Cardenas v Minister for Immigration and Multicultural Affairs

introduction 1 This is an application for an order of review of a decision, made on 27 April 2000 by the Migration Review Tribunal, to affirm the decision of a delegate of the respondent, on 19 October 1999, to cancel the applicant's Business (Long Stay), Class UC, Subclass 560 visa ("the Business Visa").

factual background 2 The applicant, who is now aged 44, is a citizen of Chile. In August 1997 the applicant was employed as a senior electrical motor rewinder for a company known as Codelco Chile ("Codelco") in Chile. The applicant had by then worked for Codelco for 21 years. That long-term employment history, plus his interest in working with high-powered electrical motors, would, so one might think, have entitled him to more sympathetic treatment as a business migrant than the respondent's Department decided to mete out to him. 3 On 5 August 1997 a company called Cervantes Electrical Engineering Pty Ltd ("Cervantes") of Port Hedland in Western Australia placed an advertisement in a Chilean newspaper seeking to induce electrical motor rewinders to come to Port Hedland to work for it. The applicant responded to the advertisement by forwarding his resumé to Cervantes by facsimile. The next day Mr Miguel Cervantes telephoned the applicant and told him that he had been successful in gaining employment with the company. There ensued numerous telephone calls between Mr Cervantes and the applicant in some of which Mr Cervantes sought the applicant's advice in relation to problems which had arisen in Cervantes' workshop. At one stage Mr Cervantes forwarded to the applicant photographs of electrical motors which, so it was implied, he could reasonably expect to be working on for the company. The photographs were of high-powered electrical motors, which caught the applicant's interest. His unchallenged evidence is that he joined Cervantes to re-wind high-powered motors, but when eventually he came to work at Cervantes he only saw and worked on small electrical motors. There were other disappointments which I shall describe later in these reasons. 4 On 20 November 1997 an officer of the respondent's Department (Ms Maria Bradford), acting as a delegate of the respondent, issued an instrument under Regulation 1.20H of the Migration Regulations 1994. That instrument, known as an "Approval of Nomination of Business Activities" approved the nomination of a business activity, namely "Motor Rewinder" (proposed by Cervantes) as a "key activity". One significant consequence of that approval was that Cervantes was relieved of the requirement of "labour market testing" - see Reg 1.20G(4). Labour market testing is defined in Reg 1.20B as testing the Australian labour market to demonstrate that a suitably qualified Australian citizen or Australian permanent resident is not readily available to fill the position. Another significant consequence of that approval was that it satisfied criteria 4(a) and (b) of the criteria set out in Clause 457.22 for the grant to an applicant of a Business Visa of the above-mentioned subclass. From a notation at the foot of Ms Bradford's letter of 20 November 1997 to Cervantes, with which the approval instrument was enclosed, I infer (and so find) that Cervantes had previously applied for and obtained approval from the respondent to be a standard business sponsor, as referred to in Regulations 1.20B, 1.20C(1)(b) and 1.20D, for four proposed employees. The notation read: "Sponsorship details: SBS (4 nominations) Proposed period of employment: Four (4) years." I refer below to further details of the relevant regulatory regime. 5 On 17 December 1997 Mr Cervantes met the applicant in Chile and the parties signed a contract for the employment of the applicant by Cervantes. The contract was in Spanish. The applicant then lodged an application for a visa at the Australian Embassy in Santiago. A Mr Jaime Perez, an officer at the Australian Embassy, told the applicant that the contract which he had signed was not in accordance with Australian law because it required him to work a ten hour day for six days per week and provided for no holiday or sick leave pay. Mr Perez contacted Mr Cervantes about the matter. On 14 February 1998 Mr Cervantes forwarded to Mr Perez a copy of the relevant award showing that the applicant would only be required to work 38 hours per week and would be paid overtime, holiday and sick leave. The applicant's uncontradicted evidence shows that Mr Cervantes had no intention that his company would honour the award, and strongly resented Mr Perez's interference [see Exhibit R1 p 20]. On 10 March 1998 the applicant was granted the Business Visa permitting him and his family to remain in Australia until 10 March 2002. On 30 March 1998 the applicant and his family (comprising his wife, niece and her daughter) arrived in Sydney and the next day arrived at Port Hedland. 