GREENWOOD J
36 The Migration Act 1958 (Cth) ("the Act") provides for a wide range of visas that may be granted by the Minister to a non‑citizen conferring permission to enter and remain in Australia (s 29). One object of the Act is to regulate in the national interest the coming into and presence in Australia of non‑citizens (s 4). A visa, known as a permanent visa, may entitle a non‑citizen to remain in Australia indefinitely (s 30(1)). Alternatively, a visa, known as a temporary visa, may entitle a non‑citizen to remain in Australia for a specified period (s 30(2)). The wide range of visas established under the Act in order to serve the national interest, are classified by classes (s 31). There are many different visas and each class of visa reflects one way in which the national interest might be served by granting such a visa. Each class of visa is subject to conditions imposed by either the Act or regulations made under the Act (s 41) and applications for each particular class of visa are subject to criteria about which the Minister or his or her delegate must be satisfied when considering an application.
37 Each class of visa under the Act is set out in Schedule 1 to the Migration Regulations 1994 (Cth) ("the Regulations"). Many visas are also made up of subclasses and the criteria relating to those subclasses are contained in Schedule 2 to the Regulations. One class of permanent visa is described by cl 1104A of Schedule 1 as a "Business Skills - Established Business (Residence) (Class BH)" visa (an "Established Business Visa"). That visa consists of a subclass (cl 1104A(4)) designated as subclass 845 and described as an "Established Business in Australia" subclass.
38 On 7 August 2006, Ms Tracey Hart, a national of the United Kingdom, applied to the Minister for an Established Business Visa under the Act on her own behalf and that of her son who was then aged 6. At the date of her application the criteria, relevant for present purposes, applying to a subclass 845 application by operation of Schedule 2 were these.
Subclass 845 Established Business in Australia
845.1 Interpretation
Note 1 AUD, ownership interest and qualifying businessare defined in regulation 1.03; and main businessis defined in regulation 1.11.
Note 2 As to beneficial ownership of an asset or ownership interest, see regulation 1.11A.
Note 3 There are no interpretation provisions specific to this Part.
…
845.213 The applicant:
(a) has had an ownership interest in 1 or more established main businesses in Australia for the period of 18 months immediately preceding the making of the application; and
(b) continues to have an interest of that kind.
845.214 The total value of the net assets in Australia of the applicant, or the applicant and the applicant's spouse together:
(a) is; and
(b) has been throughout the period of 12 months immediately preceding the making of the application;
at least AUD250,000.
845.215 The total value of the net assets owned by the applicant, or by the applicant and the applicant's spouse together, in the main business or main businesses in Australia:
(a) is; and
(b) has been throughout the period of 12 months immediately preceding the making of the application;
at least AUD100,000.
845.216 In the 12 months immediately preceding the making of the application, the applicant, as the owner of an interest in a main business or main businesses in Australia, maintained direct and continuous involvement in the management of that business or those businesses from day to day and in making decisions that affected the overall direction and performance of that business or those businesses.
845.217 The applicant has overall had a successful business career. …
39 Clause 845.213 uses the terms "ownership interest" and "main businesses". Regulation 1.11 defines main business in these terms:
1.11 Main business
(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, in the business is or was at least 10% of the total value 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.
40 Regulation 1.11A(1) addresses the notion that an ownership interest only includes a beneficial interest if the beneficial interest is evidenced in accordance with subregulation (2) which involves producing to the Minister a copy of any relevant document that demonstrates the source and origin of that beneficial interest, and in particular, a trust instrument.
41 By Regulation 1.03, the term "ownership interest" has the meaning given to it by s 134(10) of the Act which is in these terms:
ownership interest, 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.
42 The definition of main business uses the term "qualifying business" which by Regulation 1.03 is defined in these terms:
qualifying business means an enterprise that:
(a) is operated for the purpose of making profit through the provision of goods, services or goods and services (other than the provision of rental property) to the public; and
(b) is not operated primarily or substantially for the purpose of speculative or passive investment.
43 Accordingly, Australia's national interest can be seen from these provisions to be served, for the purposes of the Act, by granting indefinite and thus permanent residence to a non‑citizen who has for the relevant periods had the required threshold of financial commitment to an enterprise operated in Australia for the purpose of profit‑making in which an applicant plays a direct and continuous role in day-to-day management and decision‑making so as to guide the performance of that enterprise, and the nature of the interest "in relation to that business" is "an interest in the business" in any one of the three ways identified in the definition of "ownership interest".
