Cuello v Minister for Immigration
[2005] FMCA 936
•30 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CUELLO v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 936 |
| MIGRATION – Review of decision of MRT – where the applicant had breached a condition of his visa – where the applicant had not obtained permission to change employers – where the applicant alleges that he was given incorrect advice by an employee of the Department – whether the Tribunal exercised its discretion based upon either a mistake of law or an irrelevant matter – where the applicant received a letter from the Department outlining the conditions of his visa but may not have understood the letter – where the Tribunal took into account the subsequent conduct of the applicant. |
| Migration Act 1958, s.115 |
| Applicant: | LEONARDO CUELLO |
| Respondents: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ANOR |
| File Number: | SYG 1975 of 2003 |
| Judgment of: | Raphael FM |
| Hearing date: | 30 June 2005 |
| Date of Last Submission: | 30 June 2005 |
| Delivered at: | Sydney |
| Delivered on: | 30 June 2005 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Michael Jones |
| Counsel for the Respondent: | Mr Tim Reilly |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
Applicant to pay respondents’ costs assessed in the sum of $3750.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1975 of 2003
| LEONARDO CUELLO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ANOR |
Respondents
REASONS FOR JUDGMENT
Mr Leonardo Fabian Cuello Galli is a national of Uruguay. He arrived in Australia on 13 March 2000 as the holder of a visitor (short stay) subclass 676 visa. He was granted a further subclass 686 visa and on 26 April 2001 he was granted a subclass 457 visa permitting him to work as a motor mechanic. Mr Cuello had been sponsored by his uncle, the proprietor of a business known as Oz-Stop Petrol. The subclass 457 visa had attached to it a condition 8107 which is relevantly in the following form:
“The holder must not change employer or occupation in Australia without the permission in writing of the Secretary.”
Mr Cuello worked for his uncle for approximately six months until on 5 September 2001 a firm of solicitors wrote to the Department on behalf of Oz-Stop petrol station withdrawing its nomination. The circumstances of that withdrawal as advised by the applicant are that he had left the employment of his uncle after being abused in employment by being made to work lengthy hours over and above the award, and being paid an amount considerably under the award wage and under the wage which his uncle had indicated to the Department he would be paying Mr Cuello if the Department approved the sponsorship.
The effect of condition 8107 is that if Mr Cuello wished to obtain further employment within Australia he would be obliged to write first to the Secretary of the Department and obtain the Secretary's permission. Mr Cuello did not do that. What he did was to go next door to another business and ask for employment there. The next door business known as Complete Metal Traders made an application for a business sponsorship of the applicant. The applicant had been to the Department office and told them that he had left the employment of his uncle and the reasons therefore. He says that he spoke to a gentleman known as "Nick" and that Nick had said to him words to the effect that he should obtain another business sponsor. Nick never said to the applicant that he should make an application to the Secretary for permission to change his employer.
On 28 August 2002 some nine months after Mr Cuello had ceased to be an employee of Oz-Stop petrol station he received a letter wrongly addressed to him at the Oz-Stop petrol station from the Department under section 116 of the Migration Act. That letter says in its third paragraph:
“The Department has decided that there is a ground for cancellation of your visa under section 116(1)(b) because you have not complied with the mandatory visa condition 8107. This condition attached to your visa specifies that the visa holder must not change employer or occupation without first obtaining permission in writing from the Department. Your visa was granted on the basis that you would be employed by your sponsor in the position for which you were nominated. As you have ceased your employment with your sponsor you are in breach of condition 8107.” (emphasis added)
It is certainly arguable that that paragraph was not entirely correct because ceasing employment may well not breach condition 8107. Condition 8107 relates to change of employment or occupation. However, there is no doubt in my mind that the force and effect of condition 8107 was put clearly to the applicant via that paragraph.
The applicant is not a fluent English speaker, and it has been put to me and to the Tribunal that he did not really understand the letter and that he acted on the advice of "Nick" to seek out a sponsor. But Mr Cuello was sensible enough to take the Department's letter to a firm of solicitors or a legally qualified migration agent who, on 10 September 2002, wrote to the Department advising it that their client had:
“... sought to transfer his application for an employment visa (Subclass 457) to Complete Metal Traders of 442A Punchbowl Road, Belmore.”
