DVC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 297
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DVC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 297
File number: MLG 3104 of 2020 Judgment of: JUDGE KENDALL Date of judgment: 28 April 2022 Catchwords: MIGRATION – Application for judicial review – decision of the Immigration Assessment Authority – where the applicant is now deceased – appropriate resolution of proceedings – application dismissed. Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 1.06(2), 17.05
Federal Court Rules 2011 (Cth), r 9.09
Migration Act 1958 (Cth), ss 473CA, 477
Cases cited: ASZ15 v Minister for Immigration & Border Protection [2017] FCA 203
Coyle v Minister for Immigration [2019] FCCA 3173
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: 27 Date of hearing: 22 April 2022 Place: Perth Counsel for the Applicant: Ms L John Solicitor for the Applicant: Asylum Seeker Resource Centre Counsel for the First Respondent: Ms A O’Grady Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Minter Ellison Lawyers ORDERS
MLG 3104 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DVC20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
28 APRIL 2022
THE COURT ORDERS THAT:
1.The application 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).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
This is a most unfortunate matter.
The applicant in this matter was a Burmese Muslim from Yangon in Myanmar.
He arrived in Australia in June 2013 and applied for a protection visa (the “visa”) on 19 July 2017.
On 2 October 2019, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa.
The applicant’s case was referred to the Immigration Assessment Authority (the “IAA”) pursuant to s 473CA of the Migration Act 1958 (Cth) (the “Act”).
On 22 November 2019, the IAA affirmed the delegate’s decision refusing to grant the applicant the visa.
On 21 August 2020, the applicant applied to this Court for judicial review of the IAA’s decision. The applicant filed his application well outside of the 35 day time limit specified in s 477 of the Act. Accordingly, the applicant required an extension of time to pursue this proceeding.
On 6 April 2022, the Court received correspondence from the applicant’s former representative advising that the applicant had “passed away” and seeking the Court’s guidance as to how to proceed to finalise the matter. That correspondence noted that the parties had “agreed that each party [could] bear their own costs”.
Noting that no provision of the Act provides for the continuation of a proceeding after the death of an applicant seeking a visa, the Court listed the matter for a hearing on 22 April 2022.
PROCEEDING IN THIS COURT
At the hearing on 22 April 2022, the Court granted the applicant’s former representative leave to address the Court to provide details of any information available regarding the applicant’s death (noting that no death certificate had been provided).
The applicant’s former representative acknowledged that limited information was available and that unsuccessful attempts had been made to obtain a copy of the applicant’s death certificate through the applicant’s former roommate and through Births, Deaths and Marriages in Victoria.
The Minister’s representative was asked whether the Minister could obtain and provide a copy of the death certificate. Unfortunately, counsel for the Minister had no instructions in that regard.
In light of the above, the Court adjourned the hearing to allow the applicant’s former representative an opportunity to file affidavit evidence regarding the applicant’s death and to allow the Minister an opportunity to obtain a copy of the applicant’s death certificate.
Later that day (on 22 April 2022), the applicant’s former representative filed an affidavit of Laura Brianne John. That affidavit reads as follows:
1. I acted for the Applicant in relation to his immigration matters.
2.On 17 November 2021, I was informed by [omitted], Complex case worker at the Red Cross, that the Applicant had passed away a few weeks ago. [The Red Cross Officer] later informed me that the Applicant had passed away on 15 October 2021 at Dandenong Hospital and the cause of death was stroke.
3.[The Red Cross Officer] informed me that Red Cross did not have a copy of the Applicant’s death certificate and were not intending to obtain a copy. She suggested that I contact the Applicant’s roommate [omitted] to request a copy of the certificate.
4.I called [the Applicant’s roommate] on 30 November 2021 and requested a copy of the Applicant’s death certificate for the purposes of finalising his immigration matters. [The Applicant’s roommate] informed me that he would obtain the certificate and send me a copy.
5.On 10 December 2021, [the Applicant’s roommate] informed me that he had had applied for the Applicant's death certificate and would provide it once received.
6.On 12 January 2022, 26 January 2022, 7 February 2022 and 28 February 2022, I contacted [the Applicant’s roommate] requesting a copy of the death certificate. I did not receive a response.
7.I also considered whether I could obtain a copy of the Applicant’s death certificate directly from Victorian Births Deaths and Marriages. On the basis of the information on their website, I concluded that I would not have the authority to obtain a copy of the certificate as I did not hold legal instructions on behalf of the Applicant’s next of kin and did not act for the Applicant’s deceased estate.
8.On 11 March 2022, I informed the Minister’s legal representative that I had been unable to obtain a copy of the Applicant’s death certificate.
9.On 13 April 2022, I contacted Victorian Births Deaths and Marriages to confirm my understanding about the eligibility for a death certificate. I was informed that I would not be able to obtain a copy of the Applicant’s death certificate, but may be able to obtain some lesser form of documentation at their discretion.
The Minister’s representative contacted the Court on 22 April 2022 to advise that the Minister did not hold a copy of the applicant’s death certificate. The Minister did not oppose reliance being placed on the affidavit of Ms John filed on 22 April 2022.
