Muhammad v Minister for Immigration

[2016] FCCA 414

FEDERAL CIRCUIT COURT OF AUSTRALIA

MUHAMMAD & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 414

Catchwords:
MIGRATION – Judicial review – refusal of business skills visa – whether ownership interest in the business concerned – applicant’s shareholders in a company owning units in a unit trust carrying on a business – whether a shareholder in a company that carries on the business – whether error in application of Departmental Policy Advice Manual – whether decision unreasonable.

WORDS AND PHRASES – “ownership interest”.

Legislation:

Migration Act 1958 (Cth), ss.65, 134(10), 476

Migration Regulations 1994 (Cth), regs.1.03, 1.11, 1.11A, Sch.2, cll.892.211, 892.221
Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 33 IR 263; (1990) 93 ALR 1
Campbell & Ors v Minister for Immigration & Citizenship & Anor [2011] FCA 940; (2011) 221 FCR 255; (2011) 122 ALD 560
Minister for Immigration & Citizenship v Hart [2009] FCAFC 112; (2009) 179 FCR 212; (2009) 111 ALD 502
Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Mushtaq v Minister for Immigration & Anor [2013] FCCA 198
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
SZELX v Minister for Immigration & Anor [2007] FMCA 209
WZATH v Minister for Immigration & Anor [2014] FCCA 612

First Applicant: BOYKE ABDULLAH MUHAMMAD

Second Applicant: ANGELINA LEE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 401 of 2014

Judgment of: Judge Antoni Lucev

Hearing date: 22 May 2015

Date of Last Submission: 22 May 2015

Delivered at: Perth

Delivered on: 3 March 2016

REPRESENTATION

For the Applicants: The applicants appeared in person

Counsel for the First Respondent: Mr B Dube

For the Second Respondent: Submitting appearance, save as to costs

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the second respondent be amended to read “Administrative Appeals Tribunal”.

2. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 401 of 2014

BOYKE ABDULLAH MUHAMMAD

First Applicant

ANGELINA LEE

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The first applicant, Boyke Abdullah Muhammad, and the second applicant, Angelina Lee (“Mr Muhammad” and “Ms Lee” respectively, collectively “the Applicants”), have filed an application seeking judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”), of a decision of the then Migration Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively). The Tribunal Decision, made on 17 November 2014, is at Court Book (“CB”) 839-850. The Tribunal Decision affirmed a decision made by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the Minister for Immigration & Border Protection (“Minister”) to refuse the Applicants a Business Skills (Residence) (Class DF) Subclass 892 visa (“Business Skills Visa”) under the Migration Act.

2. The Minister contends that the Judicial Review Application does not establish any jurisdictional error in the Tribunal Decision: see Minister’s Response at [1].

Tribunal Decision

Issue

1. At the outset the Tribunal briefly identified the issue to be determined, namely, “whether the interest which the first-named applicant [Mr Muhammad] has in two main businesses, falls within the definition of ‘ownership interest’ in the Migration Act and Regulations”: CB 840 at [1].

Delegate’s Decision

1. The Tribunal set out the nature of the Business Skills Visa application and summarised the Delegate’s Decision made on 2 December 2010: see CB 608-616, as follows:

   2.The visa applicants applied for the Business Skills (Residence) (Class DF) Subclass 892 visas on 30 November 2009. On 2 December 2010 the delegate refused to grant the visas. The delegate indicated the two main businesses [nominated in the visa application] as Zushi Bento (AUST) Pty Ltd [Zushi Bento] as trustee for the Zushi Bento Floreat Unit Trust and Shiki Ventures Pty Ltd [Shiki Ventures] as trustee for The Shiki Group Unit Trust. The delegate reached the conclusion that she could not be satisfied that the applicant [Mr Muhammad] has, or has had, a shareholding in Zushi Bento and concluded that he does not have, and has not had, a shareholding in Shiki Ventures. Therefore the delegate was not satisfied that Mr Muhammad had an “ownership interest” as required by cl.892.211 and for the purpose of the definition of “main business” in Reg.1.11 of the Regulations. Given that conclusion the delegate did not proceed to consider the other criteria for the visas.

   CB 840 at [2].

