Sefat and Ors v Minister for Immigration and Anor (No.2)
[2020] FCCA 456
•3 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SEFAT & ORS v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2020] FCCA 456 |
| Catchwords: MIGRATION – Visa – Business Skills (Residence) visa – ‘ownership interest’ – ‘sole proprietor’ – whether Tribunal failed to properly interpret and apply statutory definition – whether jurisdictional error – error demonstrated – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.134(10) & 348 |
| Cases cited: Sefat v Minister for Immigration and Border Protection (2016) 313 FLR 53 |
| First Applicant: | MOHAMMED ALI SEFAT |
| Second Applicant: | ALIREZA SEFAT |
| Third Applicant: | AMIR MOHAMMED SEFAT |
| Fourth Applicant: | NAJMEH SEFAT |
| Fifth Applicant: | NASRIN MOZAFFARI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 233 of 2017 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 4 September 2018 |
| Date of Last Submission: | 4 September 2018 |
| Delivered at: | Adelaide |
| Delivered on: | 3 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr S Ower SC |
| Solicitors for the Applicant: | MSM Legal |
| Counsel for the Respondents: | Ms H Stanley |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
There be an order in the nature of certiorari that the decision of the Administrative Appeals Tribunal dated 22 May 2017 affirming the decision of the delegate of the first respondent made on 29 September 2014 rejecting the applicants’ applications for Business Skills (Residence) (Class DF) visas is quashed.
There be an order in the nature of mandamus that the Administrative Appeals Tribunal review according to law the decision of the delegate of the first respondent dated 29 September 2014 rejecting the applicants’ applications for Business Skills (Residence) (Class DF) visas.
The first respondent do pay the applicants’ costs as agreed or taxed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 233 of 2017
| MOHAMMED ALI SEFAT |
First Applicant
| ALIREZA SEFAT |
Second Applicant
| AMIR MOHAMMAD SEFAT |
Third Applicant
| NAJMEH SEFAT |
Fourth Applicant
| NASRIN MOZAFFARI |
Fifth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review with respect to a decision of the Administrative Appeals Tribunal dated 22 May 2017. That decision affirmed an earlier decision of a delegate of the first respondent which was made on 29 September 2014 and which refused the first applicant a Business Skills (Permanent) Subclass 892 visa.
Three grounds were identified in the application. The applicants indicated that they did not pursue ground 1 and submitted that grounds 2 and 3 were to the same effect. Central to the submissions for the applicant was the assertion that the Tribunal misunderstood the exercise it was required to undertake in light of my judgment in Sefat v Minister for Immigration and Border Protection.[1] (‘Sefat (No.1)’).
[1] (2016) 313 FLR 53.
Grounds 2 and 3 of the application are as follows:
“Ground 2
The Second Respondent committed jurisdictional error in that it committed an error of law in failing to properly interpret Section 134 (10) of the Act.
Ground 3
The Second Respondent committed jurisdictional error in finding that the decision of the Federal Magistrates Court in Campbell v MIAC [2011] FMCA 81 [sic] was determinative of the question whether an ownership interest exists in this case pursuant to Section 134 (10) of the Act.”
The Minister opposes the application, arguing in effect that the Tribunal correctly understood the task required of it by Sefat (No.1), correctly applied the law both by reference to my earlier decision and a decision of the Federal Court to which I will refer in a moment, asked itself the right question, and correctly applied the legislation. For the reasons that follow, I reject the submissions of the first respondent.
Background
The applicants applied for the visas on 19 July 2013. As I have noted, the Delegate refused to grant those visas on 29 September 2014. The applicants made an application for a merits review and the Migration Review Tribunal affirmed the decision of the Delegate on 23 July 2015. That decision was the subject of a judicial review before this Court and on 29 September 2016, I issued writs quashing the Tribunal decision, ordering that the Tribunal review the decision of the delegate according to law.[2]
[2]Ibid.
Sefat (No.1) was not the subject of an appeal by the first respondent. Nor did the first respondent attempt to argue in this hearing that it had been wrongly decided. In the course of my reasons, I distinguished the decision of Campbell and Others v Minister for Immigration and Citizenshipand Another.[3] (‘Campbell’).