44 On 27 March 2007, the Minister's delegate refused Ms Hart's application for an established business visa. On 26 April 2007, she applied to the Migration Review Tribunal ("the Tribunal") for review. In the course of that review the Tribunal on 9 November 2007 wrote to Ms Hart and requested her to comment on a range of matters concerning the legal and structural arrangements put in place for the conduct of the business in which she contended she held an ownership interest. Ms Hart responded by providing a statutory declaration sworn by her addressing those matters and by providing the Tribunal with documents relating to her capital contribution. Ms Hart also provided the Tribunal with a statutory declaration by her stepfather, Mr Yates, describing the establishment of the business. Mr Yates and his wife, the applicant's mother, had also contributed capital to the business. Ms Hart put correspondence from her accountant, Mr Cabrera, before the Tribunal together with financial accounts and other documents in relation to a company called Northside Cabinets Pty Ltd concerning the conduct by that company of a cabinet making business. Ms Hart gave oral evidence before the Tribunal about those matters and her role in that business.
45 The Tribunal reviewed that material.
46 The application and other documents before the Tribunal demonstrated that Ms Hart commenced her involvement in the business in November 2004. The business is called "Northside Cabinets". The business is conducted by Northside Cabinets Pty Ltd ("the company"). The principal activity of the business is cabinet‑making. The company was incorporated on 12 June 2003 and commenced operation on 16 November 2004. The Tribunal noted the evidence of Mr Yates that at the time of the acquisition of the company, advice was received by him and his family members that "for the sake of asset protection" Mr Yates was to be the sole director of the company, and his wife and stepdaughter would be shareholders in the company. There are 100 issued shares of $1.00 each. Ms Tracey Hart has 20 shares. Mr and Mrs Yates each have 40 shares. Documents were put before the Tribunal consisting of a Trust Deed relating to the "Yates Family Trust". The Deed is dated 12 June 2003. The trustee of the Yates Family Trust is the company. The Principal is Mr Yates and the Primary Beneficiaries are Mr Yates, his wife and Ms Hart. They are also the Default Beneficiaries. The Secondary and Tertiary Beneficiaries are defined in terms of persons who bear a relevant relationship (spouse, child, etc) to the Primary Beneficiaries, and such nominated classes of persons who may be appointed by the Principal from time to time. The company as trustee by cl 3.1 of the trust instrument is required to determine in each year the income of the trust allowing for all relevant expenses.
47 Clause 3.3 of the trust instrument provides:
The Trustee may at any time prior to the expiration of any year determine with respect to all or any part of the Income of the Trust Fund derived during any such year:
(a) to pay, apply or Set Aside such Income or any part of it for all or one or more of the Primary Beneficiaries living or in existence at the time of the determination;
(b) to pay, apply or Set Aside such Income or any part of it for all or one or more of the Secondary Beneficiaries living or in existence at the time of the determination;
(c) to pay, apply or Set Aside such Income or any part of it for all or one or more of the Tertiary Beneficiaries living or in existence at the time of the determination;
(d) to accumulate such Income or any part of it,
provided that if the Trustee has not by the Thirtieth (30th) day of June in each such year exercised its discretion to pay, apply, Set Aside or accumulate the whole or any part of such Income then the Trustee shall hold it on trust absolutely for the Default Beneficiaries.
48 By cl 3.5, any amount set aside for any beneficiary shall not form part of the trust fund but shall be held upon trust for that beneficiary absolutely with a power in the trustee pending payment to invest or apply that amount for the benefit of the beneficiary in the manner provided for in the instrument in relation to the trust fund. Clause 3.7 provides for vested interests in these terms:
3.7 Vested Interest
It is declared that each of the Beneficiaries in whose favour:
(a) the Trustee may pay, apply, or Set Aside the Income for that year; or
(b) upon the failure of the Trustee to exercise his discretion to pay, apply, Set Aside or accumulate under clause 3, shall be entitled to share in the Income for that year as is provided in this Deed,
SHALL have an immediate and indefeasible vested interest in that part of the Income for that year to which that Beneficiary is entitled. It is the express intention of the Settlor that each of the Beneficiaries shall be presently entitled to their share of such Income where the Trustee shall pay, apply or Set Aside the Income or, failing the exercise of the Trustee's discretion to pay, apply, Set Aside or accumulate, such Beneficiary shall be entitled to share in such Income as provided in this Deed and shall be presently entitled to his or her or their share of such Income.
