5 STARS MERIDIAN MASSAGE PTY LTD (Migration) - [2019] AATA 2085

5 STARS MERIDIAN MASSAGE PTY LTD (Migration) [2019] AATA 2085 (7 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  5 STARS MERIDIAN MASSAGE PTY LTD
CASE NUMBER:  1730654
HOME AFFAIRS REFERENCE(S):           BCC2017/4263090 CLF2018/611
MEMBER:David McCulloch
DATE:7 March 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 07 March 2019 at 2:23pm

CATCHWORDS
MIGRATION – Employer Nomination – standing to apply for review – sponsoring company deregistered – cease to exist as a legal entity – No jurisdiction
LEGISLATION
Corporations Act 2001 (Cth), s 601AD
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 17 November 2017 made by 5 STARS MERIDIAN MASSAGE PTY LTD. For the following reasons, the Tribunal finds that it does not have jurisdiction.
Information from the Australian Securities & Investments Commission (ASIC) register shows that 5 STARS MERIDIAN MASSAGE PTY LTD was deregistered on 28 October 2018. There is no evidence before the Tribunal that the company’s registration has been reinstated with ASIC since that time.
Generally speaking, a company that is deregistered ceases to exist as a legal entity: s.601AD(1) of the Corporations Act 2001. As an application for review of this type may only be made by the relevant sponsor or nominator, the effect of deregistration is that there is no longer a person who has standing to apply for, or continue with, an application for review.
The Tribunal invited comments on its preliminary view that it did not have jurisdiction because the company had been deregistered. There was no response to the Tribunal’s letter.
The Tribunal finds that 5 STARS MERIDIAN MASSAGE PTY LTD has been deregistered and that it has ceased to exist as a legal entity. Accordingly, it follows that there is no longer a valid application for review.
DECISION
The Tribunal does not have jurisdiction in this matter.
David McCulloch
Member

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: 5 STARS MERIDIAN MASSAGE PTY LTD (Migration) [2019] AATA 2085
Case: [2019] AATA 2085
Decision Date: 7 March 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a matter involving 5 STARS MERIDIAN MASSAGE PTY LTD, which sought to sponsor an applicant for a visa. The core of the dispute concerned the validity of the sponsorship and the Tribunal's jurisdiction to hear the review application, given the status of the sponsoring company.

The primary legal issue before the Tribunal was whether it possessed jurisdiction to proceed with the review application when the sponsoring entity, 5 STARS MERIDIAN MASSAGE PTY LTD, had been deregistered and ceased to exist as a legal entity. This raised questions about the standing of a non-existent entity to pursue or maintain a review application.

The Tribunal reasoned that for a review application concerning an employer nomination to be valid, the sponsoring employer must continue to exist as a legal entity capable of making such a nomination and maintaining the application. As 5 STARS MERIDIAN MASSAGE PTY LTD had been deregistered, it no longer had the legal capacity to act as a sponsor or to be a party to the review proceedings. Consequently, the Tribunal concluded that it lacked jurisdiction to hear the matter.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal finds that 5 STARS MERIDIAN MASSAGE PTY LTD has been deregistered and that it has ceased to exist as a legal entity. Accordingly, it follows that there is no longer a valid application for review.DECISION The Tribunal does not have jurisdiction in this matter.David McCullochMember

Ratio Decidendi

Legal Principle Established

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