Kim v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 142
•15 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kim v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 142
File number: SYG 1557 of 2021 Judgment of: JUDGE KENDALL Date of judgment: 15 October 2021 Catchwords: MIGRATION – Application for judicial review – where the applicant is now deceased – appropriate resolution of proceedings – application dismissed. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth), Division 6 of Part 6 in Chapter 4
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 1.06(2), 17.05
Federal Court Rules 2011 (Cth), r 9.09
Migration Act 1958 (Cth)Migration Regulations 1994 (Cth), cl 836.227 in Schedule 2
Cases cited: ASZ15 v Minister for Immigration & Border Protection [2017] FCA 203
Coyle v Minister for Immigration [2019] FCCA 3173
Kamychenko v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1517
Phung v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 821
Division: Division 2 General Federal Law Number of paragraphs: 21 Date of hearing: 13 October 2021 Place: Perth Counsel for the Applicant: Ms G Mackenzie Solicitor for the Applicant: Parish Patience Legal & Migration Services Counsel for the First Respondent: Mr S Kovacs Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Clayton Utz ORDERS
SYG 1557 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DOO HYUN KIM
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
13 OCTOBER 2021
THE COURT ORDERS THAT:
1.Parties have leave to appear by video link pursuant to Division 6 of Part 6 in Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
2.The application be dismissed.
3.Written reasons for judgment be published from Chambers at a later date.
4.There be no order as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
INTRODUCTION
On 13 October 2021, the Court made orders in this matter in the following terms:
1.Parties have leave to appear by video link pursuant to Division 6 of Part 6 in Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
2. The application be dismissed.
3. Written reasons for judgment be published from Chambers at a later date.
4. There be no order as to costs.
The written reasons that follow are those referred to in order 3 above.
BACKGROUND
This is a most unfortunate matter.
On 24 April 2014, the applicant applied for an Other Family (Residence) (Class BU) (Subclass 836) (Carer) visa (the “visa”).
On 29 June 2018, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa on the basis that cl 836.227 in Schedule 2 of the Migration Regulations 1994 (Cth) was not met. Relevantly, the delegate was not satisfied that the sponsor (Ms Bok Yai Hong) had the capacity to understand her sponsorship obligations at the time of the application.
The applicant appeared before the Tribunal on 20 July 2021 with his representative and was assisted by an interpreter in the Korean and English language.
On 20 July 2021, the Tribunal affirmed the delegate’s decision to refuse to grant the applicant the visa. On 16 August 2021, the applicant applied for judicial review of that decision.
On 16 September 2021, orders were made by a Registrar of this Court programming the matter to hearing.
On 20 September 2021, the Court received correspondence from the applicant’s representative advising that the applicant had passed away. Attached to that email was a copy of the death certificate dated 13 September 2021 (Exhibit 1).
Later that day (on 20 September 2021), the Minister provided a proposed order to the Court requesting that the proceeding be “struck out”.
Noting that no provision of the Migration Act1958 (Cth) provides for the continuation of proceedings after the death of an applicant seeking a visa, the Court listed the matter for a directions hearing on 13 October 2021.
For the reasons that follow, the Court has determined that the applicant’s application to this Court has abated and that the appropriate order is that the proceeding be dismissed.
CONSIDERATION
There is no provision in the Court’s rules regarding the appropriate procedure to be followed in circumstances where a party has died.
Rule 1.06(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the “FCFCoA Rules”) provides that this Court can apply the Federal Court Rules 2011 (Cth) (the “FC Rules”) if appropriate and necessary. Rule 1.06(2) of the FCFCoA Rules provides as follows:
(2)However, if in a particular case the Rules are insufficient or inappropriate, the Court may apply the Federal Court Rules or the Federal Court (Criminal Proceedings) Rules 2016 in whole or in part and modified or dispensed with, as necessary.