Tribunal hearing

1. In relation to hearings by the Tribunal, the Tribunal observed as follows:

   3. There were two hearings, one held via conference telephone on 18 July 2013 and the second held in person, in Perth, on 29 October 2014. On the first occasion the first-named applicant attended. The Tribunal also heard evidence from an accountant, Mr David Barnes. On the second occasion the first and second named applicants attended and the Tribunal heard submissions from Mr Denning Chong, who appeared as counsel. Mr David Barnes was in attendance but the Tribunal did not hear further evidence from him on the second occasion.

   4. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing on each occasion.

   CB 840 at [3]-[4].

Relevant law

1. The Tribunal also set out the relevant law by reference to cll.892.211 and 892.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”), regs.1.03, 1.11 and 1.11A of the Migration Regulations and s.134(10) of the Migration Act as follows:

   9. The criteria for a Subclass 892 visa are set out in Part 892 of Schedule 2 to the Regulations. At least one member of the family unit must satisfy the primary criteria.

   10. Cl.892.211 of Schedule 2 to the Regulations is one of the criteria which must be satisfied at the time of the visa application. The portion of the criterion relevant to this application is as follows:

   (1) “The applicant has had, and continues to have, an ownership interest in 1 or more actively operating main businesses in Australia for at least 2 years immediately before the application is made”.

   11. Clause 892.221 requires, in part, that the applicant continues to satisfy cl.892.211, at the time of decision.

   12. Regulation 1.11 defines "main business" as follows:

   (1) “For the purposes of these Regulations and subject to subregulation (2), a business is a main business in relation to an applicant for a visa if:

   a. the applicant has, or has had, an ownership interest in the business; and

   b. the applicant maintains, or has maintained, direct and continuous involvement in management of the business from day to day and in making decisions affecting the overall direction and performance of the business; and

   c. the value of the applicant's ownership interest, or the total value of the ownership interests of the applicant and the applicant's spouse or defacto partner, in the business is or was at least 10% of the total value of the business; and

   d. the business is a qualifying business.”

   13. Regulation1.11A effectively indicates that “ownership interest” includes “beneficial interest” only if it is evidenced in accordance with the regulation.

   14. Regulation 1.03 also provides that “ownership interest” has the meaning given to it in section 134(10) of the Migration Act, … namely:

   “in relation to a business, means an interest in the business as:

   (a) a shareholder in a company that carries on the business; or

   (b) a partner in a partnership that carries on the business; or

   (c) the sole proprietor of the business;

   including such an interest held indirectly through one or more interposed companies, partnerships or trusts.”

   CB 841-842 at [9]-[14].

2. The Court also notes that reg.1.11A of the Migration Regulations provides as follows:

   (1)  Subject to subregulation (4), for Parts 132, 188, 888, 890, 891, 892 and 893 of Schedule 2, ownership by an applicant, or the applicant's spouse or de facto partner, of an asset, an eligible investment or an ownership interest, includes beneficial ownership only if the beneficial ownership is evidenced in accordance with subregulation (2).

   (2)  To evidence beneficial ownership of an asset, eligible investment or ownership interest, the applicant must show to the Minister:

   (a)  a trust instrument; or

   (b)  a contract; or

   (c)  any other document capable of being used to enforce the rights of the applicant, or the applicant's spouse or de facto partner, as the case requires, in relation to the asset, eligible investment or ownership interest;

   stamped or registered by an appropriate authority under the law of the jurisdiction where the asset, eligible investment or ownership interest is located.

   (3)  A document shown under subregulation (2) does not evidence beneficial ownership, for subregulation (1), for any period earlier than the date of registration or stamping by the appropriate authority.

   (4)  Beneficial ownership is not required to be evidenced in accordance with subregulation (2) if the person who has legal ownership of the asset, eligible investment or ownership interest in relation to which the applicant, or the applicant's spouse or de facto partner, has beneficial ownership:

   (a)  is a dependent child of the applicant; and

   (b)  made a combined application with the applicant; and

   (c)  has not reached the age at which, in the jurisdiction where the asset, eligible investment or ownership interest is located, he or she can claim the benefits of ownership of the asset, eligible investment or ownership interest.

