SAPTECH ERP Consulting Pty. Ltd. (Migration)

[2018] AATA 4379

SAPTECH ERP Consulting Pty. Ltd. (Migration) [2018] AATA 4379 (26 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  SAPTECH ERP Consulting Pty. Ltd.

CASE NUMBER:  1616231

DIBP REFERENCE(S):  BCC2016/1381769

MEMBER:Jennifer Cripps Watts

DATE:26 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 26 October at 8:58am

CATCHWORDS

MIGRATION – nomination of an occupation (employer nomination) – business deregistered – no jurisdiction

LEGISLATION

Migration Act 1958, ss 140, 338, 347
Migration Regulations 1994, rr 4.02, 5.19

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application has been lodged for review of a decision of a delegate of the Minister for Immigration, dated 20 September 2016, to refuse to approve a nomination under r.5.19 the Migration Act 1958 (the Act). This decision is reviewable under s.338(9) of the Act.

2. The review application was lodged with the Tribunal on 4 October 2016.  For the following reasons, the Tribunal has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.

3. Section 347(2) and r.4.02(5) of the Migration Regulations 1994 specify who has the right to apply for review of a decision that is reviewable under Part 5 of the Act. In the case of a decision described in s.338(9) and r.4.02(4)(e), an application for review may only be made by the person to whom the decision relates (r.4.02(5)(d)). The review application was made on 4 October 2016 by Saptech ERP Consulting Pty Ltd (Saptech), the company to which the decision relates.

4. On 19 December 2016, the Tribunal received an email from Peter Baris, listed as the authorised recipient and representative of the nominating business, advising that the company, Saptech “…has been cancelled.”

5. The matter was constituted in October 2018 and the Tribunal obtained information from ASIC indicating that Saptech was deregistered as an Australian proprietary company, limited by shares, on 3 March 2018.  On the basis of this information, on 11 October 2018 a natural justice letter was sent to the applicant at the email address provided by them inviting comment as to whether their review application was valid, due no later than 25 October 2018.  The letter was returned to sender (the Tribunal), a case officer attempted to call the number on the Tribunal system that the applicant had provided when they lodged the review application and had no success.  No contact was made was made by the applicant and the Tribunal has reached the view, which it considers to be reasonable in the circumstances, that Saptech is deregistered at the time of this decision, as indicated by current ASIC records.

6. As the decision that is the subject of the review application is a decision covered s.338(9) and r.4.02(4)(e), the application for review could only be made and continue to be pursued by Saptech.  In the present case, the review application was made by a company that has been deregistered, the application is no longer an application properly made under s.347 as there is no entity that has standing to pursue the review application.  It follows that the Tribunal does not have jurisdiction in this matter.

   DECISION

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

   Jennifer Cripps Watts
   Member