49 Clause 3.7 recognises that at the relevant date, 30 June in each year, a beneficiary will become presently entitled to the relevant income for that year.
50 By cl 5.1, the trustee has the power, to be exercised in its absolute discretion, to apply the whole or any part of the trust fund to or for the benefit of all or any one or more exclusively of the others, of the beneficiaries as the trustee thinks fit. Clause 7 confers a power on the principal to appoint any person to be a beneficiary of the trust and the principal may remove a trustee from office.
51 Financial accounts for the company as trustee of the Yates Family Trust were put before the Tribunal. The notes to the accounts show that in the financial year ending 30 June 2005, Ms Hart introduced capital of $116,671.00 and received drawings of $3,098.00 resulting in a carried-forward balance into the financial year ending 30 June 2006 of $113,573.00. In that year Ms Hart received drawings of $9,659.00 resulting in a current account balance in her favour at 30 June 2006 of $103,914.00. In the financial year ending 30 June 2005, Mr Yates contributed capital of $143,741.00 and received drawings of $27,833.00 resulting in a carry‑forward contribution into the financial year ending 30 June 2006 of $115,907.00. In the financial year ending 30 June 2006 Mr Yates received a share of the profit of the business and was paid drawings resulting in a current account balance of $81,498.00 at 30 June 2006. His wife, Beryl Yates, contributed capital of $143,741.00 in the financial year ending 30 June 2005, obtained drawings and had a carry‑forward balance into the financial year ending 30 June 2006 of $122,363.00. She received a share of profit in that financial year and was paid drawings resulting in a current account balance at 30 June 2006 of $108,961.00.
52 In the financial year ending 30 June 2006, the gross profit from trading carried on by the trustee in its capacity as trustee of the Yates Family Trust was $854,653.00. Gross sales were $1,586,183.00. The expenses were $825,641.00. The net profit for the financial year ending 30 June 2006 including minor additional income was $39,753.00. In the course of conducting the business in the financial year ending 30 June 2005 the trustee paid salary and wages to employees of $248,101.00 and superannuation contributions of $19,914.00, among other expenses. In the financial year ending 30 June 2006, the trustee paid for contract work to be done of $100,522.00 and paid salaries and wages to employees of the company in conducting the business of $458,504.00. Superannuation contributions made on behalf of those employees amounted to $38,964.00. The company's accounts and financial documents show that 11 men and women were employed by the company in undertaking the cabinet‑making business. The records also show that the trustee in its trading capacity paid tax pursuant to business activity statements in the periods ending 25 November 2005, 28 February 2006, 12 May 2006 and 11 August 2006 of $38,104.00, $45,403.00, $25,842.00 and $41,442.00 respectively.
53 Accordingly, the cabinet‑making enterprise conducted by the trustee in its capacity as trustee of the Yates Family Trust provided 11 people with employment, provided contract work to others, generated significant sales, produced a profit in the years ending 30 June 2005 and 30 June 2006 and accounted for tax.
54 In evidence before the Tribunal, Ms Hart said that at the commencement of the business, five people were employed and at the date of her evidence, 14 people were employed including three installers/fitters, five or six cabinet‑makers, one machinist and five people in the office including Mr Yates and Ms Hart. Ms Hart gave evidence of her involvement in the day‑to‑day business which involved quoting on jobs, organising construction and installation, pursuing the completion of orders, interviewing and employing new staff and other functions.
55 The Tribunal concluded that Ms Hart was able to provide the Tribunal with a comprehensive and clear explanation of the operation of the business. The ultimate findings of the Tribunal are contained in three paragraphs in these terms.
Overall, the available documentation [to which reference is made in these reasons], together with the evidence of Ms Hart, Mr Yates and Mr Cabrera provided at [the] hearing satisfied the Tribunal that Ms Hart has a 20 per cent shareholding in Northside Cabinets Pty Ltd and that she is actively involved in the operations of that business, both in the management of the business, its overall direction, and its day‑to‑day operations.
Northside Cabinets Pty Ltd is owned by the Yates Family Trust. Northside Cabinets Pty Ltd is the trustee of the Yates Family Trust and Mr Yates [is[ the principal of the trust. Also, during the relevant period Mr Yates was the only director of the company. However, the Tribunal is satisfied that the company was structured in this way for asset protection purposes and it is not how the business is managed on a day‑to‑day basis. It was clear to the Tribunal that Ms Hart's role in the business during the relevant period involved her directly managing the business day‑to‑day and making decisions affecting the overall direction and performance of the business.
