Fernandes v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 926
•13 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fernandes v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 926
File number: SYG 2044 of 2020 Judgment of: JUDGE KENDALL Date of judgment: 13 October 2023 Catchwords: MIGRATION – Student visa – 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. Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 1.06
Federal Court Rules 2011 (Cth), r 9.09
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth), reg 2.03A and cl 500.311 in Schedule 2
Cases cited: ASZ15 v Minister for Immigration & Border Protection [2017] FCA 203
Coyle v Minister for Immigration [2019] FCCA 3173
DVC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 297
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: 34 Date of hearing: 13 October 2023 Place: Perth Applicant: No appearance on behalf of the applicant Counsel for the First Respondent: Ms A Meaney Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
SYG 2044 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ROGERIO DE PAULA FERNANDES
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
13 OCTOBER 2023
THE COURT ORDERS THAT:
1.Parties have leave to appear by video link pursuant to Division 6 of Part 6 in Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
2.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
3.The application be dismissed.
4.There be no order as to costs.
5.Written reasons for judgment be published from Chambers at a later date.
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:
INTRODUCTION
On 13 October 2023, the Court made the following orders in this matter:
1.Parties have leave to appear by video link pursuant to Division 6 of Part 6 in Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
2.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
3. The application be dismissed.
4. There be no order as to costs.
5. Written reasons for judgment be published from Chambers at a later date.
These reasons for judgment are those referred to in order 5 above. They explain why the Court determined that it was appropriate to dismiss this matter.
BACKGROUND
This matter came before the Court in the most unfortunate of circumstances.
The applicant in this matter was a citizen of Brazil (Court Book (“CB”) 2-4).
He first arrived in Australia in November 2017 (CB 38 & 87).
On 27 April 2018, the applicant applied for a Student (Temporary) (Class TU) (Subsequent Entrant) (Subclass 500) visa (the “visa”) on the basis of his de facto relationship with an associated student visa holder [name omitted] (the “applicant’s partner”) (CB 1-19). The applicant’s partner lodged her student visa application on 22 October 2016 and that visa was granted (to the applicant’s partner) on 8 November 2016 (CB 37).
On 7 June 2018, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 36-38). The delegate noted that the applicant had lodged an application to register his relationship with his partner on 29 March 2018, however, no certificate had been provided. The delegate was not satisfied, on the evidence before it, that the applicant and his partner had been in a de facto relationship for the 12-month period immediately prior to the visa application being lodged. On that basis, the delegate ultimately determined that the applicant did not meet the requirements of reg 2.03A in the Migration Regulations 1994 (Cth) (the “Regulations”) or cl 500.311 in Schedule 2 of the Regulations (CB 38).
On 25 June 2018, applicant sought review of the delegate’s decision by the Administrative Appeals Tribunal (the “Tribunal”) (CB 39-40).
On 3 August 2020, the applicant provided supporting documentation to the Tribunal (via email) (CB 59-92).
On 11 August 2020, the applicant appeared at a hearing before the Tribunal (CB 93-96).
Later that same day (on 11 August 2020), the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (CB 101-104).
On 28 August 2020, the applicant sought judicial review of the Tribunal’s decision in this Court.
On 26 September 2023, the Court received correspondence from Mills Oakley (solicitor for the Minister). That email correspondence read as follows:
We act for the first respondent in the above proceedings.
We have unfortunately been informed that the applicant in these proceedings has passed away. We attach a copy of an affidavit of Arielle Zinn filed today annexing a copy of the applicant’s death certificate.
We respectfully request that the matter be listed for a directions hearing at the Court’s convenience, where we will seek for the application to be dismissed with no order as to costs.
Attached to that email was an affidavit of Ms Arielle Bianca Zinn which was affirmed and filed in this Court on 26 September 2023 (the “Zinn affidavit”). That affidavit relevantly provided:
…
3.On 25 September 2023, the solicitors for the first respondent received an email from [the solicitor of the deceased estate of the applicant] stating that she acted for the Estate of the applicant, who had passed away almost two years ago. I requested that [the solicitor of the deceased estate of the applicant] provide me with a copy of the applicant’s death certificate, which was provided by return email on 25 September 2023. Annexed hereto and marked “A” is a true copy of the email correspondence between [the solicitor of the deceased estate of the applicant] and myself with the attached death certificate.
The death certificate provided as part of annexure “A” to the Zinn affidavit confirmed that the applicant had passed away on 10 November 2021.
Noting that no provision of the Migration Act1958 (Cth) provides for the continuation of a proceeding after the death of an applicant seeking a visa, the Court listed the matter for a directions hearing on 13 October 2023 and notified the parties accordingly.
PROCEEDING IN THIS COURT
The matter came before the Court for a directions hearing on 13 October 2023.
At that directions hearing, Ms Alana Meaney (“Ms Meaney”) appeared on behalf of the Minister. There was no appearance on behalf of the deceased applicant.
Ms Meaney relied on the Zinn affidavit (which was taken as read and in evidence) and requested that the matter be dismissed. Ms Meaney did not seek any order for costs.
The Court accepted the contents of the Zinn affidavit (including a death certificate dated 24 November 2021) and was satisfied, on the evidence before it, that the applicant in this matter is now deceased.
The Court Book filed on behalf of the Minister in this matter was tendered and referenced as Exhibit 1.
Correspondence from Mills Oakley to the Court (as outlined above) was tendered and referenced as Exhibit 2.
For the reasons that follow, the Court determined that the applicant’s judicial review application (filed in this Court on 28 August 2020) had abated and that the appropriate order was that the proceeding be dismissed. As outlined above, Ms Meaney (for the Minister) agreed with the Court’s approach in this regard.
CONSIDERATION
As explained by this Court in DVC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 297 (“DVC20”) (citing Kim v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 142 (“Kim”)), the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the “FCFCOA Rules”) do not contain any provisions describing what should occur when a party has died.
This Court notes that r 1.06(2) of the FCFCOA Rules provides that the Court can apply the Federal Court Rules 2011 (Cth) (the “FC Rules”) if appropriate or in circumstances where the FCFCOA Rules are insufficient.
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 the present matter, as was the case in DVC20 and Kim, the Court considered it appropriate (and in fact necessary) to apply r 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 DVC20 and Kim. The Court repeats the analysis provided in those cases, noting 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, Justice Cooper 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 in ASZ15 v Minister for Immigration & Border Protection [2017] FCA 203 and applied by this Court in Coyle v Minister for Immigration [2019] FCCA 3173, DVC20 and Kim.
The reasoning outlined above applies equally in this matter.
The applicant’s right of review in this Court abated with his death. Even if the Court were satisfied that the Tribunal had erred in its decision (and that any such error was jurisdictional and material in nature), granting any relief would be futile. There is no utility in granting relief in circumstances where there is no longer “any person affected by the decision under review”.
CONCLUSION
In the circumstances, the Court made orders to dismiss the matter and, with the agreement of Ms Meaney (for the Minister), there was no order as to costs.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 20 October 2023
0
6
4