

associate, in relation to a person, includes:

(a)    a spouse of the person; and

(b)    another person who is living with the person on a genuine domestic basis; and

(c)    a relative of the person; and

(d)    a carer of the person; and

(e)    another person who is in a business, sporting or recreational relationship with the person.

80    Section 8 of the Act provides as follows:

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 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.

81    The expression “carer or assistant” has the meaning given by s 9(1), but it is not necessary to set this out.

82    The Disability Discrimination Act applies in a number of different contexts, including the provision of goods, services and facilities (s 24) and the administration of Commonwealth laws and programs (s 29). Section 29 is in the following terms:

Administration of Commonwealth laws and programs

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 disability in the performance of that function, the exercise of that power or the fulfilment of that responsibility.

83    Both s 24 and s 29 are located in Div 2 of Pt 2 of the Act. Section 52 provides a limitation on, or exception to, the operation of Divs 1, 2 and 2A of Pt 2 as follows:

Migration

Divisions 1, 2 and 2A do not:

(a)    affect discriminatory provisions in:

(i)    the Migration Act 1958; or

(ii)    a legislative instrument made under that Act; or

(b)    render unlawful anything that is permitted or required to be done by that Act or instrument.

84    Section 5(1) of the Disability Discrimination Act requires a causal link between the disability and the discriminator’s conduct. This is made clear by the phrase “because of the disability, the discriminator treats …”. In Purvis, in relation to an earlier version of s 5(1) expressed in similar terms to the provision as set out above, Gummow, Hayne and Heydon JJ said at [236]:

For present purposes, it is enough to say that we doubt that distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed “because of” disability. Rather, the central question will always be — why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it “because of”, “by reason of”, that person’s disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression “because of”.

85    In the same case, Gummow, Hayne and Heydon JJ said the following (at [213]) in relation to the nature of the inquiry required by s 5(1):

Section 5(1) of the Act requires comparison between the treatment which the discriminator gives, or proposes to give, to the aggrieved person and the treatment that the discriminator would give, or would propose to give, to a person without the aggrieved person’s disability “in circumstances that are the same or are not materially different”. If that comparison reveals that the disabled person was treated less favourably, the further question which must be asked is whether that was because of the disabled person’s disability. Section 5(1), therefore, requires equality of treatment between the disabled and those who are not. Attention is invited to how the discriminator “treats or would treat a person without the disability” (emphasis added). The “comparator” identified by s 5(1) is “a person without the disability”.

86    Section 5(2) of the Disability Discrimination Act effectively imposes a positive obligation to make “reasonable adjustments” in certain circumstances. This provision was introduced by the Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth). The background to, and reasons for, the introduction of s 5(2) were described by Mortimer J in Watts v Australian Postal Corporation (2014) 222 FCR 220 at [15]-[20] and by Bromberg J in Sklavos v Australasian College of Dermatologists (2017) 347 ALR 78 at [34]-[35]. See also Rees N, Rice S and Allen D, Australian Anti-Discrimination Law (2nd ed, The Federation Press, 2014) at [6.3.6.15]-[6.3.6.17].

87    In Mulligan v Virgin Australia Airlines Pty Ltd (2015) 234 FCR 207, the Full Court of this Court (Flick, Reeves and Griffiths JJ), at [146], noted that the term “adjustment” is not defined in the Disability Discrimination Act and stated that, as Mortimer J had concluded in Watts at [22], the term is therefore to be given its ordinary meaning, which is “an alteration or modification”.

