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:
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.
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.
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
- AGLC
- Harvey v Minister for Home Affairs [2020] FCA 1438
- Case
- [2020] FCA 1438
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the Minister's decision to cancel Harvey's visa was justified under the statutory provisions, and if the court should proceed with the review despite the applicant's death. This necessitated an examination of the legal framework surrounding judicial review in the context of migration decisions, alongside the procedural implications of the applicant's death on the ongoing proceedings.
In addressing the matter, the court determined that the application for judicial review had abated due to Harvey's death, which rendered the case moot. Consequently, the court held that the proceeding should be struck out. The court emphasised the importance of procedural fairness and the necessity of maintaining a viable case for judicial review, which was no longer tenable following the applicant's death. The court also noted that, in the absence of any prejudice to the respondent, it was appropriate to make no order as to costs.
Accordingly, the court ordered that the proceeding be struck out due to the abatement caused by the applicant's death and made no order regarding costs. The decision highlights the procedural intricacies associated with judicial review applications and the impact of the applicant's death on the continuity of such proceedings.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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