6 On 7 April 1998 the applicant started work with Cervantes. The applicant's (again) uncontradicted evidence is that Mr Cervantes then informed him that he would be obliged to work under the terms of the contract (i.e. not in accordance with the relevant award). Cervantes did not provide the applicant with a tax file number until the applicant requested one in mid July 1998. The applicant's wife and niece obtained employment in Port Hedland as industrial cleaners. On 29 July 1998 Mr Cervantes told the applicant that he was "too expensive" and that there was insufficient work at Cervantes for him. Mr Cervantes asked the applicant to work for half the sum which he was then being paid, but to work for the same number of hours. The applicant refused to work under those conditions and Cervantes dismissed him. The relevant union took the matter up on behalf of the applicant and endeavoured, unsuccessfully, to mediate the matter. The union also assisted the applicant with a complaint, made by him on 11 August 1998, to the Western Australian Industrial Relations Commission. 7 On 10 August 1998, before the Commission had heard the applicant's complaint, the respondent's Department sent a letter (signed by Ms Bradford) to the applicant giving notice of the respondent's intention to cancel his visa. 8 On 21 August 1998 a Migrant Community Worker, Ms Collene Longmore, wrote to the respondent's Department on the applicant's behalf explaining the circumstances of his dismissal and confirmed the information to that effect which she had given by telephone to that officer on 12 August 1998. Ms Longmore made detailed submissions to the respondent's Department and advised that the Industrial Relations Commission, which heard the applicant's complaint to it on 21 August 1998, had instructed Cervantes to reinstate Mr Cardenas until 21 October 1998. A copy of the order shows that it was made by consent. 9 On 1 September 1998 Ms Bradford, as a delegate of the respondent, sent a letter to the applicant informing him that on 25 August 1998 she had cancelled his visa. The letter appears to have been based on a pro forma standard letter and, even then, Ms Bradford does not appear to have had her mind properly focussed on the function which she was carrying out. (Cancellation of a person's visa is, of course, a very serious matter). For example, the letter stated that the Department had decided that there were grounds for cancellation of the applicant's visa under paragraph 116(1)(a) of the Migration Act 1958 (Cth) ("the Act") because he was no longer employed by his sponsor "the Sheraton Perth Hotel" and, in the next paragraph of the letter, the applicant's sponsor is named as "Cervasntes (sic) Electrical Engineering". I infer that the pro forma letter which Ms Bradford used as a precedent related to someone who had once been employed under the sponsorship of the Sheraton Perth Hotel. The applicant had not been so employed. Section 116(1)(a) of the Act relevantly provides that the respondent may cancel a visa if he or she is satisfied that any circumstances which permitted the grant of a visa no longer exist. Ms Bradford's reasons for being so satisfied were expressed as follows: "While the Industrial Relations Court's instructions were for Mr Cardenas to be reinstated until 21 October 1998 and for Mr Cardenas to receive payment of salary, he has stated that he is not required to attend work. Therefore, there is no obligation for him to remain in Australia for that purpose." 10 Ms Bradford, in her written decision, then stated that she had considered the reasons advanced on the applicant's behalf as to why his visa should not be cancelled [these included the facts that the applicant had taken up employment with Cervantes in good faith on the understanding that it would be for a period of four years, that he had left a position of some status with Codelco where he had been employed for 21 years, and various other matters relating to the impact on the applicant and his family of being forced to return immediately to Chile] but said "… however these reasons were not considered sufficient to outweigh the existence of the ground for cancellation." She did not provide any further elaboration. 11 The applicant then applied to the Migration Review Tribunal for review of that decision. As a result of that application he and his family were granted a Bridging E Visa on 17 September 1998. The applicant sought employment in the Pilbara region as an electrical motor rewinder and, after an interview on 18 September 1998, was offered employment as an electrical motor rewinder at Karratha by a company known as Dowding & Mills (Australia) Pty Ltd ("Dowding & Mills"). He accepted that offer and on 24 September 1998 commenced employment with Dowding & Mills as an electrical motor rewinder for a three month probationary period. At the end of that period his employment was extended for a further period of nine months, to be reviewed every 12 months thereafter. On 15 January 1999 the Immigration Review Tribunal wrote to Dowding & Mills requesting comments on the applicant's performance at work as compared to the standards expected from an Australian tradesman. The response from Dowding & Mills, by its letter dated 20 January 1999, was as follows: "In his three month trial period, I have found his work to be nothing less than excellent. He is introducing new methods to our apprentices and trades persons, which includes his physical technique in the work place. I do hope this reference is enough for the Tribunal to grant his Visa to allow both employees and employer to learn from his experience." 