The Tribunal is therefore satisfied that Ms Hart has had, and continues to have an established main business in Australia, being Northside Cabinets Pty Ltd, for the period 18 months immediately before the making of the application [7 August 2006]. The business is a qualifying business as it is operated for the purpose of supplying goods to the Australian markets. The applicant has a 20 per cent shareholding, above the required 10 per cent and the Tribunal is satisfied that she is actively involved in all relevant aspects of the business. As a result, the Tribunal is satisfied that Ms Hart satisfies the provisions of clause 845.213.
56 The Tribunal remitted Ms Hart's application to the Minister for reconsideration coupled with a direction that Ms Hart met the criteria of cl 845.213 for a subclass 845 visa.
57 It seems clear from the findings of fact made by the Tribunal based on its reference to the "available documentation" and the oral evidence that the Tribunal found that Northside Cabinets Pty Ltd in its capacity as trustee of the Yates Family Trust conducted the "operations of [the] business" in which Ms Hart was found to have a management role in the overall direction and day‑to‑day operation of that business. Ms Hart was found to have a 20% shareholding in that company. The Tribunal found that although the company was "structured" on the footing of a business conducted by a company as trustee of a family trust with Mr Yates as the only director of the company and principal of the trust, that structure was adopted on advice for "asset protection purposes". These brief findings of the Tribunal are entirely consistent with a finding that the business of Northside Cabinets was conducted by Northside Cabinets Pty Ltd as trustee of the Yates Family Trust. The Tribunal found however that such a structure did not reflect the day‑to‑day management of the business. The findings of fact reflect active engagement by Ms Hart "in all relevant aspects of the business" which was found to be a qualifying business.
58 The Minister sought judicial review before the Federal Magistrates Court of Australia to set aside the Tribunal's decision on grounds of jurisdictional error. The Minister contended before the Federal Magistrates Court that the Tribunal had fallen into jurisdictional error by failing to refer to the terms of the Trust Deed which necessarily were a relevant consideration in determining whether Ms Hart enjoyed any "interest" as a beneficiary for the purposes of the trust instrument in any of the assets, capital or income of the business enterprise, so as to determine the nature of her contended ownership interest. The Minister also contended that the Tribunal had failed to consider "the nature of the trust, and specifically whether it was a fixed trust or a discretionary trust". The third ground of error was said to be a failure to have regard to a policy document described as a "Procedures Advice Manual 3". The principal contention advanced by the Minister before the Federal Magistrates Court was that the Tribunal had made a clear error of law in the application of the statutory test as the Tribunal had equated a shareholding in the trustee of a discretionary trust with an ownership interest in the assets of the trust.
59 The Federal Magistrates Court dismissed the Minister's application.
60 Federal Magistrate Jarrett concluded that in his view Northside Cabinets Pty Ltd carried on the cabinet‑making business of Northside Cabinets and did so as trustee of a trust. FM Jarrett observed that the company is entitled to the income of the business and liable for its debts subject to its rights, duties and obligations under the Trust Deed. FM Jarrett accepted the Minister's submissions that the beneficiaries of the trust had no interest in the trust assets other than a right to the due administration of the trust. At [20], FM Jarrett considered that the "relevant inquiry in the case before me is whether the company in which there is the necessary shareholding carries on the relevant business". FM Jarrett noted the observations of Dowsett J in Ng v The Minister [2002] FCA 1146 to the effect that an ownership interest necessarily involved a proprietorial interest rather than "merely being employed in the administration of the business which appears to have been the involvement of the trustee [in the events before Dowsett J]".
61 FM Jarrett concluded that the decision in CPT Custodian Pty Ltd v Commissioner of State Revenue (Vic) (2005) 224 CLR 98 informed the resolution of the issues before the learned Federal Magistrate. That was so because FM Jarrett understood CTP Custodian as determining that where the legal title to an asset is vested in a discretionary trustee, as in this case, with no identified beneficial interest vested in a designated beneficiary, the bundle of legal and beneficial interests in the relevant business assets resided in the trustee and thus Ms Hart held an ownership interest through her shareholding in an entity that held all relevant proprietary interests.
