Cardenas v Minister for Immigration & Multicultural Affairs [2001] FCA 17 (18 January 2001)

Last Updated: 18 January 2001

FEDERAL COURT OF AUSTRALIA

Cardenas v Minister for Immigration and Multicultural Affairs [2001] FCA 17

MIGRATION - ADMINISTRATIVE LAW - Business (Long Stay) visa - applicant and Australian sponsor entered into employment contract in Chile - sponsor nominated applicant - applicant was granted visa - applicant migrated to Australia with his family and commenced employment with sponsor - sponsor unsuccessfully attempted to impose wage and other conditions inconsistent with relevant award - sponsor then terminated applicant's employment - applicant obtained similar position with another employer ("the second employer") - second employer extremely satisfied with applicant's standard of work - second employer applied for and was granted business sponsorship on basis that it might nominate applicant for the activity he was undertaking - respondent cancelled applicant's visa - Immigration Review Tribunal set aside that decision - second employer did not nominate applicant, but continued his employment until terminating it on instructions from respondent - respondent forthwith again cancelled applicant's visa - applicant applied to Migration Review Tribunal (the successor to the Immigration Review Tribunal) for review of that decision - Migration Review Tribunal affirmed the decision because "grounds did exist for" such cancellation - whether Tribunal exercised its discretionary power without regard to the merits of the particular case - Tribunal based its decision on a finding that applicant had "been without a sponsor for almost 20 months" - whether that was a fact which did not exist - whether termination of employment brought first employer's obligations as a sponsor to an end - whether any evidence or other material to justify the making of the decision - Tribunal's decision set aside.

Migration Act 1958 (Cth), ss 116(1)(a), 476(1)(g), 476(4)

Migration Regulations 1.20, 1.20B, 1.20C, 1.20D, 1.20G, 1.20H, Schedule 2 Cl 457.22

Brehoi v Attorney-General of the Commonwealth of Australia [2000] FCA 1747 referred to

Tour Gul v Minister for Immigration and Multicultural Affairs [2000] FCA 1537 applied

CARDENAS v MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

W 78 of 2000

CARR J

18 JANUARY 2001

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 78 OF 2000

BETWEEN:	BENEDICTO ALEXIS CARDENAS CARDENAS Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	CARR J
DATE OF ORDER:	18 JANUARY 2001
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The decision of the Migration Review Tribunal, dated 27 April 2000, be set aside and the matter be remitted to the Tribunal (differently constituted) for decision according to law.

2. The respondent pay the applicant's costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 78 OF 2000

BETWEEN:	BENEDICTO ALEXIS CARDENAS CARDENAS Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	CARR J
DATE:	18 JANUARY 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

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 *}The evidence shows that from September 1998 to the date of Ms Bradford's letter the applicant (being the holder of a Bridging E Visa and with approval to work) had been lawfully employed by Dowding & Mills as a motor rewinder, being an activity which Ms Bradford had approved as a "key activity" at the time he commenced employment with Cervantes. It does not seem to have occurred to Ms Bradford that the applicant might have been invited to apply for the Secretary's permission in writing to change employer, as referred to in Condition 8107. As to the last paragraph of the above letter, it must have been obvious to all concerned that, in the circumstances of what had transpired in July-August 1998, the prospects of the applicant returning to work for Cervantes were very slim.

19 The second letter which Ms Bradford chose to send to the applicant on 1 April 1999 was a notice of intention to cancel his visa because he was no longer employed by Cervantes Electrical Engineering. The letter included the following paragraph in bold type:

"You must provide your response within 35 days of the date of this letter. If you do not respond within that time, or if you do not have a Nomination by a Business Sponsor lodged by Dowding & Mills approved by this Department within that time, a decision on whether to cancel your visa will be made using information already held by the Department."

20 On the same date, 1 April 1999, Ms Bradford wrote to the manager of Dowding & Mills. That letter, omitting formal parts, read as follows:

I refer to the Business Sponsorship which was approved on 4 March 1999 for the nomination of one (1) position and your employment of Mr Cardenas Cardenas.