12 In late February or early March 1999 Dowding & Mills applied to the Department for approval as a business sponsor. Under the relevant regulatory regime this is the first of the three steps which may lead to the grant of a business visa. The first step involves completion of a form known as "Form 1067". By completing that form the would-be employer applicant gives details of its business, provides documentary evidence of its financial position and organisational structure, and gives a comprehensive undertaking in relation to sponsored persons and dependents while in Australia. I infer (and so find) from the evidence to which I refer at paragraph 4 above, that Cervantes had given such an undertaking (in a Form 1067) at some time before 20 November 1997. Once an applicant employer has been approved as a business sponsor, the next step is for the employer to complete a Nomination Application (Form 1068). However, there is no reason why both Forms 1067 and 1068 cannot be lodged simultaneously. The Nomination Application relevantly requires the applicant to give details of the position to be filled and the nominee. It would appear from annexure "BACC15" to Exhibit A1 (the applicant's affidavit sworn 5 July 2000) that in a submission which Dowding & Mills made at the time of lodging its sponsorship application, it referred to the position which it intended the applicant to occupy as being that of a "coil assembler". That annexure was a letter dated 4 March 1999 from the Perth Business Centre section of the respondent's Department. The author of that letter (Mr Peter Williamson) pointed out that the occupation of a coil assembler was a "trade occupation" and was regarded as non-key and subject to full labour marketing testing. 13 The applicant's uncontradicted evidence is that he was not employed as a coil assembler by Dowding & Mills, but was at all material times employed as an electrical motor rewinder. The applicant says that the job description of "coil assembler", mentioned by Dowding & Mills when it submitted the sponsorship application form, was an error made as a result of reliance upon advice from a solicitor in Port Hedland. 14 Mr Williamson's letter of 4 March 1999 included the following information: "The application for approval as a business sponsor has been assessed and DOWDING & MILLS has been approved as a Standard Business Sponsor (SBS). The sponsorship approval number is PE 6698000206023. This sponsorship has been approved for the nomination of 1 position during the validity of the sponsorship. The SBS status will remain valid until all nominations are filled, or for 12 months from the date of the attached instrument (whichever is the lesser period). Should DOWDING & MILLS wish to nominate additional positions, a further Business Sponsorship Application (form 1067) will need to be completed. DOWDING & MILLS may nominate a business activity by completing and lodging a Nomination by a Business Sponsor (form 1068). A separate nomination should be lodged for each position to be filled, quoting this sponsorship approval number and including details of the position. Should labour market testing be required, the result should accompany that application. An application fee of $210 per nomination applies." 15 On 22 March 1999 the Immigration Review Tribunal set aside Ms Bradford's decision to cancel the applicant's visa. I shall refer to the Tribunal which made that decision as "the First Tribunal" and its decision as "the First Tribunal's decision". The First Tribunal based its decision on two factors. The first was that when (on 1 September 1998) Ms Bradford decided to cancel the applicant's Business Visa, he was still in the employ of Cervantes and was not in breach of Condition 8107 of Schedule 8 to the Migration Regulations. Condition 8107 provides that the holder of the visa must not change employer or occupation in Australia without the permission in writing of the Secretary of the Department. The First Tribunal noted that, under the terms of the consent orders of the Industrial Relations Commission, the applicant's employment contract continued until 21 October 1998. 16 The second factor upon which the First Tribunal based its decision was that there existed sufficient grounds to warrant the exercise of a discretion not to cancel the applicant's Business Visa. The First Tribunal was clearly impressed by the fact that the applicant had found another employer who regarded his work as being exemplary. The First Tribunal notified the applicant of its decision on 22 March 1999. Its covering letter stated that a copy of the decision had also been sent to the respondent's Department. 17 I think that it was unfortunate that the matter of the applicant's status then continued to be dealt with by Ms Bradford, the decision-maker who initially decided to cancel the applicant's Business Visa and whose decision was set aside by the First Tribunal. Ms Bradford moved swiftly to nullify the effect of the First Tribunal's decision. It seems reasonable to assume that Ms Bradford would have been notified of the First Tribunal's decision on or about 23 March 1999 (i.e. the day after it was made). Within seven working days of such notification, Ms Bradford saw fit to send three letters, each dated 1 April 1999, two of which were to the applicant. The shorter of the two letters to the applicant (omitting formal parts, but showing in bold type the paragraphs which were in bold type) read as follows: "Dear Mr Cardenas Cardenas I wish to inform you that your visa (and your family's) has bee (sic) reinstated and that although you are no longer employed by Cervantes