Im v Minister for Immigration and Multicultural Affairs

[2000] FCA 215

FEDERAL COURT OF AUSTRALIA

Im v Minister for Immigration & Multicultural Affairs

[2000] FCA 215

SOK KONG IM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 650 of 1999

SACKVILLE J
1 MARCH 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 650 OF 1999

BETWEEN:	SOK KONG IM APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	1 MARCH 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The proceedings be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 650 OF 1999

BETWEEN:	SOK KONG IM APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J
DATE:	1 MARCH 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application to review a decision of the respondent to deport the applicant.  The matter was listed for hearing today. 

2. Counsel for the respondent has read an affidavit which establishes that, unfortunately, the applicant was killed on or about 31 January 2000.  Federal Court Rules 1979 (Cth), O 6 r 10, deal with the case where a party dies but a cause of action survives.  In those circumstances, the proceeding is not to abate by reason of the death. 

3. Although the matter has not been argued before me it is difficult to see how it could be said that there is a cause of action in these proceedings that survives the death of the applicant.  There may be some nice questions as to whether the common law doctrine of abatement of proceedings applies in these circumstances.  It does not seem to me to be necessary to delve into those issues.  Given that the applicant has died, it seems to me that the appropriate course is simply to terminate the proceedings by ordering that they be dismissed. 

4. The Minister does not seek any order for costs.  Accordingly, the order I make is that the proceedings be dismissed.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated:             1 March 2000

Counsel for the Respondent:	Mr R Beech-Jones
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	1 March 2000
Date of Judgment:	1 March 2000