[3] (2011) 221 FCR 255.
The Tribunal listed the matter for a rehearing, which occurred on 4 April and 19 April 2017. The applicants were represented on those occasions by Ms McGrath, a solicitor and registered migration agent. The Tribunal affirmed the decision of the delegate from 29 September 2014.
Legislative framework
By virtue of cl.892.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’), a primary criterion is established for the grant of the visa. The criterion 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.
(2)For each business to which subclause (1) applies:
(a)an Australian Business Number has been obtained; and
(b)all Business Activity Statements required by the Australian Taxation Office (the ATO) for the period mentioned in subclause (1) have been submitted to the ATO and have been included in the application.”
Regulation 1.11 of the Regulations provides that the term ‘main business’ means:
“(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
…
(d)the business is a qualifying business.
(2)If an applicant has, or has had, an ownership interest in more than 1 qualifying business that would, except for this subregulation, be a main business in relation to the applicant, the applicant must not nominate more than 2 of those qualifying businesses as main businesses.’’
Regulation 1.03 of the Regulations defines the terms ‘ownership interest’ and ‘qualifying business’. With respect to the term ‘ownership interest’, the Regulation provides that it have the same meaning provided for in s.134(10) of the Migration Act1958 (Cth) (‘the Act’). That section provided as follows:
“’Ownership interest’ in relation to a business, means an interest in the business as:
(1)a shareholder in a company that carries on the business; or
(2)a partner in a partnership that carries on the business; or
(3)the sole proprietor of the business;
Including such an interest held indirectly through one or more interposed companies, partnerships or trusts.”
The Delegate refused the application on the basis that he was not satisfied that the first applicant had and continued to have an ownership interest in his nominated main business. For that reason he did not meet the mandatory criterion in cl 892.211 of Schedule 2 of the Regulations.[4]
[4] Court Book (‘CB’), 471 - 478.
Sefat (No.1)
Before I turn to consider the decision record of the Tribunal, the subject of this review, it is appropriate at this point to refer to my reasons in Sefat (No.1).
The brief summary I provided of the background facts to this matter in those reasons remains appropriate to this review:
“The applicants in this matter are Iranian citizens. The first applicant, Mr Mohammad Ali Sefat, applied for the visas on 19 July 2013 with respect to one nominated main business, the Sefat Family Trust trading as Cozy Shoes and Gaptel Australia. The secondary applicants are the wife and children of the first applicant. As its name suggests, Cozy Shoes is a business engaged in the retail sale of footwear. Gaptel Australia is engaged in providing voice over internet protocol (‘VOIP’) services. The success of the visa applications for the secondary applicants is contingent on the success of the first applicant, Mr Mohammed Ali Sefat.”[5]
[5]Sefat (No.1) [3].
I went on to say:
“In Campbell’s case the appellant had established a business enterprise structured in a way he contended gave him an “ownership interest” for the purpose of s.134(10).
The Court held that the fact that the business enterprise, in which he had an interest had been structured as a trust in a particular way for legitimate commercial and asset protection purposes, was not a relevant consideration. Nor was the fact that at general law, he might be recognised as having a proprietary interest as a co-trustee.
The Court found that Mr Campbell was unable to overcome the obstacle that his interest was merely as a trustee and a beneficiary. His interest as a trustee was not sufficient to bring him within the terms of s.134(10) because he was a co-trustee with Chez Alison Pty Ltd. The Court rejected an argument that a reference to ‘the' sole proprietor could be read as meaning ‘a’ sole proprietor and that each of the co-trustees was ‘a’ sole proprietor. His honour [sic] observed:
“In ordinary usage a ‘sole proprietor’ is a one-person business where the owner is responsible for the debts of the business, takes all the profits and bears all the losses. S.134(10)(c) contemplates one, sole proprietor, a concept underscored by the use of the definite article qualifying the expression. In my view, the position contended by the appellants defies both common sense and the plain meaning of the words of s.134(10)(c) of the Act (compare Spender J in Hart at [8]).”
