Reddy & Ors v Minister for Immigration & Anor [2010] FMCA 469 (8 July 2010)

Last Updated: 8 July 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

REDDY & ORS v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 469

MIGRATION – Review of decision of MRT – whether applicant’s employees worked the requisite number of hours for the purposes of the Migration Regulations Div 1.4 of Schedule 7.

Migration Regulations 1994 (Cth)

Australian Gas Light Co v Valuer General (1940) 40 SR (NSW) 126 NABE v Minister for Immigration [2004] FCAFC 263; (2004) 219 ALR 27 Barkat v Minister for Immigration [2000] FCA 510

First Applicant:

DHANENDRA REDDY

Second Applicant:

INDRA WATI REDDY

Third Applicant:

VINEET REDDY

Fourth Applicant:

NALINI REDDY

Fifth Applicant:

NAGAMMA REDDY

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 446 of 2010

Judgment of:

Raphael FM

Hearing date:

30 June 2010

Date of Last Submission:

30 June 2010

Delivered at:

Sydney

Delivered on:

8 July 2010

REPRESENTATION

Solicitors for the Applicants:

Newman & Associates

Counsel for the Respondents:

Mr G Kennett

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

(1) Application dismissed.
(2) Applicants to pay the First Respondent’s costs assessed in the sum of $5,800.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 446 of 2010

DHANENDRA REDDY

First Applicant

INDRA WATI REDDY

Second Applicant

VINEET REDDY

Third Applicant

NALINI REDDY

Fourth Applicant

NAGAMMA REDDY

Fifth Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The issue in this matter is, by agreement, within a very short compass. Was the Tribunal right to find in its decision to refuse to grant the applicants Established Business (residence) (Class BH) visas on 12 September 2008 that the qualifying employees of the main applicant, a restaurant business owner, had together worked less than the requisite number of hours (allowing for 48 weeks of work of 30 hours duration for the equivalent of three full-time employees), contrary to the Migration Regulations 1994 (Cth) (the “Regulations”), clause 845.222(2)(a) Division 1.4 of Schedule 7 and Parts 2, 3 and 4.
2. The Tribunal was required to make the calculation referred to above because it was one of the constituents of the Business Skills Points Test which the applicant was required to “pass” by obtaining an aggregate point score of not less than 105 points. The applicant submitted to the Tribunal evidence that indicated he employed five relevant employees for the purpose of division 1.4: 7170 and that, in the period between 14 February 2007 and 14 February 2008, which was the period to be taken into consideration for the calculation, those persons worked a total of 4159 hours. The Tribunal appears to have accepted these employees as part-time employees working an equivalent number of hours which is permitted by the regulation. The Tribunal was required to make a finding of the number of hours that a full-time employee would have worked so that this could be compared with the number of hours that the applicant’s part-time employees worked. There is no definition of full-time employee in the Regulations but the Tribunal had regard to PAM3 which, the applicant accepts, has no statutory force but is a policy document that a Tribunal member is required to give due weight and consideration to in deciding these applications. The definition of “full-time” in PAM3 states relevantly:
   • “It is policy that ‘full-time’ be regarded as referring to employees who normally work the agreed or award hours for employees in that occupation. If agreed/award hours do not apply, it is policy that ‘full-time’ be regarded as meaning “not less than 30 hours a week”.
   • Pro-rata equivalent of the prescribed number of employees may be accepted for periods of less than a full fiscal year, particularly where business/es experience seasonal and/or market fluctuations. For example, two (full-time) workers employed for 6 months may be considered equivalent to one (full-time) worker employed for a full fiscal year. (Note that paid holidays may be counted as employment).”

The Tribunal gave this definition its consideration at [31] [CB 569]:

“Policy suggests that full-time employees would be expected to work not less than 30 hours a week and that the pro-rata equivalent of the prescribed number of employees may be accepted for periods of less than a full year. The Tribunal considers that this is a reasonable guideline to determining whether the aggregate number of hours worked by these 5 employees over the relevant period is equivalent to 3 full-time employees. This is also the approach taken by the applicant’s representative (in the submission received on 1 February 2010), although the representative’s calculations of the hours actually worked by the eligible employees differ slightly from the Tribunal’s calculations based on the wage records provided to the Department. The Tribunal has concluded that the approach set out in the policy guidelines is the most appropriate means of assessing whether or not the applicant meets the requirements of Division 1.4 and is therefore entitled to 60 points in the business skills points test.”

