Lavin Pinto (Migration)

[2019] AATA 4191

Lavin Pinto (Migration) [2019] AATA 4191 (30 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Maximiliano Lavin Pinto

CASE NUMBER:  1902574

HOME AFFAIRS REFERENCE(S):         BCC2018/2413774

MEMBER:Stavros Georgiadis

DATE:30 August 2019

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 30 August 2019 at 6:27pm

CATCHWORDS

MIGRATION – cancellation – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – ground for cancellation – non-commencement of employment within the prescribed period – approved leave without pay (LWOP) – ‘genuine effort’ – circumstances beyond applicant's control – mental and physical health condition – sought professional help – regular written contact with employer – commitment to endure long hours of work – underpayment of entitlements – decision under review set aside

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

CASES
1607420 (Migration) [2016] AATA 4152

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 February 2019 to cancel the applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa under s.137Q of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.137Q on the basis that the applicant did not commence employment under the regulations and did not make a genuine effort to commence that employment within the prescribed timeframe. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 14 August 2019 (by videoconference from Perth, Western Australia) to give evidence and present arguments. Before the Tribunal was also the applicant’s de facto partner, Ms Rebecca Wahlsten, who participated by video conference for support to the applicant.

4. The applicant 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. ‘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) [RSMS].

   Does the ground for cancellation exist (employment not commenced)

7. Under s.137Q(1) the Minister may cancel the visa if satisfied that the visa holder has not commenced the employment referred to in the relevant employer nomination within the period prescribed by the regulations and the person does not satisfy the Minister that they have made a genuine effort to commence that employment within that period. The relevant periods are specified in r.2.50AA - relevantly, within 2 years from the grant of the visa on 27 February 2018.

8. The background to this matter is set out below as confirmed generally in oral evidence presented by the applicant. 

9. The applicant commenced employment as a Mixed Crop Farmer (ANZSCO 121216) (Farm Manager) with the sponsoring employer, Woods Pastoral Pty Ltd on 30 May 2016. He lodged an application for a RSMS (subclass 187) visa on 24 June 2016 and was granted the visa on 27 Feb 2018.

10. The applicant took leave (paid annual leave, sick leave and leave without pay) according to entitlements under his employment contract with Woods Pastoral Pty Ltd. During his period of employment with that employer he alleges he suffered extreme distress and bullying in the workplace that led to a deterioration of his mental and physical health. The applicant submits that he sought to resolve this within the workplace initially seeking the assistance (unsuccessfully) of the Human Resource Manager, Woods Pastoral Pty Ltd, Matthew Harth.  The applicant also sought external professional treatment and advice on a number of occasions as follows:

    ·In May, 2017 he consulted Katherine Johnstone, accredited Mental Health Social Worker;

    ·On 21 July 2017 he sought professional advice from a Registered Migration Agent and Solicitor about his employment rights and visa conditions;

    ·In September 2017 he travelled (on approved leave) to be with his family in Chile and during that time sought professional assistance from Medical Practitioner, Surgeon Dr Isis Alvarado Marin, for work-related anxiety and depression.

11. The applicant was formally terminated from his employment with Woods Pastoral Pty Ltd on 27 June 2018. The applicant’s written submissions and evidence is that from the period of RSMS Subclass 187 visa grant to termination of his sponsored employment, he took leave (paid leave, sick leave and unpaid leave) according to the entitlements available to him under his employment contract.  The applicant maintains he kept in regular contact with his employer to enable his employer to be appraised of his progress and planned return to work in Australia.  There is evidence of correspondence and responses with the employer as late as 23 March 2018 and 11 April 2018 relevant to mutually planned return to work, health status and other relevant updates.

12. Due to his medical condition, the applicant has since commenced work with a different employer in the same regional of Augusta, WA being Ocean Grown Abalone Pty Ltd (the current employer). The applicant’s evidence and submissions support that the applicant’s health issues have stabilised and he now seeks to maintain his RSMS Subclass 187 visa in place to enable him to continue with his current work and living arrangements. He is supported by his partner, Ms Rebecca Wahlsten who corroborated the improvements she has observed in the applicant’s condition since discontinuing with Woods Pastoral Pty Ltd.

    LEGISLATION AND POLICY: PAM3: - Visa cancellation instructions - Regional sponsored employment visas  

13. Section 137Q of the Act provides that a regional sponsored employment visa may be cancelled if:

    • the Minister (or delegate) is satisfied that the visa holder has not commenced the employment referred to in the relevant employer nomination within the period prescribed in the Regulations and the visa holder does not satisfy the Minister (or delegate) that they have made a genuine effort to commence that employment within that period; or

    • the visa holder commenced the employment referred to in the relevant employer nomination (whether or not within the period prescribed by the Regulations) and the employment terminated within the period (the required employment period) of two years starting on the day the visa holder commenced that employment and the visa holder does not satisfy the Minister (or delegate) that they have made a genuine effort to be engaged in that employment for the required employment period.