Electrics, the condition attached to your visa does not allow you to change employer or occupation in Australia, without the permission in writing by the Secretary. * Therefore you should cease work with Dowding & Mills immediately and not recommence until a Nomination by a Business Sponsor (Form 1068) has been lodged by your new Sponsor and approved by our office. A letter was today forwarded to Dowding & Mills requesting them to submit Form 1068 (Nomination by a Business Sponsor) together with a cheque of $210 and evidence that the position was labour market tested as well as details of unsuccessful applicants, within thirty-five (35) days. If you are located working for an employer other than the one approved by this Department, your visa will be cancelled. Yours sincerely Maria Bradford Perth Business Unit" 18 Once the company is approved as a sponsor it can then nominate Mr Cardenas Cardenas who would then need to lodge a fresh application for Temporary Residence in Australia to give him approval to work for the company. ie it is a three stage process. As this process has not occurred Mr Cardenas Cardenas does not have approval to work for your company. He is therefore working illegally." 25 *I interpolate here to note that, as mentioned above, on 4 March 1999 Mr Williamson of the respondent's Perth Business Centre had written to Dowding & Mills confirming that it had been approved as a sponsor. That is, the first stage had already taken place earlier in the previous month and before the First Tribunal decision. 26 The respondent's Department was well aware (from a perusal of the First Tribunal's decision) that the applicant had been working as an electrical motor rewinder for Dowding & Mills since October 1998 and that his work was described by that firm as "nothing less than excellent". Ms Bradford had (on 20 November 1997) approved the business activity of "motor rewinder", on the application of Cervantes, as a key occupation. The process whereby Dowding & Mills could become the applicant's sponsor had been activated. Instead of checking the actual work which the applicant was engaged upon, or authorising even a temporary change of employment, Ms Bradford and Mr Wallis chose to bring about the immediate cessation of his employment with Dowding & Mills. It is difficult to see how that course served either the public interest or the policy underlying the grant of Business Visas. 27 On 12 April 1999 the applicant's niece had orally asked Mr Wallis to assign their case to someone other than Ms Bradford, due to what she perceived as being bias on the part of Ms Bradford towards the applicant's family. That request, according to the applicant's uncontradicted evidence was refused and was met with observations by Mr Wallis which included "If you are thinking of seeking permanent residence, you will not get it, especially you". 28 On 17 May 1999 Ms Bradford cancelled the applicant's Business Visa. Both in her letter of that date and in the record of that decision Ms Bradford stated (wrongly) that the applicant had not replied to her notice of 1 April 1999. She appears to have overlooked Ms Le Sueur's e-mail of 13 April 1999 which sought the exercise of the respondent's discretion not to cancel the visa. The e-mail included the following passages: "Mr Cardenas is in a truly terrible situation. He has travelled from Chile with his wife and family in good faith on the basis of promises made to him by an Australian company. He has been badly let down by that company. Mr Cardenas has now found himself a new position and is seeking to extricate himself from the legal and financial mess in which he has found himself. If he were to be forced to cease work now, it would prove disastrous. There is no social security or other government benefits available to him. He needs to work to support his family. Furthermore, the Australian company for whom he currently works would lose a valuable employee at a time when they have a large contract. The job on which Mr Cardenas is currently working is worth around $50,000 to the company. The comapny (sic) Manager, Mr Hart has advised me that if Mr Cardenas were to be forced to cease work forthwith, it would cause major problems for this company. I am certain that this is not the aim of the Department of Immigration, particularly in relation to its business migration program. Furthermore, when looking at the matters to be considered when deciding whether or not to cancel a visa, you will note that matters such as hardship to both the visa applicant and the Australian Company are matters which are to be taken into account. We urge you to also take into account the fact that Mr Cardenas has always acted honestly in relation to the Department and has not set out to deliberately breach immigration law." 29 In her letter of 17 May 1999 Ms Bradford gave as her reasons for cancelling the visa the fact that the applicant was no longer employed by Cervantes "… and the new Sponsor has failed to lodge a Nomination by a Business Sponsor." Ms Bradford's two letters sent to the applicant (by registered mail) on 1 April 1999 had each been addressed to his then current Karratha address. Her letter of 17 May 1999 giving notice of her decision to cancel the applicant's visa was sent to his former address in South Hedland. Fortunately for the applicant, on 19 May 1999, another officer of the Department (Mr Michael Cain) sent to him a letter enclosing applications for Bridging Visas E and referring to the fact that the Business Visas had been cancelled on 17 May 1999. That letter enclosed a copy of Ms Bradford's letter dated 17 May 1999 and was addressed to both the applicant's former South Hedland address and his then current Karratha address. Were it not for the diligence of Mr Cain, the applicant might have been faced with a time bar upon seeking review of the cancellation decision. 