Super Ute Pty Ltd (Migration)

[2023] AATA 3164

Super Ute Pty Ltd (Migration) [2023] AATA 3164 (18 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Super Ute Pty Ltd

CASE NUMBER:  2100523

HOME AFFAIRS REFERENCE(S):          BCC2020/2917370

MEMBER:Alan McMurran

DATE:18 September 2023

PLACE OF DECISION:  Sydney

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

Statement made on 18 September 2023 at 11:16am

CATCHWORDS  
MIGRATION – Employer Nomination – standing to apply for review – applicant 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

1. This is an application made by Super Ute Pty Ltd (the applicant) lodged 17 January 2021, for review of a decision made by a delegate of the Minister for Home Affairs on 5 January 2021 refusing the nomination.

2. The applicant seeks to nominate Andries Bartholomeus Burger (the nominee), a citizen of South Africa, for a Subclass 187 permanent visa in the Regional Sponsored Migration Scheme. The applicant is unrepresented for this merits’ review application.

3. For the following reasons, the Tribunal finds that it does not have jurisdiction.

   Background

4. Information from the Australian Securities & Investments Commission (ASIC) register shows that the applicant was deregistered on 15 January 2023. There is no evidence before the Tribunal that the company’s registration has been reinstated with ASIC since that time.

5. Generally speaking, a company that is deregistered ceases to exist as a legal entity: s 601AD(1) of the Corporations Act 2001 (Cth). 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.

6. On 7 August 2023, the Tribunal sent a natural justice letter to the applicant and invited comments on its preliminary view that it did not have jurisdiction because the company had been deregistered. The letter states: “Generally speaking, once a company is deregistered it ceases to exist as a legal entity: s.601AD(1) of the Corporations Act 2001. Accordingly, it appears the review applicant has ceased to exist, and we no longer have jurisdiction in this matter.”

7. In response, the Tribunal received extensive replies from the applicant’s director, who is also the nominee, and documentation concerning the applicant’s deregistration. The director set out reasons in its responses why the applicant had been deregistered and how the nominee had set about a restructuring of related corporations in order to “consolidate some of our business activities in an effort to save some expenditure costs”.

8. The response from the director confirms the available information that the applicant has been deregistered and ceased trading. There is no information that any application has been made seeking a court order for reinstatement or that it is intended that the applicant will seek to become registered again. There is no information before the Tribunal that the applicant seeks to continue the nomination or that there is another and separate nomination application in place for the nominee by another nominator and which is pending.  

9. The Tribunal has noted the nomination and visa histories outlined by the director in his submission. This includes the decision by the Department on 12 September 2023 to cancel the applicant’s approval as a standard business sponsor. The Tribunal has also considered the director’s submission in his email of 12 September 2023, where he asserts that because “the ABF acknowledge that there is an undisputed relationship between the aforementioned companies”, together with a company restructuring brought on by the pandemic and matters “totally out of our control”, that the nomination merits’ review process should be allowed to continue so as not to preclude the director as the nominee from being able to continue to pursue the related visa application[1] and which will involve significant cost in addition to what has already been invested in the process, in order for another corporation (nominator) to start the nomination process again. The Tribunal rejects those submissions.

   [1] Tribunal case 2102016 for Andries Bartholomeus Burger

10. The Tribunal has noted the director’s concerns and potential issues arising from a failed nomination which must undoubtedly in the circumstances outlined impact the director personally as the nominee. The Tribunal has some empathy for the director’s predicament. The Tribunal, however, has no discretion under the Act or Regulations to waive the jurisdiction requirement in order for it to proceed with a review.

11. The Tribunal finds on all the available information that the applicant, Super Ute 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

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

    Alan McMurran
    Member