Departmental records show that a Nomination by a Business Sponsor (Form 1068) and evidence of labour market testing have not been lodged.

Mr Cardenas Cardenas was given permission to work (because of extreme financial hardship) while he was awaiting the outcome of his appeal to the Immigration Review Tribunal, (IRT).

On 22 March the Tribunal handed down its decision and Mr Cardenas Cardenas' visa was reinstated. Although Mr Cardenas Cardenas is no longer employed by Cervantes the condition attached to his visa does not allow him to change employer or occupation in Australia without the permission in writing by the Secretary, therefore he should cease work with your company immediately and not recommence until your Nomination has been approved.

Should you continue to employ Mr Cardenas Cardenas without having lodged a Nomination for the position with this office, or without written permission from our Department, you will jeopardise your standing as a Sponsor.

I am enclosing form 1068 for you to complete and return to me within thirty five (35) days of the date of this letter, together with your cheque of $210 and evidence that the position was labour market tested as well as details of unsuccessful applicants."

21 On 13 April 1999 the State Manager of Dowding & Mills sent a fax to Ms Bradford in the following terms:

"Dear Ms. Bradford

With reference to your letter to our Karratha Branch Manager, Mr Murray Hart, in relation to our employee Mr. Cardenas Cardenas, we advise the following:

We are currently in the process of negotiation with Mr. Cardenas concerning his employment with our company, and possible sponsorship.

We anticipate that we will be in a position to make a decision with regard to the lodgement of form 1068 by the end of this week.

We would appreciate your patience in this matter until that time.

Regards,

Bob Clarys

WA State Manager"

22 The applicant's evidence is that on or about 14 April 1999 Ms Marg Le Sueur, a solicitor with the Pilbara Community Legal Service told the applicant that she had been advised by a Mr Greg Wallis of the respondent's Department that the letter of 1 April 1999 giving notice of intention to cancel the applicant's visa "had no validity". The reasons for this advice do not appear from the evidence. However, on 13 April 1999 Ms Le Sueur sent a fax to the respondent's Canberra office (with a copy to Mr Wallis in Perth) in which she made submissions on behalf of the applicant. Those submissions are referred to at paragraph 28 below.

23 There is in evidence a letter dated 27 June 2000 from Dowding & Mills to the applicant's counsel which was written by the manager of Dowding & Mills, a Mr Murray Hart. In that letter Mr Hart, relevantly states:

"I was advised by Marg Le Sueur to avoid Market Testing that we should use a key position such as a heavy coil assembler or coil assembler rather than an electrical fitter.

I had done this to assist Mr Cardenas with employment with Dowding & Mills. I had found Maria Bradford to be very misleading at times.

Dowding & Mills filled out the form 1067 Business Sponsorship Application which is the first part of a three part process.

I completed part one and Maria Bradford was trying to tell me that we were now responsible for Mr Cardenas and his sponsorship. Once I had spoken with Peter Williamson, I fully understood the three stage process and not the misleading information Maria Bradford had told me.

Because of legalities involved with the sponsorship, it was Dowding & Mills decision not to fill out the form 1068 and not to pursue the sponsorship with DIMA.

We were then advised in writing to stand down Mr Cardenas, which we did. Mr Cardenas then obtained a bridging visa, which (sic) I then offered him a casual position as a motor winder.

He wanted a full time position but unfortunately I could not offer it to him. He obtained work from a competitor of Dowding & Mills on a full time basis as a motor winder."

24 On 27 April 1999 Mr Wallis of the respondent's Department sent a fax to the State Manager of Dowding & Mills, the relevant portions of which read as follows:

"This is to confirm my earlier verbal advice that Mr Cardenas Cardenas has not been approved to work for Dowding & Mills.

The only way that he can be approved to work for the company is for the company to be approved as a sponsor.^* 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."