3. The Tribunal was entitled to pick another figure than 30 hours per week but its choice is not a matter of contention in this case. What is in contention is the constituent of that choice. The applicant’s representative submitted to the Tribunal that there should be added to the total hours worked the employee’s annual leave entitlements which amounted to 346.25 hours. If this was added to the hours actually worked, a total of 4501.25 hours was obtained. The representative claimed that this higher figure should be compared with the minimum number of hours that three full-time employees would be expected to work over 12 months. He calculated the figure by accepting the policy guideline of 30 hours a week and multiplying that by 48, representing 48 weeks work and excluding the notional four weeks annual leave entitlement. Under this calculation, the three full-time employees would work for 4320 hours and thus his client had complied with the requirements in the regulation. The Tribunal responded in its Findings and Reasons that if the applicant added the 346.25 hours to the figure of 4159 hours actually worked then the appropriate basis of comparison should have been calculated by taking the 30 hours worked by each notional full-time employee and multiplying it by 52 and not 48, which excluded the notional 4 weeks annual leave entitlement. This yielded a total of 4680 hours which was still more than the 4501.25 hours “worked” under the applicant’s calculations. On this basis the Tribunal concluded that the applicant was not entitled to any points under Division 1.4 of Schedule 7 and, therefore, failed to obtain the requisite number of points for the grant of a visa.
4. The applicant had one ground of application:
   • “The Tribunal found that at the time of decision the qualifying employees of the main applicant had together worked less than the requisite number of hours allowing for 48 weeks work of 30 hours duration for the equivalent of 3 employees contrary to s of the Migration Regulations. The calculation which was the Tribunal’s own, failed to make allowance for statutory holidays which, if they had been taken into account, would have reduced the minimum hours that three employees must have worked in order to qualify.”
5. It is correct that statutory holidays were not referred to in the Tribunal’s decision. However, they were not alluded to or put into the calculations by the applicant. PAM3 at 5.2 states:
   • “Note that paid holidays may be counted as employment.”

The applicant put forward to the Tribunal documentation [CB 255-278] which purported to be the wages records of its employees. The record had a number of columns, the first of which was the “week ending” date, the second was “hours worked per week”. There is no distinction in the documents between work actually being done and worked paid for as a holiday, either the four weeks annual leave or public holidays. According to the note in PAM3, it does not matter because if any of the hours paid for had not been worked by reason of holidays then they would still count in the calculation. In order to compare like with like on the evidence provided by the applicant, it would not be necessary to make any deduction from a calculation of 30 x 52 x 3 because no deduction was made in the wages record. To that extent, the Tribunal’s concession of calculating the full time hours on the basis of 30 x 48 x 3 was unnecessary.

6. The respondent submits that the finding as to the meaning of a word (in this case “full-time employment”) is a matter of fact; Australian Gas Light Co v Valuer General (1940) 40 SR (NSW) 126 at [137]. The Tribunal’s calculation of the number of hours which constituted full-time employment was a factual matter. A mistake or error upon a factual matter is an error within jurisdiction and not a jurisdictional error: NABE v Minister for Immigration [2004] FCAFC 263; (2004) 219 ALR 27.
7. The Tribunal proceeded in this matter on the basis of arguments put to it by the applicant. The concern about public holidays was not raised. If the Tribunal is entitled to come to its own conclusion as to the number of hours that constitutes full-time employment, which it is, then it cannot be held to have fallen into jurisdictional error when that calculation is impugned ex post facto the decision in the manner done here. The applicant argues that this failure to take statutory holidays into account requires the Court to come to views on matters that are uncertain such as the nature of the paid hours submitted by the applicant. He says that in this case the matter should be remitted because of the uncertainty and cites the decision of Whitlam J in Barkat v Minister for Immigration [2000] FCA 510 (“Barkat”). Barkat was a case where his Honour was deciding whether or not to decline to remit a matter where there was a clear jurisdictional error and the views which he expressed concerning doubt were expressed in that context. In this case, I am not satisfied that a jurisdictional error occurred.
8. The application is dismissed. The applicant must pay the first respondent’s costs which are assessed in the sum of $5,800.00.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 8 July 2010