Harvey v Minister for Home Affairs

[2020] FCA 1438

FEDERAL COURT OF AUSTRALIA

Harvey v Minister for Home Affairs [2020] FCA 1438

File number(s):	NSD 915 of 2018
Judgment of:	KENNY J
Date of judgment:	7 October 2020
Catchwords:	MIGRATION – Application for judicial review of a decision under s 501CA(4) of Migration Act 1958 (Cth) – proceeding abated by reason of applicant’s death – orders made that the proceeding be struck out
Legislation:	Migration Act 1958 (Cth) s 501CA(4)
Cases cited:	Kalejs v Minister for Justice and Customs [2001] FCA 1769; 111 FCR 442
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	3

ORDERS

NSD 915 of 2018

BETWEEN:

DANIEL BRYAN HARVEY

Applicant

AND:

MINISTER FOR HOME AFFAIRS

Respondent

ORDER MADE BY:	KENNY J
DATE OF ORDER:	7 OCTOBER 2020

THE COURT ORDERS THAT:

1.The proceeding be struck out, having abated by reason of the death of the applicant.

2.There be no order as to costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

KENNY J:

1. By an affidavit affirmed on 1 September 2020 by Mr Keith Maxwell Sypott, an AGS lawyer assisting with the carriage of this matter on behalf of the respondent Minister, the Court was informed of the death of the applicant, Mr Daniel Bryan Harvey. 

2. The late Daniel Harvey had previously filed an application for judicial review of the respondent’s decision not to revoke the mandatory cancellation of his Absorbed Person visa. That decision had been made under s 501CA(4) of the Migration Act 1958 (Cth). Judgment had not been delivered at the time of his death. The statutory rights invoked by his judicial review application were not transmissible to his legal representatives, and the proceeding therefore abated. In Kalejs v Minister for Justice and Customs [2001] FCA 1769; 111 FCR 442 I made orders in relevantly similar circumstances that the proceeding, which had abated by reason of the applicant’s death, should be struck out. I would make orders to the same effect in this case.

3. For the reasons stated, the orders will be:

   1.The proceeding be struck out, having abated by reason of the death of the applicant.

   2.There be no order as to costs.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kenny.

Associate:

Dated:       7 October 2020