62 The Minister relies upon 10 grounds of appeal in seeking to demonstrate error on the part of the learned Federal Magistrate. However, in the course of submissions counsel for the Minister noted that these grounds "boil down" to the following propositions:
(a) the learned Federal Magistrate erred in finding that the necessary "ownership interest" could be established merely by the visa applicant establishing ownership of shares in a corporate trustee company to a discretionary trust which had as one of its assets the relevant business, without regard to whether the visa applicant had any beneficial interest in or control over the trust assets rather than following the reasoning of the Federal Court in Ng to the effect that establishing an "ownership interest" required some proprietorial involvement of the visa applicant in the business (this covers grounds 1, 2, 3, 4, 5 and 6 of the notice of appeal).
(b) the learned Federal Magistrate erred in failing to consider:
(i) the terms of the trust instrument and the Procedures Advice Manual (ground 8);
(ii) the fact that the interpretation favoured by the learned Magistrate would:
· be inconsistent with other provisions of the Act and the Regulations as well as the legislative intention (grounds 7 and 9(b) of the notice of appeal); and
· lead to absurd results (ground 9(a) of the notice of appeal).
63 The Minister's essential proposition is that Federal Magistrate Jarrett erred by failing to find that no ownership interest arose in Ms Hart, as she exercised no "proprietorial involvement" over the trust assets either by way of control over those assets or by reason of any beneficial interest in them. Ground 2 concerns contended error arising out of a failure on the part of FM Jarrett to consider the terms of the trust instrument, the Procedures Manual and the relevant regulations.
64 It is undoubtedly true that a beneficiary of a so‑called discretionary trust enjoys no more than an expectancy. Such a beneficiary has no ownership interest either legal or equitable in any of the assets of the trust subject to a number of considerations. The beneficiaries under the Yates Family Trust did not enjoy any vested beneficial interest other than in the income at the relevant date upon the exercise of the power. The beneficiaries represented classes of objects of the discretionary power conferred upon the trustee by the trust instrument. Ms Hart was one of the class of objects to be considered in any potential distribution and in that capacity she had a right in equity to the due administration of the trust. That right was accompanied by at least a fiduciary duty on the part of the trustee to consider whether and in what way the trustee should exercise the power conferred upon it.
65 It is equally true that 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. Therefore, it would be anomalous to describe a shareholder as having an ownership interest in the assets of a company or a business conducted by a company. In the modern world of shareholder representative groups, shareholders in a market sense in listed entities have a real interest in the capacity of a company to generate a return on assets as it affects the share price. However, the Parliament of the Commonwealth must be taken to have understood the orthodoxy of the position that a shareholder enjoys no legal or beneficial interest, or put another way, no ownership interest in the assets deployed by a company in conducting its business undertaking whether a listed entity or a proprietary family company.
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. Presumably, the Parliament intended that a non‑citizen who invests the relevant threshold of capital or financial support in a qualifying business for the relevant period and continuously engages in the management and decision‑making affecting the overall direction and performance of the business, would by doing so, serve Australia's national interest in encouraging the development and expansion of enterprise business activity which might be productive of employment and the transmission of goods and services into a relevant market. An element of serving the national interest through enabling non‑citizens to obtain a permanent "Business Skills - Established Business (Residence) (Class BH)" visa involves, in the statutory context of such a visa, treating an applicant who has a shareholding in a qualifying business within the notion of a main business as that term is understood, as having an ownership interest in that business.
67 The resolution of this appeal is to be found in the Tribunal's findings of fact and the application in the context of the Act generally, of the statutory construct adopted by the Act in defining an ownership interest (CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408).
68 The factual position is this.
69 The company carries on a business undertaking of cabinet- making. It makes and sells cabinets. It generated sales of $1,586,183.00 in the financial year ending 30 June 2006 in doing so. In order to do so, it acquired goods and services in 33 categories of subject matter of $825,641.00 including labour services from 11 men and women. It uses plant and equipment which it depreciates to manufacture cabinets. Some of the employees are cabinet-makers. At least one employee is a machinist. The company carries on these trading activities for the purpose of making a profit and did so in the financial years ending 30 June 2005 and 30 June 2006. The entire trading undertaking and field of transactions comprising the cabinet-making business is that of the company. Ms Hart has a 20 per cent shareholding in that company, engaged in that business undertaking. She therefore has an ownership interest in the business of cabinet-making as a shareholder of the company by operation of the definition in s 134(10) of the Act.
