Auservices Pty Ltd (Migration)

[2021] AATA 712

Auservices Pty Ltd (Migration) [2021] AATA 712 (15 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Auservices Pty Ltd

CASE NUMBER:  2009913

HOME AFFAIRS REFERENCE(S):          BCC2017/1474835

MEMBER:Michelle East

DATE:15 March 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 15 March 2021 at 12:39pm

CATCHWORDS
MIGRATION – Federal Circuit Court remittal – standing to apply – sponsoring or nominating company inadvertently deregistered – efforts to re-register – director disqualified – no valid application – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), s 363(1)(b)
Corporations Act 2001 (Cth), ss 601AA, 601AD(1)

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 25 May 2017 made by Auservices Pty Ltd. For the following reasons, the Tribunal finds that it does not have jurisdiction.

2. This matter was the subject of a previous decision of the Tribunal which determined it did not have jurisdiction to consider the application.  The applicant sought review with the Federal Circuit Court and on 14 May 2020 the Court concluded the decision was affected by jurisdictional error and issued a writ of certiorari quashing the decision dated 20 September 2018.  It further issued a writ of mandamus directing the Tribunal to determine the applicant’s application dated 12 June 2017 according to law.

3. Information from the Australian Securities & Investments Commission (ASIC) register shows that Auservices Pty Ltd was deregistered on 4 July 2018.

4. 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.

5. The Tribunal invited comments on its preliminary view that it did not have jurisdiction because the company had been deregistered. In response, the Tribunal received a submission from the applicant’s representative attaching an email chain from Mr Ray Xing with ASIC, a letter from Tiara Taxation & Accounting Services dated 13 May 2020 and a form 581 Application for ASIC reinstatement.

6. In the covering submission dated 22 February 2021, Mr Wong, the representative, stated the following:

   Sometime in 2018, the director of the company inadvertently deregistered the said company.  When the director realised the mistake he made, he contacted ASIC and was informed that the company was reinstated as of 26 July 2019.  Please see attached email as evidence.

   However it appears that ASIC never updated the information on their website.  Therefore, the company contacted ASIC again and was told that ASIC had undergone an internal review and discovered that the director was disqualified to hold the position as a director for any company for three years starting from 2019.  This is why the information was never updated.  Once the company was informed, the company’s accountant sent a new application with a new director who is qualified to hold the position of a director on 13 May 2020.

   From 13 May 2020 until today, the accountant has contacted ASIC on numerous occasions.  The latest information from ASIC was given to the accountant today that ASIC has not completed the process of adding the new director to the company.  ASIC has indicated that they need time to complete the whole process before the new director can be added and the information on the website can be updated.

   Based on the above reasons, I urge you to hold off on processing the current review for this particular company until further information is given to the accountant.

7. The Form 581 provides the reason for reinstatement as being, ‘The company was under court order’.  On 23 July 2019, an email from ASIC indicates the supporting documentation does not support the claim that the company should not have been deregistered.  It states ‘your documentation must also demonstrate that those legal proceedings remain ongoing, such as documents showing a future or deferred hearing date’.  The applicant responded with evidence demonstrating a hearing time of 17 April 2020.  It appears that ASIC then reinstated the company’s registration as of 26 July 2019.

8. ASIC did not then update the ASIC Register because after further enquiry, it was revealed that Mr Xing was disqualified from holding a position as a director for any company for three years from 2019.  The letter from the accountant states they have been assisting Ms Lili Dan to reinstate the company.  No further progress has been made since May 2020.

9. The Tribunal obtained a Historical Company Extract for the applicant which reflected the company being voluntarily deregistered on 4 July 2018 under section 601AA of the Corporations Act2001 (Cth). The Tribunal again checked the ASIC online register on 15 March 2021 and confirmed the status of the applicant as deregistered.

10. The Tribunal notes that the company was de-registered in July 2018 and ‘sometime in 2018’ Mr Xing realised the mistake he had made and contacted ASIC.  In its response dated 15 July 2019, ASIC referred to the documentation provided stating it did not satisfy them that the Company should not have been de-registered.  It refers to the submission that the Company should not have been deregistered because legal proceedings were underway at the time of registration.  The ASIC officer requested documentation that demonstrated those legal proceedings remain ongoing such as documents showing a future or deferred hearing date.

11. Mr Xing responded on 26 July 2019 with a court order ‘which said the hearing time is 17 April 2020’.  No details regarding the court proceedings were provided to the Tribunal.

12. The ASIC officer contacted Mr Xing on 26 July 2019 stating that the applicant was currently showing on the ASIC Register as of 26 July 2019.

13. Once the applicant became aware that the applicant company’s registration had not been reinstated they contacted ASIC and were advised that ‘ASIC had undergone an internal review and discovered that the director was disqualified to hold the position as a director for any company for three years starting from 2019.  This is why the information was never updated.  Once the company was informed, the company’s accountant sent a new application with a new director who is qualified to hold the position of a director on 13 May 2020’.

14. The submission goes on to state that the accountant has contacted ASIC on ‘numerous occasions’.  A supporting letter from the accountant dated 13 May 2020 stated that the firm ‘has assisted Ms Lili Dan to reinstate the above-mentioned company’.  An undated and unsigned Application for ASIC re-instatement Form 581 was also attached.  The covering letter also states that the form was prepared to be submitted once the estimated fee from ASIC was received.

15. Apart from the representative’s submission of 22 February 2021, no documentary evidence has been provided to the Tribunal demonstrating that the application for re-instatement has actually been submitted and the letter from the accountant falls short of making this submission.

16. The Tribunal understands the applicant’s submission that it is attempting to have the company re-registered.  However, without further information regarding why there is such a long delay, the lack of information regarding the possible legal proceedings as referred to in an email from ASIC to the previous director in an email dated 23 July 2019 and what active steps are being taken to re-register the applicant, the Tribunal is not inclined to adjourn the review under subsection 363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support its review application. 

17. In doing so, the Tribunal has taken into account the decision in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts have held that the Tribunal is not required to indefinitely defer its decision making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 regarding the reasonableness of any request for an adjournment, and the Full Federal court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915.

18. The Tribunal considered whether, in the circumstances of this case, the evidence that the applicant is actively undertaking steps to have the company re-registered is likely to be forthcoming, whether the applicant had a fair opportunity to provide the relevant information or documents already and the significance of the information or documents to the applicant.

19. The Tribunal is satisfied that it has afforded the applicant adequate opportunity to address the issue in dispute and is not satisfied that the information will be forthcoming.  The Tribunal is not disposed to delay making a decision indefinitely.

20. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further to allow the applicant more time.

21. Based on the evidence before it, at the date of its decision, the Tribunal is not satisfied that the applicant company is registered.

22. The Tribunal finds that Auservices 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

23. The Tribunal does not have jurisdiction in this matter.

    Michelle East
    Member