2412413 (Refugee)

[2025] ARTA 1611

2412413 (Refugee) [2025] ARTA 1611 (9 July 2025)

DECISION AND  

REASONS FOR DECISION

Respondent:  Minister for Immigration and Citizenship

Tribunal Number:  2412413

Tribunal:General Member D Murphy

Place:Brisbane

Date:9 July 2025

Decision:Application dismissed under s 84(4)(a) of the Administrative Review Tribunal Act 2024 (Cth).

Statement made on 09 July 2025 at 12:11pm

CATCHWORDS

REFUGEE – protection visa – China – deceased – decision under review dismissed

LEGISLATION

Administrative Review Tribunal Act 2024 (Cth), s 84
Migration Act 1958 (Cth), ss 5H, 36

CASES

ASZ15 v MIBP [2017] FCA 203
Kamychenko v MIMIA [2004] 140 FCR 233
V120/00A v MIMA [2002] FCA 264

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.

DISMISSAL DECISION

1. On 17 May 2024 the applicant filed an application for review of a decision of a delegate of the Minister made on 9 May 2024 to refuse to grant a protection visa to the applicant under the Migration Act1958 (Cth) (the AFR).

2. The Tribunal listed the AFR for hearing at 11.00am on 3 July 2025 and sent a notice of hearing to the last known email address of the applicant, as well as 2 SMS messages to the applicant’s nominated telephone number. 

3. Movement checks obtained from the department concerning the applicant revealed that he had passed away prior to 27 November 2024. On 4 July 2025 the Tribunal obtained a copy of a [Police] Service Hospital UR Code Identification Statement prepared by an Intensive Care Unit Senior Registrar confirming the applicant’s identity and their death. The Identification Statement satisfies me that the applicant is dead.

4. Section 36(2) of the Migration Act 1958 enables a protection visa to be granted to a person if they are a non-citizen in Australia and they are:

   a.a refugee[1];

   b.a person entitled to complementary protection[2]; or

   c.a member of the same family unit as a non-citizen who is a refugee or a person entitled to complementary protection.

   [1] See s 5H of the Migration Act 1958

   [2] See s 36(2)(aa) of the Migration Act 1958

5. The applicant was seeking protection from returning to his receiving country. There was no ‘secondary applicant’ or member of the applicant’s family unit listed in the applicant’s protection visa application or in his AFR. 

6. Section 84(1) of the Administrative Review Tribunal Act 2024 applies where there is an application to the Tribunal for review of a decision and the applicant dies. Section 84(4) empowers the Tribunal to dismiss the substantive application for review if:

   a.the Tribunal considers there is no ‘person’[3] who can continue with the substantive application; or

   b.no application to continue with the substantive application is made within 3 months after the Tribunal becomes aware of the death of the applicant.

   [3] Section 84(2) of the Administrative Review Tribunal Act 2024 permits the following persons to apply to the Tribunal to continue with an application for review of a decision:

7. I find that there is no person who can continue with the substantive application, being the AFR. In Kamychenko v MIMIA [2004] 140 FCR 233 the Federal Court considered the nature of visas granted under the Migration Act 1958 and found at [15] that ‘a visa is a purely personal licence and a bare visa confers no right on any other person’.  At [18] the Federal Court found that the rights invoked by a person to apply for a visa and seek review of an administrative decision refusing the grant of that visa were not of a transmissible kind.

8. A protection visa application cannot survive the death of the sole applicant, due to its inherent character as a personal licence[4]. A protection visa cannot be granted to a person who is deceased as the visa would serve no useful purpose[5].

   [4] See the discussion in V120/00A v MIMA [2002] FCA 264 at [53] to [55] where it was noted that if the deceased had been the sole applicant for review of the decision to refuse a protection visa, then, as a matter of statutory construction of the Migration Act 1958, his death would have extinguished his review entitlement.

   [5] See the analysis of Flick J in ASZ15 v MIBP [2017] FCA 203 in relation to a notice of appeal filed in relation to a decision to refuse a protection visa application and the operation of Federal Court Rule 9.09.

9. In these circumstances, the Tribunal has decided to dismiss the AFR under s 84(4)(a) of the Administrative Review Tribunal Act 2024.

   
   

(a)  a legal personal representative, executor, administrator, liquidator or trustee of the applicant for the substantive application;
 (b)  a person who would have been entitled to apply for review of the decision at the time the substantive application was made.