14. The PAM3 guidelines provide that circumstances may arise where a visa holder is on leave without pay (LWOP) during the required two year employment period. Where an employer has approved LWOP, it is not generally regarded as a break in the continuity of service - effectively the employee is still employed but away on approved unpaid leave. Approved LWOP is also a standard condition in most awards. Therefore, the Tribunal accepts the submission that any LWOP that has been approved by the employer is not to be regarded as a termination of employment.

15. Previous periods of employment for the same employer, whilst the holder of another class or subclass of visa (such as a UC-457 visa), does not count towards the required period of employment. However, these may be relevant in assessing ‘genuine effort’.

    Genuine Effort

16. In assessing whether the visa holder has made a genuine effort to be engaged in that employment, the PAM 3 guidelines set out that consideration should be given to:

    • the visa holder’s reasons for, and/or circumstances leading to, the failure to commence work or to complete the two year employment period (such as family or personal considerations acting as a factor under these circumstances);  

    • the possibility that the visa holder, in collusion with the employer, did not commence work within the requisite period or resigned shortly after commencing work, as part of an arrangement to help the visa holder enter or remain in Australia;

    • in the case of termination, the period of the visa holder’s employment with the employer prior to termination of the employment; and

    • any other matter relevant to the commencement or termination of the employment.

17. Relevantly, a visa holder may be able to satisfy the criterion that they have made a genuine effort if the failure to commence or complete the two year employment period was because of a situation beyond the visa holder’s control. Examples include: the position was not filled or did not remain viable due to a serious downturn in business activity; financial loss, bankruptcy or closure of the business; and other grounds such as any breach of mutuality in the employment relationship by the employer or the employee.

18. The Tribunal is alert to the notion that PAM 3 is a guide only and is not to be elevated to the status of a legislative instrument. In this case, the Tribunal considers there is no reason not to apply the PAM 3 guidelines as policy relevant to these circumstances.

19. The applicant provided spontaneous and direct responses to questions asked on him at the hearing that were able to be corroborated by the documents and other evidence discussed before the Tribunal.  For this reason and from the manner the applicant provided his evidence and the context of his answers, the Tribunal considers the applicant to be a reliable witness of truth and therefore, places weight on his oral evidence discussed, where relevant, below.

20. The applicant’s evidence and submissions in summary are that he took leave from active work duties with the sponsor employer, Woods Pastoral Pty Ltd, to attend to his health, and during that time also returned to his home in Chile where he consulted his family doctor, Dr Isis Alvarado.  The attachments to the applicant’s written submissions and the Department’s movement details attest to this. He then returned to Australia.

21. The applicant submits that his return to Australia was with the intention of going back to active duties with Woods Pastoral Pty Ltd but that he suffered a partial paralysis at Sydney airport on the day of his arrival akin to an anxiety attack about returning to his duties with that employer. The applicant’s medical history and adverse response to his work with the sponsor employer is set out in the reports of accredited Mental Health Social Worker, Katherine Johnstone, dated 19 May 2017 and 28 December 2018 which the Tribunal has considered, and other medical reports. The Tribunal notes in particular, the medical report from the applicant’s family treating GP, Dr I A Marin (GP) of 5 August 2019 (certified translation) who diagnoses ‘reactive depression’ and ‘insomnia’ with ‘hypertensive crisis’ and opines: “My direct advice is to disassociate himself from his current employer.”

22. The Tribunal has considered the evidence before it discussed and is satisfied that the applicant notified the sponsoring employer of his ongoing health issues, sought counsel and advice from the employer’s Human Resources area regarding his circumstances and eventually began searching for alternative employment on medical grounds. The Tribunal accepts the applicant’s submission and evidence that his intention upon return to Australia on 12 April 2018 was to recommence employment with his sponsoring employer but that this was compromised by circumstances beyond his control (including his paralysis / health reaction at Sydney airport).  The tribunal accepts that he made a genuine effort on several fronts to comply with his visa condition of engaging and remaining in such employment for the material period.  This included the aforementioned and other regular written contact with his employer (including from overseas) to keep the employer abreast of developments.

23. The Tribunal accepts the events that the applicant was subsequently able to travel to Augusta, WA to attend a job interview with a different employer (in the Aquaculture industry) and was successful in becoming employed by Ocean Grown Abalone Operations Pty Ltd (OGA) in May 2018 as an abalone diver. Positive work references by that employer are also before the Tribunal in support of the regional work. The Tribunal accepts the applicant’s submissions of 14 August 2019 that this employment is commensurate with that of Aquaculture Farmer (ANZSCO 121111).

