Joshi (Migration)

[2018] AATA 1686

Joshi (Migration) [2018] AATA 1686 (3 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nishant Sunil Suchita Joshi

CASE NUMBER:  1716784

DIBP REFERENCE(S):  BCC2016/3102567

MEMBER:Kate Millar

DATE:3 May 2018

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 187 -  Regional Sponsored Migration Scheme visa.

Statement made on 03 May 2018 at 6:09pm

CATCHWORDS
Migration – Cancellation – Regional Employer Nomination (Permanent) visa – Subclass 187 Regional Sponsored Migration Scheme – Employment period – Employment expired before two years requirement – Letter of complaint – Genuine effort to resolve work dispute – Worked consistently in nominated occupation – Decision under review set aside

LEGISLATION
Migration Act 1958, s 137Q
Migration Regulations 1994, r 2.50AA

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Mr Joshi was granted a Subclass 187 visa to work as a chef with the Nagambie Rowing Club (the Club).  He says that after he refused to do a shift while on annual leave, his employment was terminated.  The Club says he was not prepared to return to work after his complaint about the Chef de Partie’s behaviour was found to be unsubstantiated and mediation was attempted.

2. Mr Joshi advised the (then) Department of Immigration and Border Protection that his employment had ceased. His visa was cancelled by a delegate of the Minister under s.137Q of the Migration Act 1958 (the Act) as Mr Joshi’s employment had been terminated within two years of commencing the employment, and delegate was not satisfied that Mr Joshi had made a genuine effort to be engaged in that employment for the required employment period. 

3. This is an application for review of a decision made by a delegate of the Minister for Immigration on 31 July 2017 to cancel the applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa under s.137Q. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. Mr Joshi appeared before the Tribunal on 20 March 2018 to give evidence and present arguments and was represented in relation to the review by his registered migration agent.  

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Under s.137Q the Minister has the power to cancel a ‘regional sponsored employment visa’ on specified grounds.

7. ‘Regional sponsored employment visa’ means a visa of a kind included in a class of visas that has the words ‘Employer Nomination’ in its title and is prescribed by the regulations for the purposes of the definition in s.137Q(3). The visas currently prescribed by r.2.50AA of the Migration Regulations 1994 are: Subclass 119 (Regional Sponsored Migration Scheme); Subclass 187 (Regional Sponsored Migration Scheme) and Subclass 857 (Regional Sponsored Migration Scheme).

8. Mr Joshi held a subclass 187 (Regional Sponsored Migration Scheme) visa. 

   Whether the ground of cancellation exists - employment terminated within 2 years

9. Under s.137Q(2) the Minister may cancel the visa if satisfied that:

   · the visa holder commenced the employment referred to in the relevant employer nomination (whether or not it was commenced within the period prescribed by r.2.50AA); and

   ·      the employment terminated within 2 years of the person commencing that employment; and

   ·     the person does not satisfy the Minister that they made a genuine effort to be engaged in that employment for the required 2 year period.

10. In this case Mr Joshi commenced the employment referred to in the relevant employer nomination.  He commenced work on 15 June 2015, prior to the visa being granted.  His visa was granted on 16 March 2016 and his employment ceased on 9 September 2016, less than two years from commencing the employment.

11. Mr Joshi provided a statutory declaration to the Department dated 4 July 2017.  In it he states that he was told to annual leave by the general manager.  On the day before he was due to return to work, the Chef de Partie Mr Desh requested he work for the sous chef.  He states the chef de partie had no authority to make him take this shift.  Mr Joshi says he told the chef de pratie that the general manager told him to take leave so he could not work.  Mr Joshi said the chef de partie became very aggressive and assertive towards him.  He said he had not had any issues with Mr Desh before this incident. 

12. In the incident that led to his employment being terminated, he said Mr Desh came into the living room of their accommodation and asked him to work that day.  Mr Joshi said no and the chef left, but returned 10 seconds later stating “you are working for me”.  Mr Joshi kept saying no because he was on annual leave and because he was not getting paid.  Mr Joshi said this continued for 20 minutes, and ended with the chef de partie stating “see you at 5pm for the shift.”  Mr Joshi did not attend.

13. Mr Joshi states he felt bullied and unfairly treated so he complained to management and requested not to be rostered on days Mr Desh was working.  Mr Joshi provided his letter of complaint to the General Manager this state he was on annual leave until 7 September 2017 and is not supposed to work while on annual leave.  He writes that the chef de parties asked him to work as the sous chef had an emergency.  He rejected the request and made it clear that as he is on annual leave he is not supposed to work.  He states after this the chef de parties was still aggressively forcing him to work and is taking things for granted.  He state “why head chef and sous-chef are not requesting me and that an agency chef would be another solution.  He goes on to state:

    I am pissed off at CDP Desh for his unlawful behaviour of aggressively forcing me to work on my annual leave.