Disability Discrimination Act – consideration of appeal grounds

88    It is convenient to outline, in brief terms, how Dr Eisele puts her case based on the provisions of the Disability Discrimination Act. Dr Eisele contends that: the respondents were providing services within the meaning of s 24 of the Act; or they were performing a function or exercising a power under a Commonwealth law, or had responsibility for the administration of a Commonwealth law, within the meaning of s 29 of the Act. Dr Eisele contends that she was a person who had an associate with a disability (namely, Mr Hickey) and relies upon the operation of the Act provided for in s 7. Section 7(1) provides that the 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. Dr Eisele contends that she is the “person” referred to in this provision and that, at the relevant time, she had an “associate with a disability”, namely Mr Hickey. Section 7(2) provides some detail as to how the other provisions of the Act are to operate in relation to a person who has an associate with a disability. The conduct which forms the basis of Dr Eisele’s contention that there was discrimination against her in breach of the provisions of the Act relates to the withdrawal of the Business Sponsor Application and the Nomination. Dr Eisele contends that Mr Hunter: should not have accepted the withdrawal of the Business Sponsor Application and the Nomination; should have undertaken “due diligence” to ascertain whether the emails purportedly from Ms Hickey were in fact sent by her; should have acknowledged the emails from Mr Hickey; should have provided Mr Hickey with more time to provide the information that had previously been requested in connection with the Business Sponsor Application and the Nomination; and should have directed further correspondence to Mr Hickey as requested in his emails.

89    Dr Eisele also relies on s 8 of the Act, on the basis that Mr Hickey was a person who had a carer or assistant (who was Dr Eisele).

90    I make the following observations about Dr Eisele’s case as outlined above. First, there is no issue that Mr Hickey is a person with a “disability”, as defined in the Act. Secondly, it may be accepted for present purposes that Dr Eisele had an “associate” with a disability, namely Mr Hickey, on the basis that Mr Hickey was a person who was in a business relationship with Dr Eisele. Thirdly, it may be accepted for present purposes that Mr Hunter was performing functions or exercising powers under a Commonwealth law (namely, the Migration Act) and that the exclusion in s 52 was not applicable. Fourthly, the way in which the associate provision (s 7) interacts with s 5 is not free from doubt and may be expressed in different ways. However, it would appear to be intended that s 5(1) apply to persons who have associates with disabilities as if it were expressed as follows or to the following effect: “For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of his or her associate if, because of the fact that the aggrieved person has an associate with a disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without an associate with a disability in circumstances that are not materially different.” Section 5(2), dealing with reasonable adjustments, would also need to be applied to persons who have associates with disabilities in the manner described in s 7.

91    I will now address Dr Eisele’s appeal submissions relating to the Disability Discrimination Act.

92    Dr Eisele challenges the finding by the primary judge that it was, in fact, Ms Hickey who spoke with Mr Hunter in the telephone call on 27 June 2012 (see Reasons, [21], [67]). Dr Eisele also challenges the finding that the emails purportedly sent by Ms Hickey on 26 June 2012 were in fact sent by Ms Hickey (Reasons, [18], [28]). As discussed above, Dr Eisele contended that Ms Hickey had not sent the relevant emails or made the telephone call. At the trial before the primary judge, Dr Eisele had subpoenaed Ms Hickey to give evidence about these matters, but the subpoena was set aside on the basis that the proposed evidence was irrelevant. For the reasons given above, no error is shown in that decision. However, in such circumstances, it is doubtful whether it was appropriate for the primary judge to make a positive finding that the relevant emails had been sent by Ms Hickey and that she had made the telephone call. It would have been preferable, with respect, not to have made a finding about the matter, consistently with the reasoning in relation to the subpoena. In any event, the findings were not material to the decision reached by her Honour that discrimination had not been established. This is made clear by the discussion at [63] of the Reasons, where the primary judge stated that Dr Eisele’s contention that it was not Ms Hickey who contacted Mr Hunter by email or phone was “irrelevant”. The findings that Ms Hickey sent the relevant emails and made the telephone call were unnecessary for the primary judge’s decision and did not form part of her Honour’s essential reasoning. It follows that this contention does not provide a basis to set aside the primary judge’s conclusion.

93    Dr Eisele submits that the primary judge focused on the Department’s process for evaluating a Subclass 457 visa application under the Migration Act and the Migration Regulations and failed to consider the discrimination itself. Dr Eisele highlights [71]-[74] of the Reasons and submits that the primary judge appears to have had regard to the amended application (filed on 12 March 2015) rather than the further amended application that was before the Court at trial. This may have occurred, Dr Eisele submits, because counsel for the subpoenaed parties (Ms Hickey and Mr Hickey) erroneously referred to the amended application (a point which Dr Eisele drew to the primary judge’s attention). Dr Eisele also submits that the primary judge asked the wrong questions and put too much weight on irrelevant evidence at the expense of considering relevant evidence. For the reasons that follow, these submissions are rejected.

