AUK21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 957
Federal Circuit and Family Court of Australia
(DIVISION 2)
AUK21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 957
File number(s): ADG 76 of 2021 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 16 November 2022 Catchwords: MIGRATION LAW – application for judicial review – decision of the Administrative Appeals Tribunal – where the court has been notified that the applicant is now deceased – appropriate resolution of proceedings – application dismissed with no order as to costs. Cases cited: DVC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G
Kamychenko v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1517
Kim v Minister for Immigration Citizenship Migrant Services and Multicultural Affairs [2021] FedCFamC2G 142
Phung v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 821
Division: Division 2 General Federal Law Number of paragraphs: 17 Date of last submission/s: 8 November 2022 Date of hearing: 28 September 2022 Place: Melbourne Solicitor for the Applicant: No appearance by or on behalf of the Applicant Solicitor for the First Respondent: Ms C Calabrese of Australian Government Solicitor ORDERS
ADG 76 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AUK21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
16 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The applicant’s application filed on 31 March 2021 be 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).
EX TEMPORE REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MERCURI:
Introduction
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
The circumstances in which this matter comes before the court are extremely unfortunate. On 31 March 2021, the applicant filed an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 2 March 2021 by which the Tribunal affirmed its decision of 5 February 2021 to dismiss the applicant’s application for judicial review of a decision of a delegate of the first respondent. That decision related to a refusal to grant the applicant a protection visa.
Background
By way of background, the applicant, who was a Vietnamese national, applied for a protection visa on 20 January 2020. The applicant claimed to fear harm if he were to return to Vietnam by reason of his activities promoting human rights in Vietnam and his criticisms of authorities in that country for their violation of human rights.
Decision of delegate dated 27 May 2020
By its decision dated 27 May 2020, the delegate of the Minister did not accept that there was a real chance that the applicant would suffer persecution as a result of his political activities if he were to return to Vietnam. Similarly, the delegate also concluded that Australia’s complementary protection obligations were not enlivened by the circumstances in which the applicant found himself.
Proceedings at the Tribunal
On 20 June 2020, the applicant applied to the Tribunal for a review of the delegate’s decision. The applicant was invited to attend a hearing before the Tribunal on 24 September 2020.
Applicant’s requests for adjournments
On 21 September 2020, the applicant wrote to the Tribunal seeking an adjournment of that hearing, and the reasons for the request were that the applicant had not yet secured legal representation and that he was receiving medical attention for serious liver disease. The Tribunal decided not to grant that requested adjournment.
On 23 September 2020, the applicant again sought an adjournment and provided a medical certificate. By letter dated 24 September 2020, the applicant was invited to attend a telephone directions hearing on 12 October 2020.
On 9 October 2020, the applicant again wrote to the Tribunal, stating that he was unwell and could not attend that hearing. The applicant sought a further adjournment of four to eight weeks, which was refused by the Tribunal.
On 19 October 2020, the Tribunal advised the applicant that his review application was dismissed, as he had failed to attend.
Re-instatement of application on 30 November 2020
The applicant then sought a reinstatement of that application, which was ultimately granted, and the applicant was advised on 30 November 2020.
The Tribunal then issued directions for further progress of the applicant’s application, including a further directions hearing on 16 December 2020. Unfortunately, the applicant again was unwell and unable to attend that hearing, and by letter dated 8 February 2021, the applicant was advised that the Tribunal had dismissed the applicant’s application.
Proceedings in this court
It was this decision that was the subject of the present review application to this court.
The matter was listed for directions before a Registrar of this court on 3 October 2022 to progress the application. Following notification of that directions hearing, the court was advised that, regrettably, the applicant had passed away.
Consideration
The question of how a judicial review application such as this is to be dealt with in circumstances where the applicant has passed away has been the subject of judicial consideration by Judge Kendall of this court in Kim v Minister for Immigration Citizenship Migrant Services and Multicultural Affairs [2021] FedCFamC2G 142 and DVC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 297 and the cases that are referred to in each of those decisions.
As noted in Phung v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 821 at paragraph [5] and in Kamychenko v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1517 at paragraph [15], and I quote:
… a visa is a purely personal licence and a bare visa confers no right on any other person … relief available upon on review is also personal to the applicant for review.
In those circumstances, the applicant’s rights to review the Tribunal’s decision came to an end with his death. In this case, even if the court were to find that the Tribunal’s decision was affected by jurisdictional error, the granting of relief would be futile.
Conclusion
It is in those circumstances that the appropriate course is to make the orders sought by the first respondent dismissing the application for judicial review and making no order as to costs.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Deputy Associate:
Dated: 16 November 2022
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