Issue and relevant period

1. The Tribunal set out the nature of the issue and the relevant period as follows:

   17. The issue in the present case is a legal one. There is no real controversy about the facts. Essentially the applicants asserted the relevant ownership interest in the two main businesses by virtue of their company, SQ Jacks Pty Ltd (in which the first and second named applicants held 100% shareholding), holding units in units trusts related to those two main businesses.

   18. The Tribunal must consider this issue as at the date of the visa application on 30 November 2009. The relevant two year period is therefore a period from 30 November 2007 to 29 November 2009 [“the relevant period”].

   CB 842 at [17]-[18].

Entity or person carrying on the businesses

1. The Tribunal referred to various documents submitted with the Business Skills Visa application which had to be considered in order to determine the entity or person carrying on the business, but from which the Tribunal had indicated during the first Tribunal hearing that the different documentation made it unclear as to which entity was carrying on the businesses. The documentation included taxation, local government, business names and financial documentation: see CB 843-844 at [23]-[25].

Applicants’ submissions to the Tribunal

1. The Tribunal set out in detail written submissions from the Applicants received following the first Tribunal hearing, and the evidence received in support of the Applicants’ application for a Business Skills Visa: CB 844-846 at [26]-[31].

2. It is necessary to set out some of those submissions, particularly as they relate to the question of:

   a business, [which] means an interest in the business as:

   (a) a shareholder in a company that carries on the business,

   being the definition, in part, of “ownership interest” in s.134(10)(a) of the Migration Act.

3. The relevant submissions include the following:

   a)that Mr Muhammad had an ownership interest in the businesses by owning units in the Zushi Bento Floreat Unit Trust and The Shiki Group Unit Trust;

   b)that the units are owned by Mr Muhammad through an interposed company, SQ Jacks Pty Ltd;

   c)that the trustee companies for the unit trusts are not registered businesses, do not have a tax file number, and are not recognised by the Australian Tax Office as operating the respective businesses, and do not lodge income tax returns;

   d)“… , at law, the nominated businesses for the purposes of the Application were owned and operated by the Unit Trusts (AND NOT THE TRUSTEE COMPANIES), and the Decision Maker incorrectly applied her attention to whether the Applicant had an ownership interest in the trustee company for the purposes of sub-regulation 1.11(1)(a).”;

   e)it was not appropriate to consider whether Mr Muhammad had any interest in the trustee company, but rather whether, via SQ Jacks Pty Ltd, he had an interest in the unit trusts;

   f)the ownership of the units is akin to the concept of owning shares in a company; and

   g)Mr Muhammad, via SQ Jacks Pty Ltd, was a unit holder in the respective unit trusts and therefore an owner of the main business as required under the regulations.

   CB 844-846 at [26].

4. The Tribunal also noted that:

   The applicants submitted that the businesses were operated by the Trusts.

   CB 846 at [27].

5. Evidence was also called from an accountant on behalf of the Applicants before the Tribunal. The accountant gave evidence, which the Tribunal thought was significant, as follows:

   If these regulations are to cover all the mainstream business structures operating in the Australian Small/Medium business sector it will include: ‘a unit holder in a Unit Trust that carries on the business’.

   CB 846 at [29].

Tribunal’s findings of fact about the entities

1. As to the entities the subject of the Business Skills Visa application the Tribunal found the following facts for the relevant period:

   a)neither of the Applicants had had a shareholding in Zushi Bento (Aust) Pty Ltd;

   b)neither of the Applicants had had a shareholding in Shiki Ventures Pty Ltd;

   c)Zushi Bento (Aust) Pty Ltd is the trustee of the Zushi Bento Floreat Unit Trust;

   d)Shiki Ventures Pty Ltd is the trustee of The Shiki Group Unit Trust;

   e)the Applicants have a total of 100% shareholding (50% each) in SQ Jacks Pty Ltd; and

   f)SQ Jacks Pty Ltd held 35% and 15% of the units in Zushi Bento Floreat Unit Trust and The Shiki Group Unit Trust respectively.

   CB 846-847 at [32].

