Starratt (Migration)

[2019] AATA 2469

Starratt (Migration) [2019] AATA 2469 (4 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Alison Virginia Starratt

CASE NUMBER:  1905618

HOME AFFAIRS REFERENCE(S):           BCC2018/1889411

MEMBER:Bridget Cullen

DATE:4 July 2019

PLACE OF DECISION:  Brisbane

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 04 July 2019 at 4:31pm

CATCHWORDS
MIGRATION – cancellation – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – ground for cancellation – employment terminated within 2 years – genuine effort to be engaged in that employment – Fitness Centre Manager – paid at significantly lesser rate – unrealistic sales targets – unreasonable interpretation of employment contract – challenging work environment – decision under review set aside

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

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 5 March 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 delegate considered the Applicant was not engaged in the employment referred to in the related employment nomination for two years, and that the delegate was not satisfied that the Applicant made genuine effort to be engaged in that employment for the two year period. 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 2 July 2019 to give evidence and present arguments.

4. 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

5. 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).

   Does the ground for cancellation exist?

6. 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.

7. The timeline of events leading to the cancellation is as follows.

10 November 2017	The Applicant was nominated for the position of Fitness Centre Manager (ANZSCO – 149112) at Cordrich Pty Ltd (trading as Heart & Soul Health Club).
11 November 2017	8.     The Applicant commences work in the role, whilst waiting for the outcome of the visa application. The Applicant continues to be paid at “Level 4” which is significantly less than the rate proposed in the contract of employment, which only takes effect when the visa is granted.
6 December 2017	9.     The Applicant is counselled in relation to cleaning of the Club.
19 March 2018	The Applicant was granted a Subclass 187 – Regional Sponsored Migration Scheme visa, in association with her nomination as a Fitness Centre Manager. The contract of employment requires that the Applicant now be paid $55,000 per annum, plus superannuation.
20 March 2018	The Applicant is counselled in relation to cleaning of the Club.
29 March 2018	The Applicant was demoted to the role of Sales/Receptionist, at a pay rate of $20.21 per hour.
18 April 2018	The Applicant in demoted role until this date, when she is terminated with immediate effect.
19 April 2019	The Applicant complains to the Fair Work Ombudsman, but is unable to make a complaint for unfair dismissal, as Heart & Soul Health Club is a small business, and the Ombudsman considered that she had not completed the minimum employment period of one year.

1. The period between the grant of the Applicant’s visa, and the termination of her employment, was only one month. To be clear, the Applicant only worked with the approved nomination for a one-month period, well within the two year period from the granting of the visa. As the Applicant’s employment was terminated within the period of two years starting on the day commenced the employment, the Tribunal must consider whether the Applicant made a genuine effort to be engaged in that employment for the two years.

2. The Department issued a Notice to Consider Cancellation on 24 January 2019. The Applicant, in her responses on 20 February 2019 and 26 February 2019, submitted:

   -She never attempted to displease the Managing Director (employer), and feared being subjected to verbal abuse and threatening of employment termination.

   -She continually engaged in verbal discussions with their employer in the efforts of obtaining constructive feedback in relation to their work performance.

   -She submitted that despite being demoted, she remained committed to being employed by accepting the new role, as she was concerned about not having employment given her visa status.

   -Following her demotion, the Applicant found it difficult to maintain and achieve sales targets as she was only working six hours a week. She was not able to genuinely reobtain her managerial position.

   -Before her termination, she discovered that her employer advertised a Sales/Receptionist role online. The Applicant contended that her employer was not willing to give them a genuine chance to retain her managerial position, as they had an intention to replace her.

   -The Applicant submitted the employment was terminated outside the terms of her employment contract, and that the termination was beyond her control. As a result of termination, the Applicant required mental health support and counselling.

3. The Department delegate contacted the Applicant’s nominating employer to enquire about the circumstances surrounding her demotion and termination on 28 February 2019. The nominating employer responded on 1 March 2019.

4. The nominating employer’s response was not put to the Applicant, and the Delegate proceeded with cancellation on the basis that the delegate did not believe the Applicant made a genuine effort to be employed by the relevant nominator for a minimum of two years.

5. The Tribunal has had the benefit of further information being provided by the Applicant and her representative, and the Applicant has since had the opportunity to respond to the submissions made to the Department by the former employer on 1 March 2019.

6. The Tribunal is satisfied that the Applicant commenced the Fitness Centre Manager role. Although the Applicant signed her Contract of Employment on 9 October 2017, the starting date in the contract is “subject to suitable visa approval”.  Consequentially, as indicated in the chart above, the Applicant continued to be paid at a significantly lesser “Level 4” rate of pay for the period from 10 November 2017.  

7. Although the Applicant was to be paid $55,000.00 from the time her visa was granted on 19 March 2018, she has given evidence that she was never paid in accordance with this contractual obligation.  When she was terminated, she was paid her accrued leave entitlements in accordance with the demoted rate of $20.21 per hour.  The Tribunal accepts the evidence of the Applicant that she was never paid in accordance with the contract of employment.

8. The Applicant has filed a detailed statement outlining the circumstances of her employment, particularly in relation to the concerns that led to her demotion.  The Applicant was counselled twice in relation to cleaning of the Club, and says that she was in constant discussion in relation to her sales targets. 

9. The Applicant explains that, just prior to her acceptance of the contract of employment, there were cleaners who were paid to do the cleaning of the Club.  The cleaners were dismissed, and she was expected to take on this work, in addition to her duties as a Fitness Centre Manager.  The Applicant assumed that cleaners would again be engaged, but discovered otherwise.  Despite this, she made efforts to keep the Club clean. The Tribunal accepts her evidence.  The Applicant is articulate, and was able to provide meaningful detail about her employment.

10. Although the Applicant’s contract includes “Ensuring everything is clean and in working order, including gym floor being tidy and easy for members to use (weights in their places, etc.)”, it strikes the Tribunal as patently unreasonable to expect the Fitness Centre Manager to actually be personally responsible for the cleaning.  “Ensuring” the Club is clean, in the Tribunal’s view, would reasonably mean supervising others doing the work. 

11. The Tribunal further considers that the Applicant’s sales targets were unrealistic, particularly in relation to the multitude of other duties imposed on her, particularly in relation to the cleaning.  The Applicant, on her figures, largely met her sales targets, despite the challenges.  The Tribunal is perplexed at the nominating employer’s interpretation of the contract of employment. On one hand, the employer sought to require the Applicant to comply with all of the obligations, yet in relation to pay, sought to rely on the contractual provision that the agreement only took effect after the granting of the visa.  There is at least an argument that the Applicant had no contractual obligation to make any particular sales, as the contract was not in effect whilst she was working as a Level 4 employee.

12. The Tribunal also considers that, in a small community like that in which this Health Club is situated, the Applicant faced an uphill challenge attracting new members to her particular workplace.  The Applicant has lodged what can only be described as an avalanche of Statutory Declaration material from former gym members, former employees, and community members aware of what the Tribunal will generically refer to as “gym culture”.

13. That material, from persons of all walks of life, including from many people with significant community standing, paints a picture of a hostile gym culture.  There are allegations of abuse and intimidation levelled against the Managing Director of varying levels of severity.  These persons with to remain anonymous, as they fear reprisal from the Managing Director of the Club, in their small community. The material overwhelmingly supports a finding by the Tribunal that the Applicant did everything she could to maintain her employment in challenging circumstances.

14. 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

15. 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.

    Bridget Cullen

    
    

    Member