    I request you not to put my shifts together with his days of work.  He is abusing the laws, so I won’t to work with him.  I hope I made this clear.

    Otherwise please relieve me, Nishant, S. Joshi, from my duties with 6 weeks notice. 

14. At hearing, he said his intention was for them to have a buffer for things to settle down and that he did not want to be on the roster with Mr Desh until it settled down.  This is not what this letter says.

15. The employer advised the Department that the reasons for the employment ceasing are given in Mr Joshi’s letter.  The employer states that after investigation he claims made in the letter were unsubstantiated and he was still not prepared to go back to work even after a mediation attempt with the other employee.  After the meeting Mr Joshi collected his personal items and left the property.

16. Mr Joshi described the working arrangements at the Club.  He said there was a head chef, a sous chef and two chefs de partie, of which he was one. They also had one second year apprentice, one first year apprentice and four kitchen hands.  The chefs were rostered five days in a week to a morning shift, and afternoon shift or a split shift.  Mr Joshi said a minimum of two chefs were required for each shift, but also later said this could be a chef and an apprentice. On being asked how realistic it was for him not to work on the same shift as Mr Desh, Mr Joshi said that it would not affect the business of the employer and gave as an example that they were without a sous chef for eight months.

17. I do not accept his was the case as in his letter to his employer, Mr Joshi said the alternative was to get an agency chef, he did not suggest having one or more of the apprentices to do the shift.  Mr Joshi said at most he was rostered on the same shift as the other chef three days per week.   

18. Mr Joshi said he had taken annual leave as required by the general manager.  He said the winter season was quiet and the Club required staff to take leave in June, July or August.  He had wanted to defer his leave and take two and a half months at the end of the two years, but was told this was not allowed.  While Mr Joshi thought the time he could take the leave was specified in his contract, what is specified is that the leave must be taken every year.

19. He says he returned to work for an evening shift on 8 September working with the sous chef and the first year apprentice.

20. On 9 September 2016 he attended work at 10am and was asked to go to meeting.  Those attending the meeting were the general manager, the head chef, Mr Desh and himself.  He was told the meeting had been called because of his letter.  He was asked to explain why he had written the letter and he said it was because Mr Desh was pushing him aggressively to work, which was not legal as he would not be paid.  The General Manager asked Mr Desh who has failed to attend work, and said the sous chef was not well or that there was an emergency.  Mr Joshi said it was not fair to ask him and they should have asked someone else.  According to Mr Joshi, the general manager said he was being provided with free accommodation and it was fair to ask him to work.  Mr Joshi replied it is not fair to be asked to work on an annual leave day because he would not be paid.  The general manager said it was completely fine that he worked.  Mr Joshi said he was surprised at what he was saying and that he wanted to be on a separate roster.  The general manager said he could not give him a separate kitchen to work in and he was asked to leave. 

21. Mr Joshi said he did not refuse to return to work, he was asked to leave after which he collected his possessions and left Nagambie to go to Melbourne.  He went to the Fair Work Commission who told him to go to the Fair Work Ombudsman, which he did but said he did not lodge any claim because he could not afford to lodge a claim.  I do not accept he would fail to lodge a claim if he thought he was entitled to do so. 

22. I consider Mr Joshi’s demands on returning to work to only work on chefs where Mr Desh was not working was not a reasonable demand in the context of the number of chefs that worked at the premises and the need to cover the shifts.  Mr Joshi did not engage in reasonable attempts to resolve this issue other than in a way that would meet his demand.  In his letter he said he would not work with Mr Desh and stating he would resign if this did not occur. 

23. As a result. I am not satisfied that Mr Joshi made a genuine effort to be engaged for the two year period.

24. As Mr Joshi’s employment ceased before the two years had expired, Mr Joshi must satisfy me that  he made a genuine effort to be engaged in the employment.  The test is not whether he was unfairly dismissed, and the legislation requires a focus on the genuine effort of Mr Joshi in remaining in the employment.

25. His letter of complaint does not satisfy me he has made a genuine effort to be engaged in the employment  as  he effectively issues an ultimatum he would know the employer would find it difficult to meet,  being that he is not on the same shift as the other chef de parties.  In a small organisation I do not consider this reasonable, and he reports his employer as saying he could not provide separate kitchens. 

26. Mr Joshi submits that his employer did not make a genuine effort to mediate, or end his employment lawfully, or provide information regarding dismissal as he was required to do however I have not heard from his employer and would not be satisfied this was the case as Mr Joshi said he sought advice from the Fair Work Ombudsman but did not lodge a complaint.  In making this demand I am not satisfied he has made a genuine effort to be engaged in the employment for two years. 

27. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.137Q exists. As the power to cancel under s.137Q is discretionary, the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

28. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘Regional sponsored employment visa cancellation’.