On 7 February 2003, the Department wrote to Mr Cuello care of his migration agent, advising him that he had failed to comply with a condition of his visa, specifically condition 8107:
“The holder must not change employer or occupation in Australia without the permission in writing of the Secretary.
The Department cancelled Mr Cuello's visa. Mr Cuello then sought a review of that decision from the Migration Review Tribunal and in the meantime changed his employer again on two occasions. Neither of those new employers made any effort to apply for sponsorship.
All these matters were noted by the Tribunal in its decision of
20 August 2003. The lengthy history of the applicant's stay in Australia was set out between CB146 and 148, and then the Tribunal deals with the powers under section 116(1) and the matters it should take into account when exercising its discretion, which all parties admit the Tribunal had. The Tribunal discussed these matters and then, at CB152 under the heading Findings, said:
“The Tribunal makes the following findings:
the applicant breached condition 8107 of his visa;
the applicant therefore breached section 116(1)(b) of the Act;the reasons for not cancelling do not outweigh the reasons for cancelling the visa.”
In order to understand the reasons for not cancelling, it is necessary to look at the preceding paragraphs. They seem to revolve around the fact that, particularly in paragraph 40 of the Tribunal's reasons, the Tribunal found that the applicant had changed employer without permission in writing of the Secretary, and that he had never thereafter sought such permission. He had breached condition 8107 by working for two different employers for a considerable time, neither of whom had made any application for sponsorship.
Mr Jones, who appears on behalf of the applicant, seeks to persuade me that the Tribunal fell into jurisdictional error because it made its decision to exercise its discretion based upon what was either a mistake of law or an irrelevant matter. That is, the matter considered by the Tribunal at paragraph 43 on CB150:
“The applicant stated at the hearing that after he left his employment with his sponsor, he went to the Department and was advised that he should seek another sponsoring business. This advice was not incorrect advice. There is no indication on the Department's file that the applicant was provided with incorrect advice by the Department concerning the conditions of his visa and the effect of condition 8107.”
Mr Jones argues that the Tribunal then proceeded to consider Mr Cuello's case on the basis of whether or not he had attempted to work for a sponsoring employer, rather than whether he could be forgiven for not making an application to the Secretary. He argues that the advice given by "Nick" in the Department and relayed in paragraph 43 of the Tribunal's decision was incorrect advice.
I am satisfied that the advice given by "Nick" was not incorrect; it may have been incomplete. But I do not think that this is a matter that should concern me. The reason is that Mr Cuello received a letter which clearly stated what condition 8107 was. I am sympathetic with Mr Jones' argument that his client may not have understood the letter. But he took it to a solicitor, and he was therefore in a position to have been made aware of the necessity of writing to the Department. If he has an excuse as to why he did not do that, then that is a matter which the Tribunal should consider as part of its discretionary task. The Tribunal did consider that. It discussed the matter at paragraph 47 and indicated that the failure by the lawyer or agent to look after the applicant's best interest does not void or lessen the applicant's legal obligations. It would appear to follow from those views that the Tribunal was not prepared to exercise its discretion generously towards Mr Cuello. That it is clearly an exercise of discretion which the Tribunal has and with which this court cannot interfere.
The Tribunal also took into account the subsequent conduct of the applicant. It did consider that the applicant had been wrong to work for other employers who were not sponsors. I do not believe that the Tribunal considered that working for employers who were not sponsors was a breach of condition. I believe that it took those matters into account when considering the seriousness of the applicant not asking permission from the Secretary. It is clear to me from at least two subsequent sentences in paragraphs 51 and 54 of the Tribunal's decision on CB152 that the Tribunal at all times had in its mind that the ground for cancelling the visa was that the applicant had not obtained permission to change employers. These are found in the last sentence of paragraph 51 and the last sentence of paragraph 54.
In all these circumstances, I am unable to see how the Tribunal fell into jurisdictional error in coming to the conclusions which it did. Those conclusions may have been harsh. It is clear from the general guidelines that an employee who walks out of his employment because he is badly treated and paid under the award should be given some leniency when considerations of cancelling his visa are made, but in the end, the decisions is one entirely for the Tribunal.
I dismiss the application. I order that the applicant pay the respondent's costs, which I assess in the sum of $3750.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM
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