Preet Brothers Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2023] FedCFamC2G 680
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Preet Brothers Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 680
File number: MLG 4093 of 2019 Judgment of: JUDGE FORBES Date of judgment: 11 August 2023 Catchwords: MIGRATION – judicial review of decision of Administrative Appeals Tribunal to refuse employer nomination application – applicant company deregistered after commencing proceeding – whether applicant has standing to maintain proceeding – where no other person has standing - whether application should be summarily dismissed Legislation: Corporations Act 2001 (Cth), s 601
Federal Circuit and Family Court of Australia Act 2021 (Cth), s 224
Migration Act 1958 (Cth), s 479, 486, 487
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 13.13
Migration Regulations 1994 (Cth), reg 5.19
Cases cited: Basbas v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1602
RFZD v Commissioner of Taxation [2023] FCA 324
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 123
Spencer v Commonwealth of Australia (2010) 241 CLR 118
T&K McKrill Holdings Pty Ltd v Minister for Immigration [2017] FCCA 2370
Division: Division 2 General Federal Law Number of paragraphs: 36 Date of hearing: 31 July 2023 Place: Melbourne Solicitor for the Applicant: No Appearance Solicitor for the Respondents: The Australian Government Solicitor ORDERS
MLG 4093 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PREET BROTHERS PTY LTD
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE FORBES
DATE OF ORDER:
11 august 2023
THE COURT ORDERS THAT:
1.Pursuant to rule 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), the application for judicial review filed on 21 November 2019 be summarily dismissed.
2.There be no order as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE FORBES
INTRODUCTION
In this proceeding the applicant, Preet Brothers Pty Ltd (Preet Brothers) seeks judicial review of a decision made by the Administrative Appeals Tribunal (the Tribunal) on 17 October 2019 to affirm a decision made by a delegate of the Minister to refuse an employer nomination application made in support of a subclass 186 visa for the position of “hairdresser”.
The application for judicial review was filed with the Court on 21 November 2019. The application was made by a Mr Singh in his capacity as a director of Preet Brothers.
Subsequent to the application for judicial review being filed, Preet Brothers has been deregistered as a company.
The Minister submits that the application for judicial review should be summarily dismissed pursuant to Rule 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the Rules) because the applicant is no longer registered as a company and does not have the legal capacity to prosecute the proceedings.
For the reasons set out below, I am satisfied that the applicant has no reasonable prospect of successfully prosecuting the proceeding. Accordingly the application should be dismissed.
BACKGROUND
In support of its application for summary dismissal, the Minister filed written submissions on 17 July 2023. The Minister also relies on the affidavit of Stanley Ho Chung Mak affirmed on 17 July 2023, which annexes various documents from the Australian Securities and Investments Commission (ASIC) regarding the applicant’s status as a registered company.
Save for its application and a supporting affidavit from its director affirmed on 21 November 2019, the applicant has not filed any further material in this proceeding.
Orders made by a Registrar of the Court on 26 March 2020 directed the applicant to file and serve any amended application and any written submissions not later than 28 days before the final hearing. The applicant did not comply with that direction.
I accept the following chronology of relevant events which is based on the written outline of submissions filed by the Minister and the affidavit of Mr Mak. This background accords with my review of the materials in the court book.
The applicant was registered as a company under the Corporations Act 2001 (Cth) on 4 May 2019.
On 26 June 2017, Preet Brothers applied for approval of a nomination of a position for an Employer Nomination (class EN) (subclass 186) visa (the employer nomination application). The position nominated was “Hairdresser” and the relevant nominee was a Mr Jagdish Kumar. Mr Kumar was an employee of Preet Brothers and he made his own visa application, a mandatory requirement of which was that it be supported by an approved employer nomination.
On 20 August 2018, a delegate of the Minister refused the employer nomination application.
On 9 September 2018, Preet Brothers, via its director Mr Singh, lodged an application with the Tribunal, seeking merits review of the delegate’s decision. Subsequently, Preet Brothers provided further documents to the Tribunal and Mr Singh attended a Tribunal hearing and gave evidence. After the hearing the Tribunal requested an explanation in relation to inconsistencies between items of information provided by the applicant, and Preet Brothers provided further information to address those concerns.
On 17 October 2019, the Tribunal affirmed the delegate’s decision. The Tribunal found that the salary paid to Mr Kumar was less favourable than the terms and conditions which would have to be offered to an Australian citizen or permanent resident performing equivalent work at an equivalent classification under the Hair and Beauty Industry Award 2010. Accordingly, the Tribunal concluded that the requirements for approval of an employer nomination application as specified in regulation 5.19(3) of the Migration Regulations 1994 (Cth) had not been met.
In a concurrent proceeding before the Tribunal, Mr Kumar’s application for a visa to take up employment with Preet Brothers in the nominated occupation of hairdresser was also rejected. In that proceeding which was heard with the Preet Brothers application, the Tribunal affirmed an earlier decision of the delegate to refuse Mr Kumar (and his family members) a visa on the basis that he did not satisfy cl 186.223 of Sch 2 of the Regulations, which required the position nominated to be supported by an employer nomination approved by the Minister.
