Minister for Immigration and Citizenship v Hart [2009] FCAFC 112

FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Citizenship v Hart [2009] FCAFC 112

MIGRATION – appeal from the Federal Magistrates Court of Australia – consideration of whether an applicant for a Business Skills – Established Business (Residence) (Class BH) visa under the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth) has an ownership interest in a qualifying business as a shareholder in a company – consideration of the construction to be given to the term "ownership interest" – consideration of whether the nature of the interest must be proprietorial – consideration of the meaning of the term ownership interest in circumstances where the company carrying on the business in which the applicant has a shareholding conducts the business as trustee – consideration of the nature of legal and beneficial interests in the context of the provisions of the Act and Regulations applicable to the relevant visa Migration Act 1958 (Cth) ss 4, 29, 30(1), 30(2), 31, 41, 134(10) Acts Interpretation Act 1901 (Cth) s 15AA Legislative Instruments Act 2003 (Cth) s 13 Migration Regulations 1994 (Cth) regs 1.03, 1.11A(1), 1.11(1), Schedule 1, c 1104A, Schedule 2, c 845.213, 214, 215, 216 and 217 Thompson v Goold & Co [1910] AC 409, cited & quoted Fox v The Commissioner for Superannuation (1999) 167 ALR 197, cited & quoted Salomon v A Salomon and Co Ltd [1897] AC 22, cited Newcastle City Council v GIO General Limited (1997) 191 CLR 85, cited & quoted Ng v The Minister [2002] FCA 1146, cited & quoted CPT Custodian Pty Ltd v Commissioner of State Revenue (Vic) (2005) 224 CLR 98, cited CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, cited Chief Commissioner of Stamp Duties (NSW) v Buckle (1998) 192 CLR 226, cited & quoted Federal Commissioner of Taxation v Vegners (1989) 90 ALR 547, cited & quoted Octavo Investments Ltd v Knight (1979)144 C LR 360, cited & quoted Glenn v Federal Commissioner of Land Tax (1915) 20 CLR 490, cited & quoted Kennon v Spry [2008] HCA 56; 83 ALJR 145, cited SAAP v Minister for Immigration and Multicultural Affairs (2005) 228 CLR 294, cited Gartside v Inland Revenue Commissioners [1968] AC 553, cited & quoted Walter v Registrar of Titles and anor [2003] VSCA 122, cited Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, cited & quoted Commissioner of Taxation v Everett (1979-1980) 143 CLR 440, cited & quoted Buckle v Commissioner of Stamp Duties (1998) 192 CLR 226, cited & quoted Re Richstar Enterprises Pty Ltd; ASIC v Carey (No 6) (2006) 153 FCR 509, cited & quoted MINISTER FOR IMMIGRATION AND CITIZENSHIP v TRACEY KIM HART