In the course of argument, counsel for the appellant in Campbell's case advanced a submission that invited the Court to take a very broad interpretation of s.134(10), in light of the departure from the ordinary understanding of what is entailed in an “ownership interest” at general law, in order to reflect the commercial reality of the arrangements encompassed in the relevant business enterprise. His honour [sic] dealt with that submission in this way:
“I do not accept, as submitted by Mr Boccabella, 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. (transcript p 13 11 34-35).”
I am satisfied that Campbell's case is authority for the proposition that where there are two or more trustees who have an interest in a business, then neither of them could be said to be the ‘sole proprietor’ for the purposes of s.134(10) of the Act by virtue of their status as a trustee alone. However, I am persuaded by the submission of Mr Ower that given the clear intention of the legislature in having expanded the concept of ownership interest for the purposes of the scheme of business visas created under the Migration Act by virtue of the definition in s.134(10), it is necessary to look at the state of affairs created by the trust deed itself.
I am persuaded that in this matter the Tribunal did not do this, rather, regarded the decision in Campbell's case as being entirely determinative of the issue because the applicant was one of two co-trustees.
In Campbell’s case, the Court emphasised that the relationship between Mr Campbell and Chez Alison Pty Ltd was governed by a deed of trust. In my view, Campbell's case was an example of the Court closely scrutinizing the interest created by the trust deed. There is no reference in Campbell's case as to whether Mr Campbell was the appointor under the trust deed and it does not appear that any argument was advanced on this basis.
I am satisfied that in this matter, the Tribunal erred as a matter of law in its approach to the meaning of the term ‘sole proprietor’ under the definition of “ownership interest” in s.134(10) of the Act. In considering whether the applicant had an “ownership interest” by virtue of the definition of ‘sole proprietor’ in s.134(10)(c) of the Act, the Tribunal was required to include in its consideration “such an interest held indirectly through one or more interposed companies, partnerships or trusts.” The words “such an interest” suggest that, as Mr Ower has submitted, the Tribunal was required to have regard to the nature of the interests actually created by the trust deed. The interest identified in Campbell's case was the applicant's role as a co-trustee and beneficiary and nothing more. In my view, that is materially different to the facts of this matter. The role of appointor and the significance that this had for the ability of the applicant to run the affairs of the company, meant that in the context of the relationships established by this trust deed, it was at least arguable that the first applicant was within the definition in s.134(10) the ‘sole proprietor’.”[6]
[6] Sefat (No.1) [29]-[36].
I went on to find:
“… In these circumstances, a consideration of his case required a proper consideration and construction of the trust deed and the interests and roles created by that instrument. The Tribunal was required to consider the trust deed to determine whether the first applicant could rely on it for the purposes of establishing an “ownership interest”…”[7]
[7] Ibid [37].
I concluded that the Tribunal fell into jurisdictional error by failing in its duty to conduct a hearing pursuant to s.348 of the Act by virtue of its failure to properly interpret s.134(10) of the Act, its misinterpretation of Campbell and its failure to have regard to the terms of the trust deed.
Accordingly, the question for the Tribunal on a rehearing was whether the first applicant’s interest in the business was as the sole proprietor of the business, including such an interest held indirectly through one or more interposed companies, partnerships or trusts.
The Tribunal’s findings and reasons
The Tribunal commenced its consideration of claims and evidence by indicating that it had carefully considered my reasons in Sefat (No.1).[8]
[8] CB, 644 [6].
It then proceeded to correctly identify the relevant criterion in cl 892.211 and the term ‘ownership interest’ as defined in reg 1.03 of the Regulations and provided for in s.134(10) of the Act. It noted the observation of Spender J in Minister for Immigration and Citizenship v Hart[9] (‘Hart’) that:
“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.”[10]
[9] (2009) 179 FCR 212.
[10] Ibid [27].
The Tribunal then went on to note various findings from Sefat (No.1) as referred to above.
It found that the claim before it was that it was the first applicant’s role both as trustee and, most significantly, as appointor under the trust deed, which meant that he could properly be regarded as the ‘sole proprietor’. This was on the basis that he was the person who had ultimate control of the business.[11]
[11]CB, 646 [14].