Tribunal’s consideration of law and policy

1. In its consideration of law and policy the Tribunal observed that:

   a)it was mindful of the differences between a unit trust and a discretionary trust “but for the purpose of the definition of ‘ownership interest’ in [s.134(10) of] the Migration Act” it was not regarded “as material”: CB 847 at [34];

   b)considered both Minister for Immigration & Citizenship v Hart [2009] FCAFC 112; (2009) 179 FCR 212; (2009) 111 ALD 502 (“Hart”) and Campbell & Ors v Minister for Immigration & Citizenship & Anor [2011] FCA 940; (2011) 221 FCR 255; (2011) 122 ALD 560 (“Campbell”): CB 847-848 at [35], observing that they were “not directly on point nevertheless they make a number of instructive points relevant to the current matter”: CB 847 at [35], and set out those instructive points as follows (footnotes omitted and abbreviated citations inserted):

   ·   “...the objects of the legislation, and the width of the plain words of the definition of “ownership interest” in s 134(10) of the Act, make it plain to me that the context demands that the meaning of “ownership interest” is as Parliament intended in the plain words of s 1 34(10), without qualifying or limiting addition.”: Hart at [8] per Spender J.

   ·   “The definition in s 134(10) of an 'ownership interest,' in relation to a business, is a definition by Parliament, which definition is in disconformity with the ordinary meaning of such an interest under the general law. The concluding words of the definition of ownership interest vividly illustrate that disconformity.”: Hart at [27] per Spender J.

   ·   “… Parliament has spoken as to what is an 'ownership interest' in relation to a business”: Hart at [32] per Spender J.

   ·   “The Federal Magistrate was right to say that the relevant inquiry ...was whether the company in which there is the necessary shareholding carries on the relevant business.”: Hart at [33] per Spender J.

   ·   “Mr Campbell has maintained that his status as a trustee of the JAG Trust was sufficient to be an 'ownership interest' within the meaning of s 134(10) of the Act, it is clear that this interest of Mr Campbell in the business of the JAG Trust does not fit into any of the three definitions of 'ownership interest' in that section." After noting that the business enterprise may have been structured as a trust for asset protection or other commercial reasons, and that the general law may recognise a proprietary interest, but the Court commented that they are irrelevant for the purpose of s134(10) of the Act. “On the facts of this case Mr Campbell cannot overcome a clearly insurmountable obstacle in this appeal-namely that his interest in the business of the JAG Trust is that of a trustee and a beneficiary. It is not, either directly or indirectly, that of a shareholder in a company that carries on the business, a partner in a partnership that carries on the business, or the sole proprietor of the business.”: Hart at [34] per Spender J.

   ·   “I do not accept...that for the purposes of considering whether the types of ownership interests defined by s 134(10) apply to particular facts, the Court can impose on an existing legal structure a different structure representing 'the plain commercial reality of the situation”: Hart at [36] per Greenwood J.

   c)it had regard to the policy of the Department of Immigration and Border Protection (the footnote indicating that it had regard to PAM3 Migration Regs.–other–Gen Guide M-Business skills visas–Business Ownership and assets) (“Departmental Policy”), but placed little weight on it because it provided an example in which the applicant was the trustee of the trust either directly or indirectly which is not applicable in the circumstances: CB 848 at [36]; and

   d)it did consider it to be relevant that the Departmental Policy, at paragraph 39.6, made reference to a trust operating a business, but further observed in the footnote that it was in the context of the trustee company operating the business which was not the current situation: CB 848 at [36] and footnote 36.

Tribunal’s analysis and conclusion

1. In analysing the facts and the law the Tribunal made findings, and concluded as follows:

   a)section 134(10) of the Migration Act governs the determination as to what constitutes an “ownership interest”: CB 848 at [37];

   b)the definition of “ownership interest” in s.134(10) of the Migration Act is not consistent with general law concepts of ownership: CB 848 at [37];

   c)the definition of “ownership interest” in s.134(10) of the Migration Act “does not contemplate a trust carrying on a business, although it contemplates an interposed trust in a business structure”: CB 848 at [37];

   d)section 134(10) of the Migration Act provided an exhaustive definition of “ownership interest” in the context of the Migration Act and Migration Regulations, and whilst expanded from traditional notions of ownership interest, should not be expanded beyond its plain words: CB 849 at [42];

   e)that the “focus for the applicants’ submissions was that the trusts, as opposed to the trustee companies, were carrying on the respective businesses”, but that “this does not assist the applicants in satisfying” s.134(10) of the Migration Act: CB 849 at [43];

   f)section 134(10) of the Migration Act:

