Minister for Immigration and Border Protection v Hallmark Computer Pty Ltd [2016] FCA 678

FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Border Protection v Hallmark Computer Pty Ltd [2016] FCA 678 File number: ACD 50 of 2015

Judge: BUCHANAN J

Date of judgment: 8 June 2016

Catchwords: MIGRATION – determination of appropriate penalties for respondents' contraventions of s 140Q of the Migration Act 1958 (Cth) – first respondent sponsored four employees' 457 visas – second respondent at all times sole director and ultimate shareholder of first respondent – where respondents' conduct involved calculated, systematic, repeated and callous infringements of the conditions of visa sponsorship and employee rights – where respondents' conduct involved numerous breaches of underpaying wages by recovering a portion of them from employees and failing to pay hours of overtime worked – breaches accepted to be of the most serious kind – assessment of penalties not constrained by the penalty for a single contravention, Migration Act s 486V(2) – totality principle applied – restitution payments ordered

Legislation: Fair Work Act 2009 (Cth), s 557 Migration Act 1958 (Cth), ss 140Q, 486R, 486R(6), 486S, 486U, 486V, 486V(2), 486ZD Migration Regulations 1994 (Cth), regs 2.79, 2.79(3), 2.86, 2.87, 2.87(1B)

Cases cited: Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (No 7) [2016] FCA 424 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 Australian Energy Regulator v Snowy Hydro Limited (No 2) [2015] FCA 58 Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 90 ALJR 113 Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; (2010) 194 IR 461; 269 ALR 1 Markarian v The Queen (2005) 228 CLR 357 Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; (2012) 287 ALR 249