The Tribunal then went on to note the terms of the trust deed, in particular, cl.13 which provided as follows:
“The power of appointing a new Trustee in place of a deceased or retiring Trustee or in addition to an existing Trustee and also the power to remove any Trustee shall be vested in MOHAMMAD ALI SEFAT or such other persons as he may nominate in writing and on the death of said MOHAMMAD ALI SEFAT or the said other person (as the case may be) in his legal personal representatives. The Settlor shall not at any time be eligible for appointment as a Trustee.”[12]
[12] Ibid [15].
The Tribunal proceeded to consider the terms of the trust deed in the following passage:
“Based on the terms of the trust deed I find that Mohammad Ali Sefat and Nasrin Mozaffari are nominated together as “the original trustee”. I find that they are the trustees of the Trust. Mr Vaezi is nominated as the settlor of the Trust. I find that the beneficiaries of the Trust are stated in clause 1.1 as “primary beneficiary” and these are specifically nominated as “Mohammad Ali Sefat, Ali-Reza Sefat. Nasrin Mozaffari, Najmeh Sefat and Amirmohammad Sefat.” This group represents the primary applicant, his wife and children. Given the definition of “primary beneficiary” there is also capacity for an expanded beneficiary group.”[13]
[13] Ibid [16].
Having made those findings, the Tribunal proceeded to consider whether the first applicant could satisfy any of the definitions of ‘ownership interest’ in s.134(10) of the Act. I note that before the Tribunal, an alternative submission was made to the effect that s.134(10)(b) was applicable to the circumstances of the first applicant. In other words, that his circumstances could be viewed as that of a partner in a partnership that carried on the relevant business. The Tribunal rejected that argument, and that argument was not pursued before me.
The Tribunal had before it, and presumably at the instigation of the applicant, a copy of the outlines of submissions that had been filed in this Court in Sefat (No.1). In presenting its argument to the Tribunal, the applicant referred to those submissions and various authorities that they had cited when the matter was originally argued before me. As it had been referred to those authorities, the Tribunal then proceeded to conduct a detailed analysis of them. That was appropriate given it had been referred to them by the applicants. I note, however, that in Sefat (No.1) I referred to those authorities only in passing and by way of summarising the submissions made before me by the applicants.[14]
[14] Sefat (No.1) [21].
My decision, which was binding on the Tribunal, did not turn on a detailed analysis of those cases but rather a consideration of the legislation and the implications of the decision in Campbell’s case.
The Tribunal went on to note:
“In the abovementioned cases the nature of each of the underpinning legislation has allowed the trust property to be considered in a particular way and elements of control have been considered in that context. The particular wording of the underpinning legislation informs the interpretation of the relevant terms. I regard the wording of the provision in the context of the statutory framework as determinative. I turn now to the consideration of this case.”[15]
[15] CB, 649 [33].
The Tribunal then proceeded to a specific application of its interpretation of the law to Mr Sefat’s case.
It commenced by saying:
“I note Judge Heffernan’s remark that it was “at least arguable that the first applicant was within the definition in s.134(10) the ‘sole proprietor’.”
With respect to the Tribunal member, that sentence was not the ratio of my decision in Sefat (No.1). The ratio was to be found in the whole of the passage in paragraph 36 of my reasons and not simply in the final words of the last sentence in that paragraph.
The Tribunal then proceeded to consider Mr Sefat’s position in light of the findings of Collier J in Campbell’s case, albeit making note of the factual differences between that case and Sefat (No.1) which had been identified by me.[17]
[17] Ibid [35].
With respect to the Tribunal member, having done so, she nonetheless failed to acknowledge that my earlier decision had distinguished Campbell’s case. The Tribunal went on to make the following finding:
“Whilst s134(10) of the Act expands the notion of ownership interest, for example by including a shareholder of a company, nevertheless in my view the ordinary usage of the term ‘sole proprietor’s is appropriate in the statutory context and cannot be expanded to stretch the meaning of the words beyond their ordinary meaning.”[18]
[18] Ibid [36].
That finding was contrary to my decision in Sefat (No.1). For reasons I shall discuss later, in my view it also ignored or misconstrued the wording of s.134(10).
