Campbell v Minister for Immigration and Citizenship

Decision of the Tribunal 10 In a decision published 23 February 2010 (0801382 [2010] MRTA 433) the Tribunal found that, for the purposes of the criteria prescribed by cl 892.211 of the Regulations, the two year period during which Mr Campbell was required to have held an ownership interest in a relevant business was from 14 May 2005 until 15 May 2007. 11 The key reason for the Tribunal's decision - confirmed by the Federal Magistrate - that Mr Campbell did not hold a relevant ownership interest was that Mr Campbell's interest in the JAG Trust did not satisfy any of the requirements of paragraphs (a), (b) or (c) of the definition in s 134(10) of the Act. 12 In relation to the JAG Trust the Tribunal found as follows: the JAG Trust was established by a deed made on 24 October 2002. The trustees were named as Jonathan Allison and Georgina Sangster. The 2002 Trust Deed was a discretionary trust, of which the beneficiaries were Mr Allison and Ms Sangster. On 15 April 2003 Mr Allison and Ms Sangster purchased the Urban CafÉ. On 1 July 2003 Mr Allison and Ms Sangster entered into a Partnership Agreement with Mr Campbell to carry on business in partnership under a partnership named "Urban CafÉ Bangalow". The combined partnership interest of Mr Allison and Ms Sangster was 66.6%, and the partnership interest of Mr Campbell was 33.3%. From May 2004 the JAG Trust operated the Bang Thai Restaurant. On 28 March 2005 at a meeting of the Trustees of the JAG Trust the Trustees agreed that Mr Campbell be added to the General Beneficiary provisions of the deed, subject to certain conditions. On 30 March 2006 Chez Allison Pty Ltd as Trustee and Mr Allison and Ms Sangster as Principal Beneficiaries entered into a Deed of Confirmation which stated that all copies of the 2002 Trust Deed had been misplaced, and that the Trustee and Principal Beneficiaries agreed to adopt new trust power terms and conditions. The JAG Trust as evidenced by the 2006 Trust Deed is a discretionary trust. Relevantly clause 11 of the trust deed provides that, subject to certain expression provisions to the contrary in clause 11, every discretion invested in the trustees shall be absolute and uncontrolled and every power invested in the trustees is exercisable at the trustees' absolute and uncontrolled discretion. Ms Sangster ceased to be a director of Chez Allison Pty Ltd on 13 July 2006, and ceased to be a shareholder at an unknown date. On 30 March 2006 Mr Campbell was appointed a trustee of the 2006 JAG Trust. On 30 September 2006 the Australian Business Number (ABN) of the Urban CafÉ Bangalow Partnership was cancelled. It appears that the Urban CafÉ became a part of the JAG Trust's assets in October 2006. Accordingly, the Tribunal found that the partnership of Mr Campbell, Mr Allison and Ms Sangster was dissolved on 30 September 2006, and was not relevant to the visa application of 15 May 2007 of Mr Campbell and the other appellants. 13 In considering the appellant's application the Tribunal had regard to the decision of Minister for Immigration and Citizenship v Hart (2009) 179 FCR 212 where the Full Court of the Federal Court examined the definition of "ownership interest" in s 134(10) of the Act. The Tribunal said: Although Hart considered a decision on a subclass 845 visa and the present case involves a subclass 892 visa, in both cases, the primary applicant had to establish that they had an 'ownership interest' in a 'main business'. The definitions of 'ownership interest' and 'main business; are the same for both subclasses and set out above. Therefore, the Full Court's comments in Hart on the proper construction of the definition of 'ownership interest' in section 134(10) are relevant to this case. (at [58]) 14 In applying the principles decided by the Full Court in Hart to this case, the Tribunal found: 59. The primary the applicant, in accordance with Hart, must satisfy the definition of 'ownership interest' in section 134(10) to establish an 'ownership interest' in Urban CafÉ for the purposes of clause 892.211 and for Urban CafÉ to meet the definition of 'main business' in regulation 1.11 for the purposes of clauses 892.211 and 892.213. Further, the decision in Hart establishes that that definition is not in conformity with the ordinary understanding of the general law but involves a specific legal construct for the purposes of the migration legislation. 