   i)only contemplated three types of entities or persons – a company, partnership or sole trader – carrying on a business (and the Applicants did not satisfy any of those categories); and

   ii)did not contemplate a trust carrying on a business: CB 849 at [44];

   g)neither SQ Jacks Pty Ltd, nor any other company in which the Applicants had shares, carried on the relevant businesses: CB 849 [44];

   h)that “even if … [the Tribunal] were to find that the respective trustee companies, rather than the trusts, carry on the business (and noting that this was strenuously denied by the Applicants) there is no claim or evidence to the effect that Mr Muhammad has an ownership interest, as defined, in the trustee companies” and therefore “on any alternate view, section 134(10) of the [Migration] Act would not be satisfied in any event”: CB 849 at [45];

   i)the Applicants did not have the necessary “ownership interest” as defined in s.134(10) of the Migration Act for the purposes of cl.892.211 of Schedule 2 to the Migration Regulations and reg.1.11 of the Migration Regulations as it was not established that each of the businesses was carried on by a company, partnership or sole trader in which the Applicants held any interest: CB 849 at [46]; and

   j)the criteria in cl.892.211 of Schedule 2 to the Migration Regulations was not satisfied and the Delegate’s Decision to refuse to grant the Applicants the Business Skills Visa was affirmed: CB 850 at [48].

Grounds of the Judicial Review Application

1. The six grounds as set out in the Judicial Review Application are, verbatim, as follows:

   1. The Migration Review Tribunal misinterpreted Section 134(10) of the Migration Act 1958 (Cth) (“Act”).

   2. The Tribunal erred in its application of the Policy Advice Manual issued by the Department of Immigration and Policy.

   3. The Tribunal erred in failing to take into consideration Regulation 1.11A of the Migration Regulations 1994 (Cth).

   4. In the context of Section 134(10) of the Act, the Applicants ought to be considered to have an “ownership interest” as that term is defined in Section 134(10) of the Act in the relevant business.

   5. The Tribunal’s decision was so unreasonable that no reasonable Tribunal could have made it

   6. The Tribunal’s decision was affected by jurisdictional error and therefore not a “privative clause” decision within the meaning of s.474 of the Act.

Affidavit in support of the Judicial Review Application

1. Mr Muhammad has sworn an affidavit in support of the Judicial Review Application (“Mr Muhammad’s Affidavit”). Mr Muhammad’s Affidavit relevantly provides as follows:

   7. 1 am aggrieved by the Tribunal's decision as I believe that the Tribunal had erred in finding that I did not have an ownership interest in the relevant businesses under section 134(10) of the Migration Act 1958 (Cth).

   8. At all material times, the Second Applicant and I owned all the shares in SQ Jacks Pty Ltd, which in turn held units in the Zushi Bento Floreat Unit Trust and the Shiki Venture Unit Trust.

   9. I have the day to day conduct of the relevant businesses and verily believe that it is possible for me to hold my ownership interests in those businesses through units in a unit trust.

   I0.     I have now been in Australia for over 5 years, running the day-to-day operations of the businesses, creating employment and contributing to the Australia economy.

   11. I believe that I had an “ownership interest” defined in section 134(10) of the Act and seek orders that the decision of the Tribunal be quashed and that the matter be remitted to the Tribunal for consideration in accordance to law.

Consideration

Jurisdictional error

1. The Tribunal Decision is only liable to be set aside upon review if it involves jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. Further, an error by the Tribunal, will only constitute jurisdictional error if the Tribunal:

   a)identifies a wrong issue;

   b)asks the wrong question;

   c)ignores relevant material; or

   d)relies on irrelevant material,

   in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.

Case law

1. In Hart the Full Court of the Federal Court was dealing with the issue of “ownership interest” in s.134(10)(a) of the Migration Act in the context of a business called Northside Cabinets. The business was conducted by Northside Cabinets Pty Ltd, and the principal activity of the business was cabinet making. Northside Cabinets Pty Ltd had 100 issued shares at $1 each. The applicant for a class of business skills visa held 20 shares. The Tribunal there found that Northside Cabinets Pty Ltd, in its capacity as trustee of a family trust, conducted the operations of the cabinet making business, and that the applicant had a 20% shareholding in Northside Cabinets Pty Ltd. The Tribunal found that Northside Cabinets Pty Ltd was structured on the footing of a business conducted by a company as trustee of a family trust and that that structure was adopted on advice for asset protection purposes: Hart at [57] per Greenwood J.