As Mr Ower submitted, in concluding that Mr Sefat’s interest was not that of a sole proprietor, the Tribunal stated that the fact that there were two trustees was a significant factor in its decision but did not actually say why Mr Sefat’s interest did not fall within the statutory definition. The Tribunal simply asserts that his role is not either directly or indirectly that of the sole proprietor of the business. It concluded that the finding that he was the sole proprietor would be inconsistent with how the business had been structured. That conclusion was however guided by the Tribunal’s earlier finding, referred to above, that its consideration of whether the first applicant was a ‘sole proprietor’ for the purposes of s.134(10), and hence had an ownership interest, was to be determined by reference to the ‘ordinary usage’ of the terms sole proprietor. The clear effect of its reasoning is that it was bound by the passage referred to from Campbell’s case in the manner in which it had interpreted it and that this necessarily precluded any other finding than the one it made.
I accept the submission of Mr Ower that the remarks of her Honour in Campbell’s case were made in the context of Mr Campbell being one of two trustees and a beneficiary and nothing more. In my view, the ratio of Cambell’s case was in the rejection of the submission that s.134(10)(c) can also mean ‘a’ sole proprietor; that ‘sole proprietor’ can be a number of co-trustees, and that each of such co-trustees is ‘a’ sole proprietor.[19] That submission was consistent with my findings in Sefat (No.1).[20]
[19]Campbell [42].
[20] Sefat (No.1) [31].
In Campbell, her Honour did not doubt that when considering the types of ownership interest defined by s.134(10), it was necessary to consider the particular facts and implications of the business arrangements. The reasons show that she did so. Her rejection of the submission of the appellant and her finding that the Court could not impose on an existing legal structure, a different structure representing the plain commercial reality of the situation was made in the context of the structure of Chez Allison Proprietary Limited, where Mr Campbell was one of two trustees and beneficiaries. It was not a rejection of the need to look at the plain commercial reality of the existing legal structure in question; rather, it was an exhortation not to impose a different structure in the course of doing so. The position in Campbell’s case that her Honour described as defying “both common sense and the plain meaning of the words” was the notion that there could be more than one sole proprietor of a business.
Notwithstanding her Honour’s discussion of the ‘ordinary usage’ of the term ‘sole proprietor’, that term is not used in s.134(10) in simply the ordinary sense, but in an expanded sense. As noted in Hart’s case, when discussing ‘ownership interest’ this is made clear in the final words of the section:
“… Including such an interest held indirectly through one or more interposed companies, partnerships or trusts.”
I do not understand her Honour in Campbell’s case to be suggesting otherwise. As her Honour found, the Act contemplates that there be one sole proprietor and she rejected the notion that there could be two sole proprietors. Her Honour made the observation that:
“ … However, while, in the Act, parliament may have chosen to extend the concept of “ownership interests” to encompass the interest of a shareholder, this does not warrant the court itself “bending orthodoxy” to rewrite the definition of “ownership interests” in s 134(10) and recognise ownership interests which do not fall within the existing parameters of that section.”[21]
[21] Campbell [35].
When she did so, she was in my view, simply emphasising that the submission that there could be more than one sole proprietor would if accepted, involve ‘bending orthodoxy’ and would not be within the existing parameters of the section because it involved reading the word ‘the’ to mean ‘a’ sole proprietor. Her Honour does not appear to have been attempting to make a final determination as to what the existing parameters of ‘ownership interest’ under the section actually were and as I read the decision, was not required to do so for the purpose of deciding that issue before her. That does not mean, as the Tribunal has inferred in the subject decision, that the effect of the section is that the term ‘sole proprietor’ itself does not have an expanded meaning.
As submitted by Mr Ower, the use of the word ‘indirectly’ suggests that even if the relevant business is not a ‘one person business’ because there is another entity interposed, for example a company or a trust, or, in the case of a partnership, a person, it means that the definition looks beyond the formal legal structure. The definition of ‘ownership interest’ in s.134(10) does not suggest that the ‘sole proprietorship’ of a business was excluded from being held indirectly through an interposed trust. Such an approach to the meaning of sole proprietorship is in disconformity with the ordinary meaning of such an interest at general law.