29. He came to South Australia on 16 September 2016 and after approximately one month started working for The Harvest Kitchen.  He left after one month and worked for the Novotel in the Barossa Valley.  After 10 months he returned to Adelaide and is currently working for Foodland Pasadena and Mount Lofty House as a commis chef. 

30. Mr Joshi considers his visa should not be cancelled because he wants to do something in Agriculture and before that wants to go into the defence force.  As a person must be an Australian citizen to join the defence force, this is somewhat aspirational at this stage.  Mr Joshi said South Australia needs skilled workers and his two current employers will be affected if he leaves Australia.   

31. After the hearing the Tribunal was advised Mr Joshi was temporarily away for work at Port Hedland, and further information on his current work was sought.  The Tribunal was advised that Mr Joshi’s work hours at the supermarket were dramatically reduced and the hotel group was quieter for winter so he found employment at a hotel in Port Hedland.  He provided a letter and employment contract for employment as a commis chef at the hotel as well as payslips.    Port Hedland is also regional Australia (IMMI 18/037). 

32. Mr Joshi also said that now the visa classes have changed he wold not be eligible to apply for the equivalent of a RSMS visa as he would need three years’ experience and he currently only has two years of experience.  He said he was willing to go back to the Club, but conceded that they were not willing to have him return.

33. In looking at matters of government policy, the Tribunal provided Mr Joshi to comment on each of these in turn.   

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

34. The purpose of the visa is to obtain skilled workers to work in regional Australia.  Mr Joshi worked for the sponsor for a period of nine months before the visa was approved and worked for the sponsor for a total of over 14 months.   

35. Mr Joshi was in Australia to work as a chef, and he has continued to work as a chef in regional Australia.  As a result, his continued presence in Australia has been consistent with the purpose of the visa. 

36. Mr Joshi has been in Australia for over eight years and sees a good future for himself here.  He said if he has to go back he will have to start from scratch.

    The extent of compliance with visa conditions

37. Mr Joshi said he has complied with his visa conditions, and there is nothing before me to indicate otherwise.  He provided evidence of his application for a bridging visa that allowed him to work from 2 August 2017. 

    The degree of hardship that may be caused  

38. Mr Joshi said he has financial obligations to his family and he has spent a lot of time to build himself to this point.  He said he does not possess skills other than cooking, and if he returns to India he will start from nothing. 

39. His father is a retired engineer and his mother works for the railways but will be retiring.  While she will receive a little but if retirement money it will not be sufficient for them to live on and they will need his support.  As the eldest son he is responsible for his parents and his sister.  His sister studies in the United States and he pays interest of $500 per month on the loan for her education. 

40. While I accept he will suffer financial hardship and this will affect his family, he had skills which he could use on his return to India to assist in supporting his family. 

    The circumstances in which ground of cancellation arose

41. Mr Joshi said the circumstances where his employment was terminated were beyond his control and that he did what he was asked to do.  And he did not work on a day he was on annual leave because that was not legal.  I consider his approach to resolving the issues he had in the workplace does not involve a genuine attempt to resolve the issues but instead involved him issuing an ultimatum which the employer was unable to meet.

42. Mr Joshi submits his employment was terminated in breach of the Fair Work Act and did not meet the requirements of the legislation. There is insufficient information before me to conclude this is the case. However, it is not disputed that he was asked to work while on annual leave.

    The past and present conduct of the visa holder towards the department

43. Mr Joshi himself advised the Department that his employment was terminated.  He has worked in Adelaide and the Barossa Valley which are regional areas of Australia for the purposes of the migration legislation.  He has since obtained work in Port Hedland, which is also regional Australia.  There is nothing before me to indicate he has not fully co-operated with the Department.

    Whether there are persons in Australia whose visas may be cancelled under s.137T

44. There are no other persons who would have a visa cancelled.

    Whether there are mandatory legal consequences if the visa is cancelled

45. If the visa is cancelled, there are limited types of visas Mr Joshi can apply for form within Australia.  He could not apply for a further RSMS visa form within Australia. 

    Whether any international obligations would be breached as a result of the cancellation

46. Mr Joshi could not identify any reason he could not return to India, other than because of his responsibility to financially support his family. 

    CONCLUSION

47. Mr Joshi was employed at by his sponsor for some time, albeit not while holding the visa that was cancelled.  He advised the Department when he ceased employment and has continued to work in his nominated occupation in a regional area from the date his employment was terminated, and the Tribunal places considerable weight on Mr Joshi continuing to be in Australia for the purpose for which the visa was granted.   It was not disputed by his employer that he was asked to work when he was on annual leave. 

48. In these circumstances, the Tribunal has concluded that the visa should not be cancelled.

    DECISION

49. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 187 -  Regional Sponsored Migration Scheme visa.

    Kate Millar

    
    

    Member