THE APPLICATION FOR REVIEW

36 In his amended application, the applicant relied upon two grounds, which were as follows:

"1. The decision of the Migration Review Tribunal dated 27 April 2000 ("Decision") was an improper exercise of the power conferred by the Migration Act 1958 and Migration Regulations 1994 in that it involved the exercise of a discretionary power without regard to the merits of the particular case.

2. There was no evidence or other material to justify the making of the Decision as the Decision was based on the existence of a particular fact and that fact did not exist."

GROUND 1

37 In further and better particulars of his amended application, filed on 3 July 2000 in anticipation of the relevant amendment being allowed, the applicant gave the following relevant further and better particulars of Ground 1:

"(iv) Dowding & Mills were influenced in their decision by prejudicial representations made to them by DIMA.

(v) It is Departmental policy that revocation of a business sponsorship does not necessarily trigger an automatic cancellation of the Business Visa concerned."

38 It seems reasonably clear in relation to this ground that the applicant is relying upon s 476(1)(d) of the Act, when read with s 476(3)(c). Those sub-paragraphs provide for judicial review where a decision was an improper exercise of power manifested by an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case.

39 The manner in which the applicant has particularised the relevant policy in sub-paragraph (v) set out above is a little confusing. It suggests that the applicant's complaint is that the Second Tribunal did not apply the policy that revocation of a business sponsorship does not necessarily trigger an automatic cancellation of the business visa concerned. Section 476(3)(c) does not provide a ground of review based on failure to apply Departmental policy.

40 However, taking the ground as a whole, I have read it as a complaint that the Second Tribunal exercised its discretionary power in accordance with the PAM without regard to the merits of the particular case. The case was fought on the basis that the power conferred by s 116(1)(a) was discretionary. Given the language of s 116(2) and (3) I think that was a correct assumption.

41 On one reading of the Second Tribunal's decision, all it has done is to find "... that grounds did exist for the cancellation of the Review Applicant's subclass 457 visa on 17 May 1999". That is what it said in paragraphs 16 and 17 above. Another view might be that the Second Tribunal recognised, in paragraph 16, that there was a discretion to be exercised. The authorities are quite clear that the reasons of a decision-maker, in this case the Second Tribunal, are not to be over-zealously scrutinised for error.

42 But I think that it is sufficiently clear that the Second Tribunal, when it came to making its decision on 27 April 2000 (some eleven months after the primary decision), did not give consideration to the exercise by it of the discretion vested in it. There was no discussion in its reasons of whether, in all the circumstances placed before it, the Second Tribunal might exercise its own discretion not to cancel the visa.

43 In my opinion, a fair reading of the Tribunal's reasons shows that it did not regard itself as exercising a discretion, but simply seeking to ascertain whether grounds existed for the cancellation of the applicant's Business Visa on 17 May 1999. There is evidence that the respondent's Department normally takes into account a wide range of matters when deciding whether to cancel a business visa - see the list set out in Ms Bradford's letter dated 1 April 1999 to the applicant. They include the length of lawful residence in Australia, hardship to the applicant and others, the circumstances in which the ground for cancellation arose, the seriousness of the ground for cancellation and the applicant's behaviour "in relation to the Department". None of these matters, nor any other discretionary matters, were referred to by the Second Tribunal in its reasons. In all of the circumstances, I infer that the Second Tribunal did not consider those or any other discretionary matters [see the authorities discussed by Hely J in Brehoi v Attorney-General of the Commonwealth of Australia [2000] FCA 1747 at paras 37-38], and simply exercised its power in accordance with the PAM without regard to the merits of the particular case.

44 The Second Tribunal's reasons stand in marked contrast to those of the First Tribunal where the Senior Member concerned clearly recognised the discretion vested in her and exercised it to set aside the decision under review, giving brief but sufficient, and indeed cogent, reasons for doing so.

45 As I propose to uphold ground 1 of the application, it is strictly not necessary for me to consider ground 2. But I shall do so briefly.

