ERY18 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 861
•11 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ERY18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 861
File number(s): SYG 2552 of 2018 Judgment of: JUDGE CAMERON Date of judgment: 11 April 2025 Catchwords: PRACTICE & PROCEDURE – Death of applicant – abatement of proceeding. Legislation: Law Reform (Miscellaneous Provisions) Act 1944 (NSW)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr.1.06
Federal Court Rules 2011 (Cth) rr.9.09, 9.10, 9.11
Cases cited: ASZ15 v Minister for Immigration and Border Protection [2017] FCA 203
Bham v Medical Board of Western Australia [2007] WASC 90
Bogeta Pty Ltd v Wales [1977] 1 NSWLR 139
Kalejs v Minister for Justice and Customs (2001) 111 FCR 442
Phung v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 821
Premiership Investments Pty Ltd v White Diamond Pty Ltd (1995) 61 FCR 178
R v Jefferies [1969] 1 QB 120
Scruby v Hoggan (1954) 55 SR (NSW) 2
Sen v The Queen (1991) 30 FCR 173
Smith v Williams [1922] 1 KB 158
Division: General Number of paragraphs: 16 Date of hearing: 11 April 2025 Place: Sydney Solicitor for the Applicant: No appearance by or on behalf of the applicant Solicitor for the Respondents: Mr D Cacaj (Clayton Utz) ORDERS
SYG 2552 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ERY18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
11 APRIL 2025
THE COURT ORDERS THAT:
1.The proceeding be dismissed.
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 CAMERON
INTRODUCTION
The applicant in this proceeding is deceased. He was a citizen of Sri Lanka and claimed to fear persecution there by reason of his Tamil ethnicity and perceived links with the Liberation Tigers of Tamil Eelam.
After his arrival in Australia in 2013, the applicant lodged an application for a protection visa. This was refused by a Delegate of the first respondent (Minister) on 7 June 2018. That decision was then referred to the Immigration Assessment Authority (IAA) for review. On 7 August 2018 the IAA affirmed the Delegate’s decision not to grant the applicant a protection visa.
On 11 September 2018 the applicant applied to this Court for judicial review of the IAA’s decision.
DEATH OF THE APPLICANT
The matter was called over on 29 October 2024 before a registrar who at that time was advised by one of the applicant’s sons that the applicant had died. This information was confirmed on 2 November 2024 by way of an email from a firm of solicitors who provided a photograph of the applicant’s death certificate that is sufficient to satisfy me that the applicant died on 26 December 2022.
The registrar referred the matter to me and I listed it for directions today. There has been no appearance by or on behalf of the applicant. The Minister has sought dismissal of the proceeding and, for the reasons that follow, the proceeding must be dismissed.
CONSIDERATION
Abatement
If a party to a proceeding dies, the proceeding will abate because it is defective as to parties, although the abatement only suspends the proceeding and does not put an end to it: Scruby v Hoggan (1954) 55 SR (NSW) 2 at 6. Relevantly for present purposes, the future of such a proceeding depends on whether another party can be substituted for the deceased and carry on the proceeding.
If the subject matter of the proceeding is strictly personal to the deceased, he or she cannot be replaced as a party by another person unless there is legislative provision allowing for such substitution, such as the Law Reform (Miscellaneous Provisions) Act 1944 (NSW): R v Jefferies [1969] 1 QB 120 at 124; Sen v The Queen (1991) 30 FCR 173 at 175; Premiership Investments Pty Ltd v White Diamond Pty Ltd (1995) 61 FCR 178 at 183-184. In such a case, abatement of a proceeding will be permanent: Bogeta Pty Ltd v Wales [1977] 1 NSWLR 139 at [144]-[145] per Hutley JA, Hope and Glass JJA agreeing; Bham v Medical Board of Western Australia [2007] WASC 90 at [33]-[34]. However, if the deceased can be substituted by those who are his or her privies in relation to the matter before the Court, then the Court may mould a convenient procedure to recognise that person or persons and to enable the substitution, following which the abatement of the proceeding will end and the proceeding will be able to continue between the new parties in the regular manner: Bogeta Pty Ltd v Wales at 148-149; Smith v Williams [1922] 1 KB 158.
In broad terms, if the subject of the proceeding is a personal one, the abatement of the proceeding cannot be reversed and will be permanent. However, if there is a property right involved, the deceased party may be replaced with a successor in title who can continue the proceeding in the deceased’s stead.
Procedural rules
The Federal Court Rules 2011 (Cth) provide:
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.
(2)If the interest or liability of a party passes to another person during a proceeding, by assignment, transmission, devolution or by any other means, the party or the person may apply to the Court for an order for the joinder of the person as a party or for the removal of the party.
(3)If a person is joined as a party under this rule, the start date of the proceeding for the person is the date on which the order is made.
9.10 No joinder or substitution after death of party
A person may apply to the Court for an order that, unless an order for substitution is made within a specified time, the proceeding be dismissed to the extent that it relates to relief on a cause of action if:
(a)a party dies during a proceeding and the cause of action survives the party’s death; and
(b)no order is made substituting another party for the deceased party within 3 months after the death.
9.11 Substitution of party
If a party (the new party) is substituted for another party (the old party):
(a)any thing done, or action taken, in the proceeding before the substitution has the same effect in relation to the new party as it had in relation to the old party; and
(b) the new party must file a notice of address for service.
The position set forth in r 9.09(1) is substantially the same as that prevailing at common law: cf:ASZ15 v Minister for Immigration and Border Protection [2017] FCA 203 at [9]. The procedures for the revivification of an action set out in rr.9.09 and 9.11 reflect the sort of procedures contemplated by the cases to which I have referred.
This Court’s rules, the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) do not import those provisions of the Federal Court Rules or contain equivalents. However, they do state:
1.06 Application
(1)It is intended that the practice and procedure of the Court in general federal law proceedings be governed principally by these Rules.
(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.
…
Nonetheless, it is not necessary to apply the Federal Court Rules on this occasion as the common law suffices.
Nature of proceeding
As recorded earlier, by this proceeding the deceased sought judicial review of the IAA’s decision to affirm the Delegate’s decision to refuse him a protection visa. A visa is a personal licence to enter and remain in Australia on terms and the right that the deceased had to seek judicial review of the IAA’s decision was similarly a private right personal to him: Kalejs v Minister for Justice and Customs (2001) 111 FCR 442 at 448-449 [22]; Phung v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 821 at [5]; ASZ15 v Minister at [11]-[14].
Disposition
Upon the death of the applicant the proceeding abated. Because the applicant’s right to seek judicial review of the IAA decision was personal to him and not transmissible, it is not possible to substitute another party for him and the proceeding’s defect as to parties cannot be remedied. That being so, the abatement is permanent and not a mere temporary suspension of the proceeding pending its reconstitution by the addition of proper parties in accordance with the cases: vide: Bogeta Pty Ltd v Wales at 144, or the procedure prescribed in the Federal Court Rules, were it to be called in aid.
Because the proceeding has abated permanently, the matter cannot proceed and so should be dismissed.
CONCLUSION
The proceeding will be dismissed.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 5 June 2025
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