The above reading of s.134(10) is reflected in the Department’s own Policy Advice Manual (‘PAM’).[22] It is of some concern that, in its submissions before me, the first respondent advocated for an interpretation of s.134(10) that is in disconformity with the Department’s own advice to its decision makers. The first respondent did not contend that the passage from the PAM referred to by the Tribunal was inoperative at the time the Tribunal made its decision.
[22] CB, 650 [48].
It is to be accepted that the Court does not pay deference to an internal policy manual of the Department in matters of statutory interpretation, however, the content is worth noting. The PAM states, with respect to the potential impact of a trust on ‘ownership interest’ in a business, that an applicant sharing the trustee role with their spouse or de facto partner may be attributed 100 per cent ownership. In dealing with that passage from the PAM, the Tribunal member stated:
“This may be misleading. In my view it would assist if there was clear information for business visa applicants to highlight this issue in relation to trust structures in the context of s.134(10) of the Act.”[23]
[23] Ibid.
It is not misleading if the definition of ‘ownership interest’ in relation to a business is construed in light of the wording of the section as a whole.
I accept the submission of Mr Ower that on the basis of the Tribunal’s reasons, it appears to have reached the conclusion that because there were two trustees, and the first applicant had not exercised his powers as appointer, that he was not the sole proprietor. It did not appear to consider what the nature of his powers as appointer were or how they affected his interest, in particular, whether the other trustee had an equal interest to the first applicant. By virtue of its conclusion that the term ‘sole proprietor’ did not have an expanded meaning under s.134(10), it did not take into account the fact that a sole proprietor could hold their interest indirectly. It proceeded on the basis that the phrase, “the sole proprietor of the business, … including such an interest held indirectly through one or more interposed companies, partnerships or trusts” was restricted to what Collier J described as the ordinary usage of the phrase ‘sole proprietor’. As submitted by the applicant, the Tribunal did not have regard to the nature and implications of the interests actually created by the trust deed which it was required to do by virtue of my decision in Sefat (No.1).
I do not accept the submission of the first respondent that the clear inference of the Tribunal’s reasoning is that the effect of the expansion phrase under s.134(10) does not expand the type of interest that can amount to an ownership interest but rather the way in which it was held. The Tribunal did not go so far. To the extent that this was a submission that the first respondent was urging upon me, it was inconsistent with my decision in Sefat (No.1), which it did not appeal.
I am of course aware that it is not the province of a Court on judicial review to stray into the territory of a merits review. In reaching my conclusion in this matter I have reminded myself of the remarks of the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang[24] that I am not to read the decision of the Tribunal with an eye keenly attuned to the perception of error. I have considered carefully whether the findings of the Tribunal at paragraphs 34 to 38 inclusive of its decision record are sufficient to comply with the task required of it by my decision in Sefat (No.1). I am not satisfied that they are. It was not sufficient, for example, for the Tribunal to simply accept that the situation in this matter was different from the facts in Campbell. The situation was also different because since the decision in Campbell, this Court had delivered its decision in Sefat (No.1) which distinguished that decision and added to the judicial consideration of the definition of ‘ownership interest’ under s.134(10) of the Act, in so far as it encompassed ‘the sole proprietor’. As I have already noted, the first respondent had the opportunity to appeal Sefat (No.1) if it chose to do so but did not. That decision was binding on the Tribunal and the task it engaged in was insufficient to comply with it. I am not able to say that by failing to properly apply my decision in Sefat (No.1) the outcome of this matter before the Tribunal has not been affected.
[24] (1996) 185 CLR 259 [30].
In reaching that conclusion, it has not been overlooked that the Tribunal appears to have disagreed with my reasons in Sefat (No.1). It may be arguable, although the opportunity was not taken up by way of appeal from that matter, that my decision in Sefat (No.1) was wrongly decided. It is not at all clear that my decision in that matter was plainly wrong and it should have been followed by the Tribunal.[25] I have applied the decision of Sefat (No.1) in reaching my conclusion.
[25]Tracey v Repatriation Commission (2001) 61 ALD 361 [7].
I am satisfied that the applicants have demonstrated with respect to both grounds 2 and 3 that the Tribunal fell into jurisdictional error. I make the orders to be found at the beginning of these reasons.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Associate:
Date: 3 March 2020
[16] Ibid, 649 [34].
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