94    First, I do not accept the submission that the primary judge focused on the Department’s processes for dealing with visa applications and did not consider the discrimination itself. In my view, the “consideration” section of the Reasons, set out above, addresses the substance of the discrimination case put by Dr Eisele. The primary judge identified, at [55] of the Reasons, four acts in respect of which Dr Eisele complained. That summary, based on the respondents’ closing submissions, adequately identified the main factual elements of Dr Eisele’s case. The primary judge addressed these matters in the context of the provisions of the Disability Discrimination Act at [61]-[74] of the Reasons. In substance, the primary judge concluded that Dr Eisele had not established that she was treated less favourably because of the fact that she had an associate with a disability (see, in particular, [61], [63] and [74] of the Reasons). I note that in a number of paragraphs the primary judge addressed whether there had been discrimination against Dr Eisele in relation to the refusal of her visa application (in August 2012), and that Dr Eisele submits that the primary judge should instead have focused on the events of 26 and 27 June 2012, upon which her discrimination case centred. However, Dr Eisele’s case did extend to the decision to refuse her visa application in August 2012 (see, eg, trial transcript, 24 March 2016, p 25, line 27) and it was appropriate for the primary judge to deal with this.

95    Secondly, Dr Eisele’s submissions fail to grapple with an important distinction that flows from the structure of the Migration Act. Under the relevant provisions of the Act (described above), there was a clear distinction between, on the one hand, an application for approval as a sponsor under s 140E of the Act and a nomination of a person under s 140GB(1) of the Act and, on the other hand, an application by a person for a Subclass 457 visa. The application for approval as a sponsor and the nomination were to be made by the person carrying on the business, not by the visa applicant. It was for the person carrying on the business, not the visa applicant, to determine, for example, whether to provide further information in response to enquiries from the Department and whether to withdraw the application or the nomination. Given the structure of the Act, it is difficult to see how Dr Eisele, as the visa applicant, can establish a claim of discrimination on the basis of the way in which the Business Sponsor Application and the Nomination were dealt with (which is essentially what she seeks to do). In order to establish a breach of s 5 of the Disability Discrimination Act, applied in the manner described in s 7, Dr Eisele had to establish that she was treated less favourably because she had an associate with a disability (Mr Hickey), or that there was a failure to make reasonable adjustments for her (which may have required reasonable adjustments for her associate), such that she was treated less favourably than a person without an associate with a disability. But in circumstances where the Business Sponsor Application and the Nomination were not her documents, it is difficult to see how the way in which they were dealt with could constitute discrimination against Dr Eisele within the meaning of these provisions. Put shortly, it was for the business, not the visa applicant, to raise any complaint about the way in which these documents were dealt with. It is true that the withdrawal of the Business Sponsor Application and the Nomination had important consequences for Dr Eisele, as it meant that she was unlikely to be able to satisfy the visa criteria, but it remains the case that they were not her application and nomination. Although not expressed in these terms, this reasoning appears to underpin her Honour’s analysis. In any event, it provides a further reason to reject the challenge to the primary judge’s conclusion.

96    Thirdly, there is no indication that the primary judge had regard to the amended application rather than the further amended application in identifying and considering the issues to be determined. The primary judge referred specifically to the further amended application at [1] of the Reasons and, at [3] of the Reasons, quoted the relief sought in the further amended application. I do not consider that [71]-[74] of the Reasons provide a basis to infer that the primary judge had regard to the amended application rather than the further amended application. In reaching this conclusion, I have reviewed the amended application as well as the further amended application.

97    Fourthly, it follows from the above that I do not accept the submission that the primary judge asked the wrong questions or put too much weight on irrelevant evidence at the expense of considering relevant evidence.

98    Dr Eisele challenges a number of specific findings or conclusions made or reached by the primary judge. I will refer to each of these in turn:

(a)    Dr Eisele challenges a finding at [16] of the Reasons that 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”. Dr Eisele refers to some contrary evidence. However, I do not consider this this finding to have been material to the decision.

