Former High Commissioner Navdeep Suri

All Indian Australians would remember the former Indian High Commissioner to Australia Navdeep Suri, with good, and some with fond memories.

But now, his image, at least in Australia has been tarnished by a decision of the Federal Court of Australia, delivered on November 3, wherein he has been found to be guilty of committing breached of the Australian Fair Work Act. The court has ordered Navdeep Suri to pay Seema Shergill $189,703.71 ($136,276.62, plus a further $53,427.09 owing in interest on that amount since 2016).

Seema Shergill, an Indian who worked at Mr. Suri’s official residence from 17 April 2015 to 26 May 2016, sued Mr. Suri for underpayment of wage for the 17-hours a day work for over a year.

It was Seema’s evidence that she was forced to work long hours, her passport had been taken away from her and she was threatened ‘to be sent back to India’, if she did not follow orders.

Seema ran away from her work on 26 May, 2016.

As per Seema’s evidence, she worked as a domestic worker, which included cooking, cleaning, gardening and doing the laundry, 17-hours a day, without any holiday; she was not allowed to leave the house except to let the dog out onto an open grassy area behind the house.

Justice Raper found Seema’s employment conditions “bore no resemblance to what one would expect under Australian law”.

The judge also said that the former High Commissioner Navdeep Suri had committed “significant breaches” of employment law. 

Seema’s evidence remains un-challenged because, neither Mr. Suri nor the Indian government took part in the proceeding.

Indian government reacts
The Indian government has reacted strongly to the decision of the Federal Court, saying the court, under the Vienna Conventions on Diplomatic Relations had no locus standi to entertain Seema Shergill’s complaint.

The Indian government has labeled the allegations made by Seema in her complaint against Navdeep Suri, as ”false” and motivated by her intent to permanently stay in Australia.

It has come to light Seema’s time in Australia had finished and she was due to return to India on 27 May, 2016; she fled a day before on 26 May.

“A service staff of the High Commission of India in Canberra willfully deserted her post in May 2016, a day before her scheduled return to India” Arindam Bagchi, the spokesperson for India’s Ministry of External Affairs said in a media briefing.

“She was holding an Official Passport and Australian Diplomatic Visa. Since then, we have repeatedly requested Australian authorities to locate and repatriate her to India.

“We have learnt that she has made allegations against the then High Commissioner, and an ex-parte judgement has now been issued by an Australian court.

“Let me reiterate that we reject any locus standi of Australian authorities to adjudicate on matters concerning such India-based service staff of the High Commission. Any grievance that she may have has to be suitably redressed only in India,” Mr. Bagchi added.

The Indian government is taking up the matter with Australian Authorities, Mr. Bagchi added.

Pakistan connection
Lawyer’s representing Seema Shergill cited to the court a 2021 decision of the same court (different judge) in Mahmood v Chohan [2021] FCA 973.

In that case, Shahid Mahmood, a domestic worker had sued a former Pakistani High Commissioner to Australia Naela Chohan.

As in the case of Seema, Shahid Mahmood is also now permanently settled in Australia and claimed while working for the former Pakistani High Commissioner, was made to do:

1. cooking, cleaning and other domestic services, thus engaging the provisions of the Australian Fair Work Award;

2. excessive hours with minimal breaks;

3. work without any annual leave; and

4. the former High Commissioner paid wages at a level less than the Australian Fair Work Award minimum.

And there is another uncanny similarity in the two cases. Both Seema Shergill and Shahid Mahmood stopped working on the same day – 26 May 2016.

Both cases also quoted a case from the UK – Reyes v Al-Malki [2017] UKSC 61.

In that case a Filipino woman (Reyes) was employed as a domestic worker for a Saudi diplomat in London. Her passport was confiscated, she was prevented from leaving the house or communicating with others, and was not paid wages.

Reyes brought an action against the diplomat, and alleged that he had failed to pay her the national minimum wage in the United Kingdom. By the time the matter was heard by the UKSC, the diplomat was no longer “in post” and no longer resided in the United Kingdom.

The decision in Reyes held that, due to the diplomat’s departure from his post, he was not entitled to any ongoing general immunity under art 31(1) of the Convention, and only had residual immunity under art 39(2) in respect of “acts performed…in the exercise of his functions as a member of the mission”.