60. The definition of 'ownership interest' is expressed in exhaustive terms. If the primary applicant does not meet any of the three alternate forms of 'ownership interest' in section 134(10), he cannot be found to have an 'ownership interest' in any of the JAG Trust businesses, including Urban CafÉ for the purposes of the regulations, irrespective of whether he would have such an interest at general law. 61. The argument in the submission is that the majority judgments in Hart required a two-step inquiry. The first step is to determine whether the primary applicant has an interest in the 'entity' carrying on the business. If this test is satisfied, the primary applicant must then be able to demonstrate that he was actively and continuously involved in the day to day decision making of the business. 62. In relation to step 1, it was submitted that the primary applicant was the legal owner of the JAG Trust businesses as a trustee of the JAG Trust with Chez Allison. The businesses were carried on by the primary applicant and Chez Allison jointly on behalf of the Trust. However, this form of interest does not fall within any of the three relevant forms of ownership interest recognised by section 134(10). As submitted, on the reasoning of Spender and Greenwood JJ, the relevant interest for the purposes of section 134(10) may be held indirectly through a trust, however the form of interest must still be as a shareholder in a company carrying on the business, or as a partner in a partnership carrying on the business, or as a sole proprietor of the business. For example, in Hart the respondent was a 20% shareholder in a company that carried on a business as a trustee. 63. On the evidence the primary applicant did not have an interest in one of the JAG Trust businesses, including Urban CafÉ as sole proprietor. There is also no evidence that the primary applicant has, in the relevant period, been a shareholder in a company that carries on the businesses. Although the shareholders of Chez Allison could meet this description as set out above, the primary applicant did hold an interest in Urban CafÉ as a partner in a partnership carrying on that business. However, as the partnership was dissolved on 30 September 2006, that ownership interest would not assist the primary applicant to satisfy the criterion in clause 862.211 as at date of application, 15 May 2007. 64. The proposed 'second step' in the submission relates to the reasoning in Hart which goes not to the question of 'ownership interest', but the requirements of regulation 1.11(1)(b) which forms part of the definition of 'main business'. The submissions about the primary applicant's involvement in the day to day management of the business may be relevant to a determination of whether any of the JAG Trust businesses are 'main businesses', however, that definition and the criteria in clauses 892.211 and 892.213 will not be met if the primary applicant cannot establish that he has an 'ownership interest' in any of the businesses, including Urban CafÉ. 65. On the evidence and for the above reasons the Tribunal finds that the primary applicant from October 2006 did not have an ownership interest in Urban CafÉ or the other businesses of the JAG Trust as a shareholder in a company that carried on those businesses, or as a partner in a partnership that carried on those businesses or as a sole proprietor of those businesses. As such the primary applicant's interest in the businesses of the JAG Trust was not an ownership interest as defined by section 134(10) of the Act. 66. On the above finding the Tribunal also finds that the primary applicant did not have an ownership interest in Urban CafÉ or the other businesses of the JAG Trust for at least 2 years immediately before the application was made on 15 May 2007 and, therefore, the Tribunal also finds that the primary applicant does not satisfies the criterion in clause 892.211.