30 On 27 May 1999 the applicant applied to the Immigration Review Tribunal for review of Ms Bradford's decision of 17 May 1999. Under transitional legislative provisions relating to the termination of the operations of the Immigration Review Tribunal, that application was dealt with by the Migration Review Tribunal ("the Second Tribunal"). 31 It appears that Dowding & Mills terminated the applicant's employment in April or May 1999, but requested him to inform them immediately if he obtained a Bridging Visa with permission to work, as they wished him to return to their employment as an electrical motor rewinder. By letter dated 15 June 1999 Dowding & Mills informed the applicant that they had decided not to sponsor him. Three reasons were given for that decision. The first two related to repatriation and health cover costs. The third was that the company was not prepared to spend money advertising throughout Australia for a period of four weeks or more as required for labour market testing. In that letter Dowding & Mills confirmed that if the applicant were successful in obtaining a visa they "… would have no hesitation in re-employing" him. The next day, 16 June 1999, the respondent's Department issued a Bridging Visa to the applicant with permission to work. On 21 June 1999 the applicant recommenced employment with Dowding & Mills as an electrical motor rewinder on an hourly basis. Towards the end of August 1999 the number of hours of work which Dowding & Mills were able to make available to the applicant decreased to the extent that he was obliged to leave that employment on 25 August 1999. On 26 August 1999 the applicant commenced employment with Electrical Motor Rewinder Services ("EMRS") in Karratha as an electrical motor rewinder. On 28 January 2000 EMRS retrenched the applicant (and others) due to a change of ownership. EMRS became known as "ABB". In or around early March 2000 ABB offered to re-employ the applicant as an electrical motor rewinder. Dowding & Mills also offered him full time employment as an electrical motor rewinder at about the same time. However, on 8 March 2000, the Second Tribunal had notified the applicant that it would conduct a hearing on 27 March 2000 and invited him to appear. The applicant's evidence is that in those circumstances, due to it being uncertain whether he would be available for work, he declined those offers. The applicant remained in employment as an industrial cleaner. 32 The applicant responded to the Second Tribunal's letter of 8 March 2000 by requesting a hearing, confirming that he would appear and requesting the Second Tribunal to take oral evidence from five named persons including Mr Hart of Dowding & Mills. 33 It is apparent from the Second Tribunal's reasons that the applicant gave evidence to it. That evidence included the fact that he was now working as a cleaner, that he had been unable to find another business sponsor, but was attempting to obtain an "A-Grade licence" for use within his trade. 34 The Second Tribunal, on 27 April 2000, affirmed Ms Bradford's decision. 35 In its reasons the Second Tribunal recited the history of the matter. It referred to the Department's "Procedures Advice Manual" ("the PAM") and to s 116 of the Migration Act 1958 (Cth) ("the Act"). It then said this: "15. Section 116 of the Act empowers the Minister to cancel a visa in certain circumstances. The Review Applicant's subclass 457 visa was cancelled under s 116(1)(a), which states that the Minister may cancel a visa if satisfied that 'any circumstances, which permitted the grant of the visa no longer, exist'. According to (PAM), an example (among others) of where s 116 (1)(a) may be used to cancel a visa is: where a temporary business visa holder ceases to be employed by his/her sponsor or the sponsor withdraws his/her support 16. It is clear from the material before the Tribunal that grounds did exist for the cancellation of the Review Applicant's subclass 457 visa. The Review Applicant has been without a sponsor since 29 July 1998. In the event of the relationship between a subclass 457 visa holder and the business sponsor breaking down, the Tribunal considers it perfectly plausible to allow for a reasonable 'period of grace' during which a new sponsor might be found for the visa holder. The Tribunal recognises that it is unfortunate for the Review Applicant that although D & M did get approval as a business sponsor on 4 March 1999, the company then decided not to proceed with sponsoring him. At the hearing the Review Applicant indicated that he has made other attempts to find an employer/sponsor but without any success. He has thus been without a sponsor for almost 20 months. Conclusion 17. Having carefully considered the whole of the evidence in this matter the Tribunal finds on balance, that grounds did exist for the cancellation of the Review Applicant's subclass 457 visa on 17 May 1999."