70 It is true that the company carries on the cabinet-making business in a particular capacity. It operates the business in its capacity as a trustee of a trading trust. The instrument places that trust within that category of trust often called a discretionary trust, a term which seems to have "no fixed meaning" and is "used to describe particular features of certain express trusts" (Chief Commissioner of Stamp Duties (NSW) v Buckle (1998) 192 CLR 226 at 234) or a "purely discretionary" trust (Federal Commissioner of Taxation v Vegners (1989) 90 ALR 547 at 552). In that capacity, although the class of objects of the trust enjoy no vested beneficial interest in the assets of the trust, they remain the objects of the discretionary power in relation to any distributions and enjoy the right in equity to due administration of the trust coupled with a fiduciary duty in the trustee to consider whether and in what way the trustee should exercise the power conferred on it under the trust instrument. If the company in carrying on the business activity of cabinet-making does so in conformity with the duties and obligations as trustee, the trustee is entitled to an indemnity out of the assets of the trust in respect of liabilities arising out of the field of business transactions it has entered into. The right of indemnity confers a "beneficial interest" in the trust assets in the trustee (Octavo Investments Ltd v Knight (1979)144 C LR 360 at 367 per Stephen, Mason, Aickin and Wilson JJ.)
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 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.
76 Ms Hart contends that a further consideration involves an acceptance of the proposition that in the case of a discretionary trust where no beneficiary has any vested entitlement, the legal and beneficial interests in the assets of the trust vest as a bundle of rights and interests in the trustee until a particular power is exercised which might effect the crystallisation of a vested beneficial interest in an object of the trust (Glenn v Federal Commissioner of Land Tax (1915) 20 CLR 490; CPT Custodian Pty Ltd v Commissioner of State Revenue (Vic) (2005) 224 CLR 98 and Kennon v Spry [2008] HCA 56; 83 ALJR 145). Therefore, it follows, it is said, that by reason of the right in equity of Ms Hart to due administration of the trust coupled with a fiduciary duty on the part of the trustee to consider whether and in what way the trustee should exercise the power conferred by the trust instrument; the right of indemnity the trustee enjoys out of the trust assets; and the collection of legal and beneficial interests in the assets of the trust held by the trustee pending the due performance of the trustee's duties, Ms Hart holds a share in a company that, in any event, has interests which might properly be described as "proprietorial" interests. Although the authorities seek to dispel notions which have been described as elevated to "dogma" to the effect that where ownership is vested in a trustee, equitable ownership must necessarily be vested in someone else, the consideration of the nature of ownership in that bundle of rights and interests at any point along the continuum of the exercise of a power conferred on a trustee, has been considered in the context of specific statutory provisions whether arising under the tax legislation of the Commonwealth, the Bankruptcy Act 1966 (Cth), the Family Law Act 1975 (Cth) or other legislation. It seems to me however that the question to be determined in the resolution of this appeal must be determined in the context of the findings of fact made by the Tribunal and the application of the particular statutory provisions applying to an Established Business Visa, to those facts.
77 As to the question of the Tribunal's consideration or otherwise of the "Procedures Advice Manual 3", it seems to me that the Tribunal made enquiry of Ms Hart by its letter of 9 November 2007, of matters the subject of the Manual, that is, the apparent adoption of a structure that involved the company conducting the business in the capacity of trustee of the Yates Family Trusts; the use of a "business trust" more generally; ownership of the relevant assets; the role of Mr Yates as Principal; and the relevance of those issues to the question of whether Ms Hart had at the relevant date an "ownership interest" for the purposes of the Act. The reasoning of the Tribunal addresses those issues and findings were made about them. The subject matter of the Manual was therefore taken into account.
78 To the extent that the Minister says that the Tribunal failed to apply the Manual and failed to find in conformity with the Manual that a shareholding in a company acting as trustee of a trust confers no ownership interest in the relevant business for the purposes of the Act, the question is whether in the context of the particular findings of fact, Ms Hart had an ownership interest in a relevant business as shareholder in a company that carried on that business. If the Manual seeks to bring about a result that Ms Hart does not have an ownership interest in the business of cabinet-making as a shareholder in a company that carries on that business by deploying assets used in the business and engaging in the field of transactions necessary to undertake the business, because the company is a trustee of a discretionary trust, the Manual, to that extent, is inconsistent with the Act and Regulations.
79 Accordingly, having regard to these observations, I am not satisfied that there is any demonstrated error on the part of the learned Federal Magistrate in concluding that the Tribunal did not fall into jurisdictional error in its construction and application of the provisions of the Act and Regulations. The learned Federal Magistrate did not, in my view, engage in error in dismissing the application for judicial review.