Consideration by the Federal Magistrate 15 His Honour below observed that the applicants sought review of the Tribunal's decision on eleven grounds. In reality, these grounds were eleven different ways of expressing the same point, namely that the Tribunal erred when it determined that the relevant businesses were carried on by Mr Campbell and Chez Allison jointly on behalf of the Trust. 16 Before his Honour, Mr Campbell argued that because co-trustees must act jointly and, in law, they are seen as one, the Tribunal ought to have found that Mr Campbell was a "sole proprietor" of the JAG Trust's business within the meaning of s 134(10)(c) of the Act. 17 His Honour observed: [37] Given the nature of the JAG Trust, for the reasons expressed by me in Hart v Minister for Immigration and Citizenship, it seems to me that the trustees in this case - Mr Campbell and Chez Allison Pty Ltd - are probably the owner at law and in equity of the Trust's assets, subject at all times to the terms and conditions of the trust. That is to say, they are both proprietors of the relevant business. But that only answers half of the question - the question of proprietorship. 18 His Honour noted that paragraph (c) of the definition of "ownership interest" in s 134(10) of the Act required an applicant to be "the sole proprietor of the business", which tends against the notion that there could be more than one sole proprietor. In his Honour's view, the submissions of Mr Campbell actually meant that both Mr Campbell and Chez Allison could properly be called "the" sole proprietor of the business for the purposes of s 134(10)(c). In response to this contention, his Honour found: [40] Is Mr Campbell the sole proprietor? In my view he is not. He is one of two trustees. The trustees are bound to act jointly in the exercise of their powers and duties pursuant to the Trust. That they must act together and unanimously, however, does not mean that Mr Hart is the sole proprietor of Urban CafÉ. If Mr Campbell's argument was correct, the word the where it appears in s.134 (10)(c) should be read as a and it would be possible, for the purposes of the Act to have more than one sole proprietor of the same business. Even accepting as I do 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 (per Spender J in Hart at [27]), to construe the phrase the sole proprietor in s.134(10)(c) as wide enough to include one of two proprietors who must act jointly and who, on the interpretation contended for would both be considered the sole proprietor, is to mangle the language of the section beyond permissible limits. 19 Before his Honour, Mr Campbell further contended that during the relevant period he and Chez Allison were carrying on the Trust's business as partners and co-trustees within the meaning of s 134(10)(b) of the Act. His Honour rejected this argument, and said: [43] However, in my view no issue of a partnership between the co-trustees in fact arises. They are not carrying on the trust business as partners, but rather as co-trustees jointly. Inter se they have no rights as do partners. They hold but one office and jointly discharge the duties of that single, joint, inseparable office. 20 His Honour also accepted the submission of the Minister that the relationship between partners is contractual, and given that co-trustees occupy one, inseparable office they cannot contract with one another so that it might be said that they are discharging their duties as co-trustees in partnership (at [45]). 21 Accordingly, his Honour dismissed the application.

Appeal to the Federal Court 22 Mr Campbell appealed from his Honour's decision to this Court. Both Mr Campbell and the Minister were represented by Counsel before me. 23 In summary, the grounds of appeal are as follows: 1. The Tribunal and the Federal Magistrate misinterpreted s 134(10) of the Act. 2. The Tribunal and the Federal Magistrate misapplied the decision of the Full Court in Hart. 3. In the context of s 134(10) of the Act, Mr Campbell is a sole proprietor of the relevant business. 4. In law there is nothing to prevent partners from regulating their relationship with each other by way of a trust deed. Hence the co-trustees were also partners in the relevant business. 5. In law there is nothing to prevent persons being both co-partners and co-trustees in relation to the one business or assets. 6. On the facts as found by the Tribunal, the appellant held the relevant ownership interest as defined in s 134(10) of the Act. 24 While the appellants plead that each ground is separate and distinct, in substance the grounds of appeal may be summarised as being that, in light of Hart, Mr Campbell had an ownership interest in the business of the JAG Trust because: Mr Campbell was a sole proprietor of that business; and/or Mr Campbell and Chez Allison Pty Ltd, while co-trustees, were also partners in that business. 25 It is not in dispute that the business conducted by the JAG Trust was a "main business" as defined by the Regulations.