(b)    Dr Eisele challenges the finding at [21] of the Reasons to the effect that Ms Hickey made the telephone call to Mr Hunter on 27 June 2012. This has been dealt with above.

(c)    Dr Eisele refers to the following statement at [25] of the Reasons: “His [Mr Hunter’s] 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. … 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.” Dr Eisele submits that this statement again reflects that her Honour confused acts, omissions and practices of discrimination in June-July 2012 with the Migration Act provisions applied by Mr Hunter six weeks later on 15 August 2012. I do not accept this submission. As indicated above, Dr Eisele’s case did extend to the decision to refuse her visa application in August 2012. It was therefore appropriate to make a finding on this matter.

(d)    Dr Eisele refers to the following statement in [27] of the Reasons: “Mr Hunter did not respond to the email from colbyhickey2012@live.com.au. That email address was not listed anywhere in the sponsorship application forms and could have been created and used by anyone.” Dr Eisele submits that Mr Hickey’s name was listed as “sponsor” on all communications from the Department and that Mr Hickey’s emails included both the Client ID number and the Permission ID number required in correspondence with the Department. She further submits that: Mr Hickey speaks only a few words and could not have called Mr Hunter on the telephone; he could not visit the Department without assistance; and this was the only option available to him as a first communication with the Department regarding the Business Sponsor Application and the Nomination. There may be some force in these submissions if the case were one brought by Mr Hickey contending that reasonable adjustments should have been provided for him. However, as discussed in [95] above, in circumstances where the Business Sponsor Application was not Dr Eisele’s application, and the Nomination was not her nomination, it is difficult to see how the way in which they were dealt with could constitute discrimination against Dr Eisele.

(e)    Dr Eisele refers to [72] of the Reasons, where the primary judge said: “Further, there was no requirement for Mr Hunter to provide reasonable adjustments. There was nothing in the email from colbyhickey2012@ live.com.au dated 26 June 2012 that suggested Mr Hickey required more time ‘by reason of his disability’.” Dr Eisele submits that: the letter from Dr Crossley that accompanied Mr Hickey’s emails clearly indicated that Mr Hickey had multiple disabilities including a communication access disability; it was self-evident that he might require the reasonable accommodation of additional time and consideration by reason of his disability; and Mr Hunter presented no evidence that he responded to Mr Hickey’s emails at all to ask for clarification. Again, there may be some force in these submissions if the case were one brought by Mr Hickey contending that reasonable adjustments should have been provided for him. However, again, it is difficult to see how the way in which the Business Sponsor Application and the Nomination were dealt with by Mr Hunter could constitute discrimination against Dr Eisele.

99    Dr Eisele refers in her submissions to ss 7 and 8 of the Disability Discrimination Act and the examples set out under the text of those provisions (set out above). Dr Eisele submits that the primary judge erred in focusing on Mr Hickey as a “person of standing (which may also be true) whose unfavourable treatment had to be proven” in Dr Eisele’s case. (Although Dr Eisele’s outline of submissions refers to [62] of the Reasons, it may be that Dr Eisele intended to refer here to [72] of the Reasons.) Dr Eisele submits that she had standing under the Act and that, under the Act, Mr Hunter was required to provide adjustments for her, which included communication by email with Mr Hickey, a critical element she relied upon. I do not accept these submissions. It seems that the primary judge, out of an abundance of caution, made some findings as to whether reasonable adjustments were required to be provided for Mr Hickey. As indicated above, there may be some force in these submissions if the case were one brought by Mr Hickey contending that reasonable adjustments should have been provided for him. However, again, it is difficult to see how the way in which the Business Sponsor Application and the Nomination were dealt with by Mr Hunter could constitute discrimination against Dr Eisele.

100    For these reasons, I reject grounds 2, 3 and 4 of the notice of appeal insofar as they relate to the Disability Discrimination Act.

Other legislation

101    Dr Eisele’s further amended application before the Federal Circuit Court also relied on the Sex Discrimination Act, the Migration Act and the Privacy Act. Reference was also made to s 75(v) of the Constitution.