2. In the Full Court of the Federal Court it was observed that the Tribunal’s findings were “entirely consistent with a finding that the business of Northside Cabinets was conducted by Northside Cabinets Pty Ltd as trustee of the …. [family trust]”: Hart at [57] per Greenwood J.

3. The majority of the Full Court of the Federal Court observed that before the Federal Magistrates Court it had been held that the “relevant inquiry …. was whether the company in which there is the necessary shareholding carries on the relevant business”: Hart at [33] per Spender J and [60] per Greenwood J.

4. The majority of the Full Court of the Federal Court in Hart found that a shareholder in a company carrying on the business has an interest in the business, and that that interest is an ownership interest, that being so by reason of the particular definition of “ownership interest” set out at s.134(10) of the Migration Act. In Hart at [30] per Spender J it was observed that:

   30 The definition, inelegant and not in conformity with the ordinary understanding of the general law as it may be, makes plain that a shareholder in a company that carries on the business has an interest in the business, and that interest is an ownership interest.

   While Greenwood J in Hart at [66] observed that:

   66 Accordingly, when the Parliament enacted a definition of ownership interest for the purposes of the Migration Act and Regulations which defined an ownership interest in relation to a business to mean an interest in the business as a shareholder in a company that carries on the business, the Parliament must be taken to have departed from orthodoxy so as to establish a construct, in the migration context, in relation to Established Business Visas, so as to bring about the result that, as a shareholder, an applicant would enjoy a qualifying ownership interest in relation to a business, in the circumstances of the integers that must be made out in order to satisfy the applicable criteria for such a visa. …

5. In Hart at [71]-[73] Greenwood J went on to further observe that:

   71 Although the trustee conducts the cabinet-making business in this capacity, the business assets and the cabinet-making undertaking is conducted and operated by the company. No beneficial interest in the assets or the undertaking is vested in any member of any class of objects. The company owns and deploys the assets in furthering the undertaking coupled with a duty by reason of its particular capacity.

   72 The Act does not disqualify the applicant from having an ownership interest in a business as shareholder in a company that carries on that business, if the company does so in the capacity of a trustee of a discretionary trust or, in a particular trustee capacity.

   73 … Since an ownership interest in relation to a business means an interest in the business as a shareholder, the applicant’s shareholding of 20% represents 20% of the total value of the business. …

6. Albeit negatively expressed, the conclusion of the majority of the Full Court of the Federal Court in Hart can be summarised by what Greenwood J said at [72] above, and also at [75] as follows:

   75 … I am not satisfied that the proper construction [of s.134(10)(a) of the Migration Act] is the disqualification of an ownership interest in a qualifying business in circumstances where the applicant holds a share in a company conducting the business as trustee of a discretionary trust.

7. Put simply, Hart is authority for the proposition that a person who holds shares in a company which is the trustee of a trust which conducts a business, is a person who holds an “ownership interest” for the purposes of s.134(10)(a) of the Migration Act.

8. The Court was also referred to Campbell but the Federal Court’s judgment in Campbell rested upon whether or not Mr Campbell was a partner or sole proprietor in the business, and the judgment in Campbell is therefore not directly on point. The Federal Court in Campbell at [35] per Collier J did however observe, consistent with the finding of the Full Court of the Federal Court in Hart, that:

   35 … the statutory modification of the meaning of “ownership interest” in s 134(10)(a) was the reason why the majority in Hart accepted that Ms Hart had an “ownership interest” in the relevant business enterprise – Ms Hart was the owner of shares in the company which conducted the relevant business. …

Grounds 1 and 4

1. Grounds 1 and 4 relate to the Tribunal’s interpretation and application of the definition of “ownership interest” in s.134(10) of the Migration Act, which is set out at [6] above.

2. The Tribunal’s findings of fact with respect to the relationship between the various entities are set out above. No jurisdictional error has been alleged with respect to those findings. The task for the Tribunal as noted was a “legal one”: CB 842 at [17]. The Tribunal was required to determine whether the facts as found met the definition of “ownership interest” in s.134(10) of the Migration Act.