Hart 26 The decision of the Full Court in Hart was considered by both the Tribunal and the Federal Magistrate, and was also the subject of submissions by both Counsel before me. Before turning to the grounds of appeal, it is appropriate to consider the reasoning of their Honours in that case. 27 In summary, Ms Hart, a national of the United Kingdom, had applied to the Minister for an Established Business Visa under the Migration Act on her own behalf and that of her son. At the date of her application the relevant criteria included a requirement that Ms Hart have had an ownership interest in one or more established main businesses in Australia for the period of 18 months immediately prior to the making of the application. At all material times, Ms Hart held 20% of the shares in a company which was the trustee of a discretionary family trust. The company also conducted a cabinet-making business. Ms Hart claimed an ownership interest within the meaning of s 134(10)(a) of the Act, namely an interest in the business as a shareholder in a company that carries on the business. The Tribunal found in Ms Hart's favour, and the application by the Minister to the Federal Magistrate's Court for review of the Tribunal's decision was dismissed. The Minister appealed to the Full Court of the Federal Court. 28 By majority (Spender and Greenwood JJ) the appeal was dismissed. 29 In his judgment Spender J observed: 24 It may be accepted that, under the general law, a beneficiary of a discretionary trust has no interest, legal or equitable, in any of the assets of the trust. It is true also that, under the general law, a shareholder in a company has no interest, legal or equitable, in the assets of the company. 25 The business Northside Cabinets is an asset of Northside as trustee for the Yates Family Trust, and under the general law, a shareholder in Northside, or a beneficiary under the Yates Family Trust, does not have any interest, legal or equitable, in the assets of the business Northside Cabinets. 26 Were it not for the definition of ownership interest in s 130(10) of the Act, the applicant would not satisfy the criteria in cl 845.213(a). 27 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. 28 Putting to one side the complications thrown up by any interposing of partnerships or trusts, if a person were a shareholder in a company that had a subsidiary which carried on the business, under the general law a shareholder in the holding company would have no interest in any of the assets of the holding company, and, a fortiori, would have no interests in the assets of a company that is a subsidiary of the holding company. The definition of "ownership interest" by Parliament is meant to apply to situations which are quite outside the orthodox position explained in Salomon v A Salomon and Co Ltd [1897] AC 22. 29 As McHugh J said in Newcastle City Council v GIO General Limited [1997] HCA 53; (1997) 191 CLR 85 at 113: If the target of a legislative provision is clear, the court's duty is to ensure that it is hit rather than to record that it has been missed. 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. 30 His Honour concluded: 32 The short answer to the question on the appeal is that Parliament has spoken as to what is an "ownership interest" in relation to a business. The necessary consequence is that since Ms Hart is a 20% shareholder in a company, Northside, that carries on the business of Northside Cabinets, she has an ownership interest in the business, and the value of her ownership interest is 20% (that is to say, at least 10%) of the total value of the business. 31 In a separate judgment Greenwood J said that a beneficiary of a so-called discretionary trust enjoys no more than an expectancy, while a shareholder in a company enjoys the particular rights attached to a share but enjoys no legal or equitable interest in the assets of the company in which the share is held. His Honour then said: [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. 32 His Honour noted in this case that although the trustee conducted the cabinet-making business in the capacity a trustee of a trading trust, the business assets and the cabinet-making undertaking were conducted and operated by the company. His Honour continued: 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 Further, the definition of ownership interest ought not to be considered in isolation from other integers. The question is not simply whether a shareholding in a company confers an interest in the ownership of a company's assets. If that were the scope of the enquiry, the question would answer itself. There is a relationship between the various aspects of the criteria that must be satisfied. The applicant must demonstrate that she has had an ownership interest in a main business from 7 February 2005. The main business must be a qualifying business being an enterprise carried on for a profit-making purpose. At the date of decision the applicant must continue to have an ownership interest. The value of the applicant's ownership interest as a shareholder must be at least 10% of the total value of the qualifying business. 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. The applicant must continuously engage directly in the business and exercise day-to-day decision-making affecting the overall direction and performance of the qualifying business. 74 It is true that categories (b) and (c) in the definition of ownership interest concern a form of business engagement which involves ownership in an orthodox sense which conveys the notion of proprietorial engagement. However, it follows as a matter of orthodoxy that an interest in a qualifying business taken up by an applicant in the capacity of a partner in a partnership that carries on the qualifying business or as a sole proprietor of the business would necessarily have a proprietorial interest in the business as compared with a shareholder in a company who would not. Thus, it was necessary for the purposes of the definition to create statutorily the construct that an applicant for an Established Business Visa would have an ownership interest in a qualifying business, as a shareholder. 75 In this case, each of those integers is made out. The Tribunal found that the participants in the business had been given advice to establish the qualifying business on the basis that a company would be adopted as the business vehicle, Mr Yates would be the sole director and the company would conduct the business. The findings of the Tribunal are entirely consistent with an acceptance that the company carried on the business as trustee of the Yates Family Trust. The particular structure was adopted for asset protection purposes. The Minister says that the structural circumstance that Ms Hart simply enjoys rights in a share in a company that is a trustee of a discretionary trust, where it necessarily follows that she enjoys no legal or beneficial interest in any of the assets of the trust, disqualifies, as a matter of construction, any ownership interest arising in Ms Hart. Having regard to the statutory purpose for an Established Business Visa and the relationship between the definition of ownership interest and the criteria to be satisfied in respect of such a visa, I am not satisfied that the proper construction 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.