102    In her appeal submissions, Dr Eisele submits that: the primary judge erred in not considering evidence regarding these other pieces of legislation and the Constitution; the acts, omissions and practices engaged in by Mr Hunter on 26-27 July 2012, and on 9 and 16 July 2012, breached multiple Acts; the primary judge “gave too much weight to a single process condition – her conclusion there was no sponsor – in the visa refusal of 15 August 2012” at the expense of considering the underlying discrimination; the visa refusal was the “fruit of discrimination” that began in June 2012; her Honour placed too little weight on evidence of acts and omissions that created barriers that prevented Dr Eisele from progressing; and her Honour erred through under-reliance on evidence relating to these other Acts.

103    Further, Dr Eisele submits that the primary judge did not consider: evidence of Mr Hunter’s breach of the Privacy Act in discussing Mr Hickey’s emails with others; Mr Hunter’s failure to protect Dr Eisele from a sponsor (Ms Hickey) who tried to use the Department to effect her deportation; and provisions of the Migration Act that ensure protection for “customers” of the Department.

104    Insofar as Dr Eisele seeks to rely on the Sex Discrimination Act, her appeal submissions do not explain how it is contended that the primary judge erred in her conclusion that the Act did not apply. The primary judge, at [47]-[51] of the Reasons, set out the key relevant provisions of the Act. These included the definitions of “marital status” and “de facto spouse” in s 4 of the Act. The primary judge concluded, at [57]-[59], that the Act did not apply to the factual matters before the Court. The primary judge said that: on Dr Eisele’s own evidence, she was not in a de facto relationship with Mr Hickey and had never lived with him; and accordingly, she did not meet the definition of marital status (on the basis of any relationship with Mr Hickey) and could not be discriminated against on this basis. The primary judge also said that, at the time Mr Hunter gave effect to the withdrawal of the Business Sponsor Application and the Nomination, he knew nothing about any alleged inappropriate relationship. The only knowledge Mr Hunter had as to Dr Eisele’s marital status was that she was divorced, as that information was contained in her visa application. But there was no suggestion of discrimination on this basis. No error has been shown in the primary judge’s conclusions or reasoning in relation to the Sex Discrimination Act.

105    Insofar as Dr Eisele contends that Mr Hunter breached the Privacy Act by discussing Ms Hickey’s emails with others, Dr Eisele does not indicate which provisions she contends were breached. In any event, the appropriate process is for an individual to lodge a complaint with the Information Commissioner under Part V of that Act. Insofar as Dr Eisele contends that Mr Hunter breached provisions of the Migration Act, the sections of the Act relied on in the further amended application do not appear to have a bearing on the case. Some of these provisions simply go to jurisdiction or contain definitions. Some provisions are not obligations on the respondents but on visa applicants. And other provisions relate to the requirements of natural justice associated with visa applications and are outside the scope of this proceeding. There is no evidence that Mr Hunter breached s 334 of the Act in relation to false or misleading statements regarding the making of decisions under the Act. Section 140AA did not exist at the relevant time and s 87 is irrelevant to this proceeding. Further, insofar as Dr Eisele relies on alleged breaches of the Privacy Act and the Migration Act to support her case based on the Disability Discrimination Act, for the reasons indicated above there are difficulties with that case. It is difficult to see how any of the alleged breaches of the Privacy Act and the Migration Act, even if established, would overcome the difficulties with Dr Eisele’s case based on the Disability Discrimination Act.

106    Dr Eisele referred to s 75(v) of the Constitution in her further amended application before the Federal Circuit Court. Reference was also made to the Constitution in her notice of appeal. Assuming that the references to the Constitution in the notice of appeal are intended to refer to s 75(v), this provision does not provide any additional basis upon which to impugn the primary judge’s decision.

107    For these reasons, grounds 2, 3 and 4 of the notice of appeal, insofar as they rely on or refer to Acts other than the Disability Discrimination Act and the Constitution, are rejected.

Conclusion

108    For these reasons, the appeal is to be dismissed. In relation to costs, it would appear to be appropriate that costs follow the event. Accordingly, there will also be an order that Dr Eisele pay the costs of the respondents. However, if Dr Eisele wishes to contend for a different costs order, she may within seven days file a short written submission. In that event, the respondents may within a further seven days file a responding written submission, and I propose to deal with the issue on the papers.

Associate:

Dated:    24 January 2018