The Court accepts the contents of Ms John’s affidavit and is satisfied that, based on the evidence before it, the applicant in this matter is now deceased.
For the reasons that follow, the Court has determined that the applicant’s application to this Court has abated and that the appropriate order is that the proceeding be dismissed.
CONSIDERATION
As discussed by this Court in Kim v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 142 (“Kim”), there is no provision in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the “FCFCoA Rules”) regarding the appropriate procedure to be followed in circumstances where a party has died.
Rule 1.06(2) of the FCFCoA Rules provides that this Court can apply the Federal Court Rules 2011 (Cth) (the “FC Rules”) if appropriate and necessary. Rule 1.06(2) of the FCFCoA Rules relevantly provides as follows:
(2)However, if in a particular case the Rules are insufficient or inappropriate, the Court may apply the Federal Court Rules or the Federal Court (Criminal Proceedings) Rules 2016 in whole or in part and modified or dispensed with, as necessary.
In this matter, as was the case in Kim, the Court considers it is appropriate and necessary to apply rule 9.09(1) of the FC Rules which relevantly provides:
9.09 Death, bankruptcy or transmission of interest
(1)If a party dies, or becomes bankrupt, during a proceeding but a cause of action in the proceeding survives, the proceeding is not dismissed only because of the party’s death or bankruptcy.
The principles and preferred approach in matters of this sort were set out by this Court in the decision in Kim (at [16] to [18]), as follows.
In Phung v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 821, the Federal Court found that:
5A visa is a purely personal licence: it is a permission under statute to remain in Australia, granted by the Minister; s 29(1). A bare visa confers no rights on any other person. Following Mr Phung’s death, any visa held by him, or to which he may have been entitled, no longer has any effect and can confer no legal rights upon anyone else that could form the subject matter of a proceeding in this Court. I adopt this statement of the applicable principle by Kenny J in Kalejs at [22];
‘With the death of Mr Kalejs, the decisions under review (whether pursuant to s 39B of the Judiciary Act or s 21(1)(a) of the Extradition Act) had no further purpose to serve and no future operation. The personal nature of the rights that the late Mr Kalejs invoked is manifest in the relief he sought. In the … [Extradition Act] proceeding, he sought orders that the Court quash the … order and direct the magistrate to order him to be released ... No-one now needs the relief sought in either proceeding. No-one is or will be any longer affected by the decisions under review.’
That principle applies with equal force to the present case. Nobody can any longer be affected in a legal sense by the impugned decisions or the outcome of any application for judicial review. To continue the proceedings would be without purpose. Further, as a visa cannot survive the visa-holder, because of its inherent character as a personal licence, these proceedings are now without any legal object or subject matter. Indeed, in Kalejs, the substantive case had been heard but not decided, and it was held that not even the estate’s interest in obtaining a favourable order for costs was effectual to preserve the cause of action. Mr Phung’s case had not even reached that stage. There is no tenable argument that a visa, following the death of a visa-holder, is capable of giving rise to a matter within the jurisdiction of this Court.
In Kamychenko v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1517, Cooper J determined as follows:
15… a visa is a purely personal licence and a bare visa confers no right on any other person... On a review the MRT may exercise all of the powers and discretions that are conferred by the Act on the person who made the decision and the MRT may affirm, vary, set aside and substitute its own decision or remit the matter for reconsideration: s 349(1) and s 349(2). That is, the relief available upon a review is also personal to the applicant for review.
16Where an applicant applies under s 39B of the Judiciary Act for relief directed at quashing the decision of the MRT and requiring the MRT to conduct the review under s 338(2) of the Act according to law, the subject matter of the proceedings is the vindication of private rights arising under the Act which concern the grant of a personal licence to remain in Australia.
17Whether or not the right in the present proceedings to seek review of a decision of the MRT (to affirm the decision of the delegate to refuse to grant to Boris Kamychenko the visa sought) is a “cause of action” which survives his death for the benefit of his estate, is a question of statutory construction: …
18In my view the rights invoked by Boris Kamychenko in applying for a visa, and seeking review of administrative decisions refusing the grant of a visa to him were not of a transmissible kind. As Kenny J said in Kalejs (at [22]): “… The personal nature of the rights that the late Mr Kalejs invoked is manifest in the relief he sought.” No visa can now issue to Boris Kamychenko because a visa cannot survive the death of the visa holder due to its inherent character as a personal licence and, as such, the proceedings now lack a subject matter. Boris Kamychenko can no longer be affected by the decision he sought to have reviewed. His right to review in this Court abated with his death…
This approach was adopted and detailed in ASZ15 v Minister for Immigration & Border Protection [2017] FCA 203 and recently applied by this Court in Coyle v Minister for Immigration [2019] FCCA 3173 and Kim.
The reasoning outlined above applies equally in the present case. The applicant’s right of review in this Court abated with his death. Even if the Court were satisfied that the IAA had erred in its decision (and that any such error was jurisdictional in nature), the granting of relief would be futile.
There would be no utility in granting relief in circumstances where there is no longer “any person affected by the decision under review”.
CONCLUSION
For the reasons outlined above, the matter will be dismissed and, as agreed by the parties, there will be no order as to costs.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 28 April 2022
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