24. The Tribunal accepts that the applicant made considerable efforts over the period of his employment at Woods Pastoral Pty Ltd to address his deteriorating health and to persevere with the very demanding conditions of employment.  The Tribunal heard oral evidence, which it accepts, of the applicant working long hours in the order of 13 hours per day and working long continuous shifts of up to 35 consecutive days on one stretch without a day off.

25. The Tribunal accepts that this occurred in the context over a sustained period of more than two-and-a-half years that led to the applicant eventually being unable to return to work with the sponsoring employer after the 187 RSMS visa grant.  This is supported from the applicant’s medical records and reports, and the noted conversations with his employer, Tom Woods and the Human Resource Manager, Matthew Harth in the Departmental file.

26. The applicant’s representative referred the Tribunal to the case of 1607420 (Migration) [2016] AATA 4152 (25 July 2016) where the Tribunal in that matter understood ‘genuine effort’ to be demonstrated by a commitment to endure financially strained circumstances in order to be available for employment. The applicant submits (persuasively in the Tribunal’s view) that a similar assessment be applied in this matter in considering the challenges faced by the applicant receiving significantly low pay in return for the very long hours of work for the two years of employment with the sponsoring employer prior to the 187 RSMS visa grant.

27. The Tribunal accepts the applicant’s account of working consistently long hours after a few months of initial employment with Woods Pastoral Pty Ltd that included ’35 days in a row without a day off and for more than 13 hours a day, doing on average 180 hours of work per fortnight’ [from reference to the applicant’s statement contained in the s57 response submissions in the Department’s file.]  This is consistent with the applicant’s oral evidence provided at the hearing which the Tribunal accepts for the credibility reasons stated earlier.

28. The Tribunal accepts the applicant’s oral evidence that he was also required by his employer to stay seated in the tractor for many and extended hours at a time without a break, awaiting a change in wind direction so as to not allow herbicide spray he was applying to contaminate adjacent crop properties. There is documentary evidence to support the applicant’s sworn oral testimony that he was required to maintain such excessive hours of work outside of harvest time for a consistent duration of approximately two years. The evidence includes three fortnightly typical timesheets from the applicant’s period of employment with Woods Pastoral Pty Ltd in which he had a total of 5 days off in 41 days and worked an average of 10.65 hours per day [refer to Time Sheets Woods Pastoral].  At the hearing the applicant explained that he was not permitted to include ‘down time’ on his time-sheets - such as the aforementioned waiting in the tractor for a change in wind direction - and although the average of 10.65 hours is recorded on the timesheets, his work hours were more in line with 13 hours per day on average.  He added that at times he was required to work late into the evening and then recommence work early the next morning.

29. The applicant was engaged on 26 May 2016 by Woods Pastoral Pty Ltd on terms of employment that included an annual salary of $54,000 and hours of work as being ‘an average of 46 hours per week of which 38 hours will be normal time and the balance will be overtime’. This is conditioned by clause 2.1 which reads, ‘ Unless more generous provisions are provided in this letter or in the attached Schedule, the terms and conditions of your employment will be those set out in the National Employment Standards in the Fair Work Act 2009 and the Pastoral Award 2010 [refer to: Employment Contract-Woods Pastoral-LAVIN PINTO]. The typical payslip dated 19 April 2016 shows the applicant worked 28 hours of overtime in addition to normal time of 76 hours within a two week period for a flat rate of $22 per hour. There is no recorded additional loading for overtime, weekend work or shift/ night work. The persuasive submission is that if this 52 hour week were to be taken as an average over a year, and based on a salary of $54,000, then the applicant’s hourly rate would only amount to $19.97 [with reference to the payslip dated 19 April16].

30. The Tribunal has had regard to the written submissions and excerpt from the Pastoral Award 2010 showing that a Farm and Livestock Hand Level 8 classification (with keep) is entitled to a minimum of $20.99 per hour for a 38 hour week with overtime rates of up to $36.59 per hour. The Tribunal is persuaded that the applicant has not been remunerated in accordance with his employment entitlements and was also overworked by the sponsor employer to the point of exhaustion and illness - physical and mental.

31. Having considered the above evidence discussed, the Tribunal is satisfied that:

    ·The applicant had already commenced the employment referred to in the related employment nomination in the relevant period following the grant of the visa on 27 February 2018 as his employment was not terminated until 27 June 2018;

    ·The applicant made a genuine effort to commence that employment for the required employment period.

32. For these reasons, the Tribunal is not satisfied that the relevant ground for cancellation in s.137Q exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

33. 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.

    Stavros Georgiadis

    
    

    Member