GROUND 2

46 Section 476(1) of the Act relevantly provides, as a ground of review:

"(g) that there was no evidence or other material to justify the making of the decision."

47 Section 476(4) provides that the ground specified in s 476(1)(g) is not to be taken to have been made out unless (relevant to this case) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.

48 In terms of the application of s 476(1)(g), when read with s 476(4)(b) it seems clear that the Second Tribunal based its decision on the existence of what it saw as being a particular fact, namely, that the applicant had been without a sponsor since 29 July 1998.

49 Counsel for the applicant submitted that that fact did not exist, on two bases. The first was that Cervantes' sponsorship extended through to 21 October 1998. Secondly, counsel relied upon the fact that Dowding & Mills had been approved as a standard business sponsor for the specific purpose of employing the applicant and had in fact employed the applicant as an electrical motor rewinder and was prepared to re-employ him in that capacity.

50 Although, as will be seen below, I accept the applicant's submission, I do not accept the two bases upon which the submission was put. First, the precise number of months which had expired between the applicant's cessation of employment with Cervantes and the Second Tribunal's decision was not the material fact upon which it based its decision. The Second Tribunal referred to a period of "almost 20 months". The actual period from 21 October 1998 to 27 April 2000 is about 18 months, but in my view nothing turns on that difference. Furthermore, although Dowding & Mills received the respondent's approval as a standard business sponsor, it did not assume the obligations of sponsorship in respect of the applicant.

51 However, I think that the ground is made out on another basis, a matter which I raised with both counsel at the hearing of this application. The matter which I raised was whether Cervantes had ever ceased to be the applicant's sponsor. If not, then the Second Tribunal based its decision on the existence of a particular fact which did not exist.

52 As I have mentioned above, s 116(1)(a) of the Act relevantly provides that the Minister may cancel a visa if satisfied that any circumstances which permitted the grant of the visa no longer exist. The circumstances which permitted the grant of this particular visa are set out in Regulation 457.22 of the Migration Regulations. In particular sub-clause (4) is relevant. The circumstances which permitted the grant of the visa, when read with the list in that sub-clause were as follows:

(a) the activity in which the applicant proposed to be employed in Australia was a key activity i.e. "motor rewinder" see annexure BACC3 to Exhibit A1;

(b) that activity was the subject of an approved business nomination by Cervantes (see the same document);

(c) Cervantes was a standard business sponsor;

(d) the applicant was nominated in relation to the activity by Cervantes; and

(e) the application was made for a stay in Australia of more than 12 months and the applicant demonstrated the skills necessary to perform the activity.

53 The only relevant circumstance that had since ceased to exist was that Cervantes terminated the applicant's employment. There was no evidence that Cervantes' obligations as sponsor of the applicant had ceased. It is true that Cervantes' approval as a standard business sponsor had ceased to have effect when either the four Subclass 457 visas had been granted or at the expiry of 12 months from that approval, whichever happened first - see Regulation 1.20D(6). It can be seen that approval of a person as a standard business sponsor becomes spent on the grant of the relevant number of visas or, at the latest, twelve months from its grant (or on revocation of the approval). But s 116(1)(a) cannot be construed and applied to that circumstance, because it is quite clear from Regulation 457.223(4) that the Business Visa may have a duration of more than 12 months. The applicant's visa was issued for a four year period. The fact that the approval had ceased to have effect did not, in my view, put an end to Cervantes' obligations as a sponsor of the applicant.

54 The expression "sponsor" is defined in Regulation 1.20 as meaning a person who undertakes the obligations of a sponsor in relation to the applicant for a visa. Regulation 1.20(2)(b) relevantly defines the obligations of a sponsor in relation to an applicant for a visa in terms of the sponsor accepting responsibility for:

* all financial obligations to the Commonwealth incurred by the applicant arising out of the applicant's stay in Australia;

* compliance by the applicant with all relevant legislation and awards in relation to any employment entered into by the applicant in Australia; and

* unless the Minister otherwise decides, compliance by the applicant with the conditions under which the applicant was allowed to enter Australia.