Consideration 33 In my view, having examined the background to the appeal and the judgments of the majority in Hart, it is clear that the appeal should be dismissed. I form this view for the following reasons. 34 First and foremost, while at every stage of the proceedings 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. It may very well be that, like Ms Hart, the business enterprise in which Mr Campbell has an interest has been structured as a trust for asset protection or other legitimate commercial purposes. However that is not a relevant factor in complying with the definition of ownership interest in s 134(10). Similarly, the fact that the general law may recognise the proprietary interest of Mr Campbell as a co-trustee is also irrelevant. 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. In that respect, the facts of this case are clearly distinguishable from those in Hart. 35 At the hearing, Mr Boccabella for Mr Campbell made extensive submissions to the effect that the Act had "bent orthodoxy" in recognising as ownership interests the interests listed in s 134(10). That this is the case was accepted by the Full Court in Hart, where the Court noted that the types of "ownership interest" recognised by s 134(10) of the Act do not necessarily accord with general law principles of ownership, and that this was particularly the case in relation to s 134(10)(a). Indeed, it is clear that 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. 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. 36 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 ll 34-35). 37 While it may well be that the business conducted by the JAG Trust is conducted jointly by Chez Allison Pty Ltd and Mr Campbell, this follows from the fact that, as a matter of law, they are co-trustees of the trust which owns the business. It does not mean that the company and Mr Campbell are "partners" as defined by the Partnership Act 1892 (NSW) with the interposition of a trust between themselves and the business. The relationship between Mr Campbell and Chez Allison Pty Ltd is governed by a deed of trust. Indeed as submitted (in my view correctly) by the Minister, and argued by Mr Campbell himself before the Tribunal, Mr Campbell holds his interest in the business of the JAG Trust directly as one of two co-trustees. 38 Further, as Jarrett FM below observed, as a matter of law: the relationship between partners in a partnership is contractual; and given that co-trustees occupy one, inseparable office, they cannot contract with one another so that it might be said that they are discharging their duties as co-trustees "in partnership". 39 In support of this proposition his Honour referred to comments of Warrington J in Ellis v Kerr [1910] 1 Ch 529 at 534. I note those comments were repeated in Napier v Williams [1911] 1 Ch 361 at 368. 40 No appealable error is apparent from his Honour's reasons in finding that Mr Campbell was not a partner in a partnership within the meaning of s 134(10)(b). 41 Further, s 134(10)(c) clearly requires the applicant to be "the sole proprietor" of a business. As Spender J observed in Hart: 6 Lord Mersey, in an oft-cited passage from Thompson v Goold & Co [1910] AC 409 at 420, said: It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do. 42 I reject the submissions of Mr Boccabella to the effect that: section 134(10)(c) of the Act can also mean "a" sole proprietor; "sole proprietor" can be a number of co-trustees; and each of those co-trustees is "a" sole proprietor. 43 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. Section 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]).

Conclusion 44 The appropriate order is that the appeal be dismissed with costs. I consider it unfortunate that Mr Campbell, who clearly has proprietary interests in a business of substance, cannot claim an ownership interest within the meaning of the Act because of the manner in which he has structured his business affairs. As Ms Kidson for the Minister conceded during the hearing, if for example Mr Campbell had owned only one share in the corporate trustee of the JAG Trust, he would have had an ownership interest for the purposes of s 134(10)(a). Not only Mr Campbell but his wife and three children are affected. That this somewhat artificial outcome follows from the statutory scheme is, however, a consequence of Parliament's recognition of certain types of interests, and not others. It is not for the Court to rewrite the relevant legislation as enacted by Parliament. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.