3. The Tribunal Decision demonstrates that:

   a)it properly understood the question it was required to ask under s.134(10) of the Migration Act;

   b)the Applicants were given the opportunity to make submissions with respect to all relevant facts and issues, including the interpretation and application of the definition of “ownership interest” in s.134(10) of the Migration Act: CB 848-849 at [38] and [41]-[42];

   c)it had regard to relevant authority (Hart and Campbell) on the interpretation of s.134(10) of the Migration Act; and

   d)on the facts found, concluded that the Applicants did not have an ownership interest in the relevant businesses.

4. Having regard to the definition of “ownership interest” in s.134(10) of the Migration Act it is plain that the current circumstances do not give rise to a partnership or sole proprietorship. Thus, the question is whether or not the Applicants’ shareholding in SQ Jacks Pty Ltd which owned units in the Zushi Bento Floreat Unit Trust and The Shiki Group Unit Trust constituted an interest in the businesses said to be run by those unit trusts as a shareholder in a company that carries on the business, including an interest held indirectly through an interposed company, partnership or trust. It was made plain that the Applicants’ case before the Tribunal was that the relevant businesses were operated by the unit trusts, and that the trustee companies did not operate the businesses. It was submitted that ownership of units in a unit trust was akin to the concept of owning shares in a company, and therefore the Applicants, as holders of units in the unit trusts were akin to shareholders in a company.

5. The definition of “ownership interest” is a particular one, which as both Hart and Campbell, and the Tribunal, recognise, skews orthodox notions of ownership. But, as the Federal Court observed in both Hart and Campbell, skewing orthodoxy is part of the legislative role of Parliament. It is not the role of the Courts. This Court must take the provisions of s.134(10) of the Migration Act as it finds them, and as such they are limited to, for relevant purposes, an applicant who has an interest in a business as a shareholder in a company that carries on that business. That is not the position of the Applicants. They do not have an interest as a shareholder in a company that carries on the business. Section 134(10) of the Migration Act does not extend to an interest in a company which owns units in a unit trust that carries on the business, and it must be a company that carries on the business, not a unit trust. Thus whilst the interest can be held indirectly, for example via a trust, the actual carrying on of the business must be by a company. On the Applicants’ own case that is not the position here, where in each case the relevant business is carried on by one of the two unit trusts concerned.

6. The Court notes that it was not the Applicants’ case that the companies which were trustees of the unit trusts were carrying on the businesses. Therefore, the rationale in Hart was not directly applicable to the circumstances before the Tribunal.

7. For the above reasons, the Applicants have not established that the Tribunal misinterpreted s.134(10) of the Migration Act. It follows that no jurisdictional error is established in respect of ground 1.

Ground 2

1. Ground 2 does not particularise the alleged error in the Departmental Policy. The failure to particularise a ground of review is itself sufficient to warrant dismissal of that ground: SZELX v Minister for Immigration & Anor [2007] FMCA 209 at [17]-[21] per Emmett FM; WZATH v Minister for Immigration & Anor [2014] FCCA 612 at [60] per Judge Lucev.

2. In any event, the Tribunal Decision demonstrates that the Tribunal:

   a)had regard to the Applicants’ submissions regarding Departmental Policy: CB 845 at [26];

   b)considered the application of the Departmental Policy: CB 845 at [36]; and

   c)concluded that little weight should be given to the Departmental Policy given the circumstances of the application before it. The weight to be given to the Departmental Policy, and the factual findings in relation to it, were matters for the Tribunal to assess in determining whether it was satisfied or otherwise of the Applicant’s claims: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ. In the circumstances, there was no error, jurisdictional or otherwise, in the Tribunal’s approach to the application of the Departmental Policy. Further, and in any event, in the Court’s view the Tribunal was correct to place little weight upon those aspects of the Departmental Policy that it referred to as it was not material which was directly applicable to the factual circumstances of this case: see CB 848 at [36] (and footnotes thereto).

3. For the above reasons, and in the absence of any particulars regarding the alleged “misinterpretation” of the Departmental Policy, it has not been established that jurisdictional error arises in respect of ground 2.