On 21 November 2019, Preet Brothers lodged an application with the Court for judicial review of the Tribunal’s decision. The application was made by Mr Singh, in his capacity as a Director of the company.
In a separate application to the Court, Mr Kumar sought judicial review of the Tribunal’s decision which affirmed the rejection of his visa application.
On 2 October 2022, the applicant was deregistered as a company.
Proceedings before the Court
As previously mentioned, save for the initial application and a supporting affidavit from the company’s Director Mr Singh, the applicant has not filed any further material in this proceeding.
The applicant initially appointed Carina Ford Immigration Lawyers to act on its behalf in this proceeding. However, on 15 June 2023 that firm filed a notice of intention to withdraw as lawyer and forwarded correspondence to Mr Singh advising him of than intent. The correspondence to Mr Singh also informed him of his option to obtain alternative representation and put him on notice of the final hearing which had been listed for 31 July 2023. A formal notice of withdrawal was subsequently filed by Carina Ford Immigration Lawyers on 3 July 2023.
This matter was listed for hearing before me on 31 July 2023. The matter was listed to be heard concurrently with the hearing of Mr Kumar’s application for judicial review as the two matters are necessarily and inherently linked.
Prior to the hearing date, my chambers informed Mr Singh, via the email address provided by his former lawyers, of the date and place for hearing.
An affidavit filed on 27 July 2023 by Stanley Ho Chung Mak on behalf of the Minister also deposed to service of the Minister’s submissions, a sealed copy of Mr Mak’s affidavit and a sealed copy of the Minister’s amended response in which it sought summary dismissal of the proceeding.
Unsurprisingly, there was no appearance for or on behalf of the deregistered company or by its director Mr Singh when the proceeding was called on 31 July 2023.
The associated application for judicial review by Mr Kumar did proceed and is the subject of a separate judgement published this day (Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 679).
Court’s power to summarily dismiss
Pursuant to s 224(1)(g) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and r 13.13 of the Rules, the Court has power to dispose of a proceeding by summary dismissal. Specifically, the Rules provide:
13.13 Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
b)the proceeding or claim for relief is frivolous or vexatious; or
c)the proceeding or claim for relief is an abuse of the process of the Court.
The Minister accepts that as the moving party for summary dismissal, the Minister bears the onus of persuading the Court that the substantive application has no reasonable prospect of success.
It is well-established that the concept of “no reasonable prospect of success” involves a lower threshold than previous tests for summary dismissal that have required that the proceeding would necessarily fail[1]. Nonetheless, the discretion must still be exercised with caution because the Court must make an assessment in the absence of a full and complete factual matrix and argument.
[1] Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [52]-[53] per Hayne, Crennan, Kiefel and Bell JJ
Standing to prosecute the application
Preet Brothers was deregistered as a company on 2 October 2022 and at the time of the hearing the company remained deregistered.
Pursuant to s 601AD of the Corporations Act 2001 (Cth), a company ceases to exist upon deregistration and thereafter it no longer has a legal persona.
In RFZD v Commissioner of Taxation [2023] FCA 324 the effect of registration and deregistration of a company was summarised by Fuetrill J where his Honour said at [9]:
A company duly incorporated and registered under the Corporations Act is a separate legal personality and is able to sue and be sued in its own name: s 124 of the Corporations Act. A company comes into existence as a body corporate at the beginning of the day on which it is registered: s 119 of the Corporations Act. The corollary is that the company ceases to exist upon deregistration. It is no longer a legal person. It can no longer sue or be sued in its own name. A proceeding (including an appeal) cannot be commenced by or against a non-existent legal person. There is ample authority for the proposition that proceedings commenced by a company that has been deregistered (or in respect of other equivalent concepts such as dissolution under earlier or equivalent legislative schemes for corporate regulation) cannot be maintained.
The Migration Act 1958 (Cth) (the Act) also prescribes those who may bring an application for review in the Court. Sections 486C(2)(a) and 479(a) of the Act relevantly provide that only “the applicant in the review by the relevant Tribunal” can commence or continue proceedings in the Federal Circuit and Family Court of Australia (Division 2) or the Federal Court[2]. In accordance with the statutory regime comprised by sections 487, 479 and 486C no other person has standing to bring a proceeding, including those who may be affected by the deregistered company’s inability to prosecute the proceeding[3].
[2] See Basbas v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1602 at [18], [20]; also more recently Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 123 per O’Sullivan J at [86]-[101] (Raper J concurring)
[3] T&K McKrill Holdings Pty Ltd v Minister for Immigration [2017] FCCA 2370 at [25], [30]; Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs supra per O’Sullivan J
DISPOSITION
The Minister does not dispute that the applicant had standing at the time it made the application for judicial review, as it was the applicant in the Tribunal proceedings and it was a registered company at the time of the application.
However, as noted above, Preet Brothers was deregistered as a company on 2 October 2022 and at the time of the hearing it remained deregistered.
As a deregistered company, it does not have standing to prosecute the application for judicial review. The application has no reasonable prospect of success and it is open to the Court pursuant to s 224(1)(g) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and r 13.13 of the Rules, to dispose of the proceeding by summary dismissal.
The proceeding should be dismissed and I so order. The Minister does not seek costs.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 11 August 2023
1
6
0