55 I have found (see paragraph 4 above) that Cervantes had, prior to 20 November 1997, applied for and obtained approval from the respondent to be a standard business sponsor. To obtain that approval, Cervantes must have completed, as I have found at paragraph 12 above, a Form 1067 giving the standard undertaking of sponsorship in that form. That undertaking, as might be expected, incorporates the obligations set out in Regulation 1.20(2)(b). The currency of term of that undertaking can be seen from its opening sentences which read as follows:

"The Business [the sponsor] undertakes to do the following in relation to sponsored persons and dependents while in Australia, unless the person has, with agreement from DIMA subsequently been sponsored or nominated by another employer who has become responsible for that person:

. . ."

56 The evidence is quite clear that the applicant in this matter has never, either with or without the agreement of the respondent's Department, subsequently been sponsored or nominated by another employer who has become responsible for him.

57 Accordingly, in my view, Cervantes remained, and still remains, a person who has undertaken the obligations of a sponsor in relation to the applicant. It is true that Cervantes terminated the applicant's employment. During the course of argument I asked counsel for the respondent whether there was any regulation which provided that the holder of this type of visa had to continue in the employment of the original sponsor for him to be regarded as a person who had a sponsor. Apart from a reference to Condition 8107 in Schedule 8 (which provides that the holder of a visa must not change employer or occupation in Australia without the permission in writing of the Secretary) I was not referred to any such regulation. Nor could I find such a regulation. Indeed it would be surprising if an employer sponsor could cease to have the obligations of a sponsor simply by terminating the employment of the relevant visa holder. Such a situation could easily give rise to abuse by an unscrupulous employer. The employee might be forced to accept illegally sub-standard conditions of employment on pain of having his or her visa cancelled. The migrant would be turned into a bondslave.

58 In my opinion, the evidence shows that Cervantes at all material times remained the applicant's sponsor, notwithstanding that it had terminated the applicant's employment. The applicant's visa was not cancelled, as it might have been, on the ground that the applicant had not complied with a condition of the visa [see s 116(1)(b)] but on the basis that circumstances which permitted the grant of the visa no longer existed [see s 116(1)(a)] - in particular because the applicant had been without a sponsor for almost 20 months.

59 I am satisfied that that fact did not exist.

60 The authorities show that an applicant who relies on s 476(1)(g) must satisfy that provision as well as the relevant provision of s 476(4) i.e. the fact that the applicant has satisfied s 476(4)(b) does not establish a ground under s 476(1)(g) but merely provides a gateway to that ground - see Tour Gul v Minister for Immigration and Multicultural Affairs [2000] FCA 1537 at para 41 and the cases there cited. However, I am satisfied on the evidence that there was no evidence or other material to justify the making of the decision on the ground of satisfaction that any circumstances which permitted the grant of the visa no longer existed.

CONCLUSION

61 For the foregoing reasons, the Tribunal's decision will be set aside and the matter remitted to a differently-constituted Tribunal for decision according to law.

62 It would appear that there is a demand for the applicant's skills as an electrical motor rewinder. As I see it, Cervantes remains the applicant's sponsor until some other employer sponsors or nominates him. In the meantime it will be open to the respondent to give permission in writing for the applicant to change employer, from time to time, to an employer who is prepared to employ him as an electrical motor rewinder.

63 The above reasons had been completed in draft form when my associate received communications from the applicant relating to the possibility of such employment, a possibility which his counsel had mentioned at the hearing. No leave was granted for the making of any further submissions or the forwarding any further material to the Court. I have disregarded those communications.

I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.

Associate:

Dated: 18 January 2001

Counsel for the Applicant:	Mr S B Watters
Solicitor for the Applicant:	Messrs Feinauer & Associates
Counsel for the Respondent:	Mr P R Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	12 December 2000
Date of Judgment:	18 January 2001