Ground 3

1. Contrary to what is alleged in ground 3, the Tribunal did consider the application of reg.1.11A of the Migration Regulations (which is set out at [7] above). The Tribunal Decision made reference to the Applicants’ claims that:

   a)the Delegate did not take reg.1.11A of the Migration Regulations into consideration;

   b)when read together s.134(10) of the Migration Act and reg.1.11A of the Migration Regulations made it clear that it is not required that the Applicants have direct ownership of a main business; and

   c)holding ownership interests by way of being a unit holder of a unit trust has been accepted as satisfying reg.1.11A of the Migration Regulations.

   CB 844-846 at [26].

2. Regulation 1.11A of the Migration Regulations does not, however, provide any guidance as to the interpretation of the definition of “ownership interest” in s.134(10) of the Migration Act. Rather, reg.1.11A of the Migration Regulations sets out a specific means of evidencing beneficial ownership of an “ownership interest”. As such, it does not define what constitutes an “ownership interest”, and does not derogate from the definition of “ownership interest” in s.134(10) of the Migration Act. Thus, even if the Tribunal had not considered or referred to reg.1.11A of the Migration Regulations no jurisdictional error would have arisen. In any event, the Tribunal clearly considered all of the submissions and evidence that was put before it by the Applicants before arriving at its decision to affirm the Delegate’s Decision.

3. In the above circumstances ground 3 is not made out, and no jurisdictional error arises with respect to it.

Ground 5

1. Ground 5 alleges unreasonableness on the part of the Tribunal, but fails to particularise what the unreasonableness is said to be. As with ground 2, the failure to particularise this ground of review is itself sufficient to warrant dismissal of that ground: see authority cited at [36] above.

2. Unreasonableness, in the sense referred to in Associated Provincial Picture Houses Ltd v Wednesbury Corporation: [1947] EWCA Civ 1; [1948] 1 KB 223 (“Wednesbury”) has traditionally been viewed as an abuse of power by the repository of the power, and is an extremely confined doctrine requiring, for a decision to be held invalid, a purported exercise of power so unreasonable that no reasonable repository of the power could have made the decision concerned: Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 33 IR 263; (1990) 93 ALR 1 at 35 per Brennan CJ, applied by this Court in Mushtaq v Minister for Immigration & Anor [2013] FCCA 198 at [31]-[32] per Judge F Turner. More recently, it has been held that in order to determine if the exercise of a statutory discretionary power is unreasonable in a Wednesbury sense, consideration is required of whether the dominant reason for the decision is outside the scope and purpose of the enactment or the policy considerations which legitimately form the exercise of the relevant discretionary power, but the exercise of the power must still be in accordance with, and according to, the law: Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181at [26] per French CJ and [47] per Hayne, Kiefel and Bell JJ.

3. There is nothing unreasonable in the relevant legal sense in the Tribunal Decision. The dominant reason for the Tribunal Decision in this matter was not outside the scope and purpose of the Migration Act and the Departmental Policy. Rather, the Tribunal Decision was squarely within the terms of the Migration Act, the Tribunal having to be satisfied: Migration Act, s.65, before granting a Business Skills Visa: Migration Regulations, cll.892.211 and 892.221, that the relevant “ownership interest” existed: Migration Act, s.134(10). The Tribunal’s determination of satisfaction was approached in that way, and in addition had regard to the Departmental Policy to the extent that it was relevant. The Tribunal failed to be satisfied that the Business Skills Visa should be granted, but for reasons set out above it could not be said to be unreasonable because it was based, in the Court’s view, on the correct interpretation of “ownership interest” as defined in s.134(10) of the Migration Act, and the application of the facts to that definition.

4. For the above reasons, ground 5 is not made out, and no jurisdictional error arises with respect to it.

Ground 6

1. Ground 6 is effectively a conclusory submission, premised on the assumption that one of grounds 1 to 5 is successful. That premise has not been fulfilled, for reasons set out above, and ground 6 can neither succeed nor be said to give rise to jurisdictional error.

Conclusions and orders

1. The Court has concluded that there is no jurisdictional error in the Tribunal Decision. It follows, therefore, that the Judicial Review Application must be dismissed. There will be an order accordingly.

2. There will also be an order amending the name of the Tribunal to read “Administrative Appeals Tribunal”: Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2.

3. The Court will hear the parties as to costs.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Date: 3 March 2016