KCFS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 4552
•13 November 2020
KCFS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4552 (13 November 2020)
Division:GENERAL DIVISION
File Number: 2017/0664
Re:KCFS
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:13 November 2020
Place:Melbourne
The Tribunal dismisses the application under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).
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Senior Member A. Nikolic AM CSC
PRACTICE AND PROCEDURE – Application for review of visa refusal decision under
s 501(1) of the Migration Act 1958 (Cth) – whether decision reviewable – proceeding abated by reason of applicant’s death – application for review dismissed under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth)LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Law Reform (Miscellaneous Provisions) Act 1944 (NSW)Migration Act 1958 (Cth)
CASES
Re Andreatta and Commissioner for Superannuation (1991) 23 ALD 326
ASZ15 v Minister for Immigration and Border Protection [2017] FCA 203
CZF17 v Minister for Immigration and Border Protection [2017] FCA VID 721/2017
Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234
Grassby v The Queen (1989) 168 CLR 1
Harvey v Minister for Home Affairs [2020] FCA 1438
Kalejs v Minister for Justice and Customs (2001) 111 FCR 442
Kamychenko v Minister for Immigration and Multicultural Affairs (2004) 140 FCR 233
KCFS and Minister for Immigration and Border Protection (Migration) [2017] AATA 539
Phung v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 821
V120/00A v Minister for Immigration and Multicultural Affairs [2002] FCA 264REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
13 November 2020
INTRODUCTION
On 8 February 2017, the Applicant asked the Tribunal to review the Respondent’s decision to refuse him a visa under s 501(1) of the Migration Act 1958 (Cth) (the Act).
On 26 April 2017, the Tribunal, differently constituted, affirmed the visa refusal decision.[1]
[1] KCFS and Minister for Immigration and Border Protection [2017] AATA 539.
On 21 August 2017, the Federal Court of Australia ordered by consent that the Tribunal’s decision be set aside, and the matter remitted for determination according to law.[2]
[2] CZF17 v Minister for Immigration and Border Protection [2017] FCA VID 721/2017 (Tracey J).
The application was re-listed for procedural directions, which had to be vacated following advice from detention centre staff that the Applicant was hospitalised. The Applicant subsequently passed away, which was confirmed on 21 October 2020 by Mr David Brown, Acting Senior Executive Lawyer of the Australian Government Solicitor. The Tribunal has no reason to doubt the reliability of the advice provided.
ISSUE BEFORE THE TRIBUNAL
Whether the Applicant’s statutory cause of action[3] survives his death.
[3] Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234, [254] (Wilson J).
CONSIDERATION
The Tribunal only has the jurisdiction and powers given to it expressly or impliedly by statute.[4] Read together, s 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) and s 500(1)(b) of the Act are the sources of the Tribunal’s jurisdiction to review visa refusal decisions under s 501 of the Act. Whether any right or entitlement devolves upon an applicant’s death, depends on the statute enabling the Tribunal’s jurisdiction.[5]
[4] Grassby v The Queen (1989) 168 CLR 1, [15].
[5] Re Andreatta and Commissioner for Superannuation (1991) 23 ALD 326, [327] (Andreatta).
The right that the Applicant sought to vindicate in the present matter was approval of the visa he applied for, which would have enabled his release into the community. There is no provision for anyone other than a visa applicant to exercise a right of appeal following an adverse visa decision, including after a visa applicant’s death.[6] This can be distinguished, for example, from a cause of action in tort, breach of contract, or of a proprietary nature, which can survive an applicant’s death and may be transferrable to a person’s estate.[7]
[6] ASZ15 v Minister for Immigration and Border Protection [2017] FCA 203 (ASZ15), [15] (Flick J).
[7] Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 2.
In V120/00A v Minister for Immigration and Multicultural Affairs [2002] FCA 264, Kenny J reflected with approval on Andreatta, in addressing the question: ‘What was the effect of the deceased’s death on the deceased’s entitlement to review by the Tribunal.’ Her Honour responded at [53]-[55]:
53. …Where the statutory entitlement does not devolve upon another…then death extinguishes the entitlement and also the power of a relevant decision-maker with respect to it, including the power of a Tribunal upon review: cf Re Andreatta at 327.
54. …If, in this case, the deceased had been the sole applicant for review of a decision by the respondent refusing him a protection visa, then, as a matter of statutory construction, his death would have extinguished his review entitlement.
55. …The decision under review was one refusing the deceased a protection visa, and with his death the decision had no further purpose to serve. Put simply, on his death, the deceased could no longer be affected by the decision he sought to have reviewed, nor any review right he had previously invoked…There will be no valid application for review if the application has lapsed by reason of an applicant’s death.
In Kalejs v Minister for Justice and Customs (2001) 111 FCR 442 (Kalejs), Kenny J ordered the proceeding be struck out, because it had abated by reason of the applicant’s death. Her Honour held at [22] the rights invoked ‘were not of a transmissible kind.’
In Phung v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 821, Ryan J dealt with an appeal from a visa cancellation decision, in circumstances where the applicant passed away prior to the hearing. Reflecting favourably on the reasoning in Kalejs, His Honour held at [5] that a visa is a ‘purely personal licence,’ the cancellation or refusal of which ‘confers no legal rights upon anyone else.’ His Honour stated at [7] that the applicant’s death rendered the proceeding ‘without any legal object or subject matter,’ and to continue with it was ‘without purpose.’
In Kamychenko v Minister for Immigration and Multicultural Affairs (2004) 140 FCR 233, Cooper J concluded at [15] that the ‘relief available upon a review is…personal to the applicant for review.’ Reflecting favourably on Kalejs, His Honour explained at [18] that Mr Kamychenko’s right in seeking administrative review of a visa refusal decision was not transmissible because of a visa’s ‘inherent character as a personal licence.’ The proceeding lacked a subject matter because Mr Kamychenko’s right of review abated with his death.
More recently in Harvey v Minister for Home Affairs [2020] FCA 1438, Kenny J dealt with an appeal from a non-revocation decision under s 501CA(4) of the Act. Her Honour held at [2] that the statutory rights invoked ‘were not transmissible to his legal representatives, and the proceeding therefore abated.’
DECISION
The Tribunal respectfully draws on the above authorities in concluding that KCFS’s cause of action was of a personal nature and ceased to exist upon his death.
It follows that the Tribunal dismisses the application under s 42A(4) of the AAT Act.
I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC
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Associate
Dated: 13 November 2020
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