KCFS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

The Administrative Appeals Tribunal (AAT) considered whether a statutory cause of action brought by an applicant, KCFS, survived his death. The dispute concerned the review of a visa refusal decision made under section 501 of the Migration Act 1958 (Cth). The AAT was required to determine if the applicant's right to seek review of the visa refusal decision was extinguished by his death, thereby abating the proceedings.

The Tribunal's jurisdiction to review visa refusal decisions is derived from specific statutory provisions, namely section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) and section 500(1)(b) of the Migration Act. The central legal issue was whether the right to have a visa application approved, which the applicant sought to vindicate, was a personal entitlement that did not devolve upon his death. The Tribunal considered whether such a right was of a transmissible kind, akin to causes of action in tort or contract, or if it was a purely personal licence that ceased to exist upon the applicant's demise.

The Tribunal reasoned that the right to have a visa approved is a personal entitlement that does not survive the applicant's death. Unlike causes of action that may devolve upon an estate, the right to seek review of a visa refusal is not transferable. The Tribunal relied on established case law, including *V120/00A v Minister for Immigration and Multicultural Affairs*, *Kalejs v Minister for Justice and Customs*, *Phung v Minister for Immigration and Multicultural and Indigenous Affairs*, and *Harvey v Minister for Home Affairs*. These authorities consistently hold that where a statutory entitlement is personal to the applicant, their death extinguishes that entitlement and any associated review proceedings. Consequently, the Tribunal concluded that the applicant's cause of action ceased to exist upon his death.

The Tribunal dismissed the application under section 42A(4) of the Administrative Appeals Tribunal Act, finding that the applicant's cause of action was of a personal nature and had abated due to his death.