It was held that the former diplomat’s employment of a domestic worker did not qualify as an act performed in the exercise of his functions as a member of the mission pursuant to art 39(2) of the Convention. As such, the former diplomat was not entitled to residual immunity under art 39(2). The fact that the employment occurred during the time the former diplomat was serving in his diplomatic posting in the United Kingdom did not alter this conclusion.

Shergill v Singh – Imperfect decision
The case against Navdeep Suri while peripherally looks similar to both Reyes v Al-Malki [2017] UKSC 61 and Mahmood v Chohan [2021] FCA 973, it is quite different.

And what makes the decision imperfect in my view, is the fact that it cannot be directly, wholly applied to the present case for the following reasons:

1. In both Reyes and Mahmood, the worker was employed as private, domestic worker.

2. Neither Shahid Mahmood nor Reyes had diplomatic visas like Seem Shergill.

– Reyes travelled to the UK under Tier 5 visa (Creative Worker); and

– Shahid Mahmood entered Australia on Subclass 403 Temporary Work (International Relations) Visa.

– Seema Shergill, recognized as a diplomat by the Department of Foreign Affairs and Trade (DFAT Australia) arrived in Australia under Diplomatic Visa Subclass 995P.

3. By their visa definition, both Reyes and Shahid Mahmood were allowed to enter their host country (UK and Australia) as “worker”, thus rightly allowed to enter to work for the diplomats in their individual, private capacity.

4. In contrast, by her visa definition, Seema Shergill was recognized by the DFAT as a diplomat to work for the Indian mission. Her official role was described as “Service Staff of High Commission of India” where her primary functions will be “Reception and Entertainment of Guests”. What arrangements were made internally for Seema Shergill by the Ministry of External Affairs (through Navdeep Suri), should be up to the sending country, India.

5. Seema’s agreement to work for the MEA was struck not in Australia but in India (or as alleged in Egypt and formalized in India) before the MEA would have sent the paperwork for DFAT’s recognition and accreditation of Seema Shergill as a diplomat.

6. Seema, in her own evidence to the court stated that Navdeep Suri’s official residence was two-storey eight bedrooms, 5 bathrooms mansion. India would have organized such a huge residence for its diplomat to be able to host guests and other diplomats by its representatives while posted in Australia requiring both reception and entertainment.

7. Running such a place overseas (in this case Canberra) by the Indian government would require certain service staff posting.

8. Seema claimed her account in India was set up by Navdeep Suri, before she arrived in Australia. It does not conclusively prove:

– any wrong-doing by Navdeep Suri;

– that the account was not set up for the MEA work; and

– that the agreement to work in Australia was made in their personal capacities as individuals.

– Seema only gave evidence in the court that her wages were paid into her Indian account. There is no evidence to suggest that the money was not sanctioned by or did not come from the MEA.

    The fact that the DFAT issued a diplomatic visa for Seema undermines her allegations of abuse and underpayment being entertained by Australian courts.

    Clearly, the decision suffers from all the imperfections of running a one-horse race.

    To use the logic applied in the two cases (Reyes v Al-Malki [2017] UKSC 61 and Mahmood v Chohan [2021] FCA 973) in Seema’s case militates against the very way the DFAT had defined Seema Shergill’s presence in Australia, granting her the Subclass 995 visa.  

    In doing that, the DFAT has accepted India’s domestic arrangements worked out at the MEA headquarters in Delhi for all its staff requirements in Canberra whether it be the Office or the Official residence of the High Commissioner of India in Canberra.

    And the very fact that Pakistani Shahid Mahmood and Seema Shergill, both ended their employment with their respective missions on the same day (26 May 2016), both applying for and getting their PR / Citizenship in Australia and both making similar claims of abuse and underpayment and breaches of the Fair Work Act against retired / former diplomats of their country of origin, seems to be too much for it to be a purely accidental coincidence.

    If at all, Seema Shergill would have a case against the government of India. For that, she will have to prove the abuse and underpayment of wages committed by Navdeep Suri, were in fact committed, and in his personal capacity fully aided and abetted by the MEA of the government of India.

    She will not only have to prove the MEA staff colluded with Navdeep Suri for his alleged Australian breaches of the Fair Work Act, she will also have to prove, how her work conditions in Australia were different to that of her work in Egypt where she worked prior to accepting her position in Australia.

    The judgement does not address any of this in detail other than Navdeep Suri not taking part in the proceeding despite being sent regular emails and believing Seema Shergill’s story.

    It remains to be seen if Seema Shergill will go on to enforce the judgement orders to recover the monies ordered to be paid to her.

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