Here, the Court considers it is appropriate and necessary to apply rule 9.09(1) of the FC Rules which relevantly provides:
9.09 Death, bankruptcy or transmission of interest
(1)If a party dies, or becomes bankrupt, during a proceeding but a cause of action in the proceeding survives, the proceeding is not dismissed only because of the party’s death or bankruptcy.
In Phung v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 821, the Federal Court found that:
5A visa is a purely personal licence: it is a permission under statute to remain in Australia, granted by the Minister; s 29(1). A bare visa confers no rights on any other person. Following Mr Phung’s death, any visa held by him, or to which he may have been entitled, no longer has any effect and can confer no legal rights upon anyone else that could form the subject matter of a proceeding in this Court. I adopt this statement of the applicable principle by Kenny J in Kalejs at [22];
‘With the death of Mr Kalejs, the decisions under review (whether pursuant to s 39B of the Judiciary Act or s 21(1)(a) of the Extradition Act) had no further purpose to serve and no future operation. The personal nature of the rights that the late Mr Kalejs invoked is manifest in the relief he sought. In the … [Extradition Act] proceeding, he sought orders that the Court quash the … order and direct the magistrate to order him to be released ... No-one now needs the relief sought in either proceeding. No-one is or will be any longer affected by the decisions under review.’
That principle applies with equal force to the present case. Nobody can any longer be affected in a legal sense by the impugned decisions or the outcome of any application for judicial review. To continue the proceedings would be without purpose. Further, as a visa cannot survive the visa-holder, because of its inherent character as a personal licence, these proceedings are now without any legal object or subject matter. Indeed, in Kalejs, the substantive case had been heard but not decided, and it was held that not even the estate’s interest in obtaining a favourable order for costs was effectual to preserve the cause of action. Mr Phung’s case had not even reached that stage. There is no tenable argument that a visa, following the death of a visa-holder, is capable of giving rise to a matter within the jurisdiction of this Court.
In Kamychenko v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1517, Cooper J determined as follows:
15… a visa is a purely personal licence and a bare visa confers no right on any other person... On a review the MRT may exercise all of the powers and discretions that are conferred by the Act on the person who made the decision and the MRT may affirm, vary, set aside and substitute its own decision or remit the matter for reconsideration: s 349(1) and s 349(2). That is, the relief available upon a review is also personal to the applicant for review.
16Where an applicant applies under s 39B of the Judiciary Act for relief directed at quashing the decision of the MRT and requiring the MRT to conduct the review under s 338(2) of the Act according to law, the subject matter of the proceedings is the vindication of private rights arising under the Act which concern the grant of a personal licence to remain in Australia.
17Whether or not the right in the present proceedings to seek review of a decision of the MRT (to affirm the decision of the delegate to refuse to grant to Boris Kamychenko the visa sought) is a “cause of action” which survives his death for the benefit of his estate, is a question of statutory construction: …
18In my view the rights invoked by Boris Kamychenko in applying for a visa, and seeking review of administrative decisions refusing the grant of a visa to him were not of a transmissible kind. As Kenny J said in Kalejs (at [22]): “… The personal nature of the rights that the late Mr Kalejs invoked is manifest in the relief he sought.” No visa can now issue to Boris Kamychenko because a visa cannot survive the death of the visa holder due to its inherent character as a personal licence and, as such, the proceedings now lack a subject matter. Boris Kamychenko can no longer be affected by the decision he sought to have reviewed. His right to review in this Court abated with his death…
This approach was adopted and detailed in ASZ15 v Minister for Immigration & Border Protection [2017] FCA 203 and recently applied by this Court in Coyle v Minister for Immigration [2019] FCCA 3173.
The above approach applies equally in the present matter.
Here, even if the Court were satisfied that the Tribunal had erred in its decision (and that any such error was jurisdictional), the granting of relief would be futile. There would be no utility in granting relief in circumstances where there is no longer “any person affected by the decision under review”.
CONCLUSION
For the reasons outlined above, the Court made orders on 13 October 2021 dismissing the application for judicial review filed by the deceased applicant on 16 August 2021.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 15 October 2021
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