Kim v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The case of Kim v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs involves the applicant, who applied for a visa on 24 April 2014, but had the application refused on 29 June 2018. The Tribunal affirmed the decision on 20 July 2021, and the applicant applied for judicial review on 16 August 2021. However, the applicant passed away on 13 September 2021, which led to the Minister requesting the Court to strike out the proceeding. The legal issues before the Court were whether the proceedings should continue despite the applicant's death and if so, whether the Tribunal had erred in its decision.

The Court found that there is no provision in the Court’s rules regarding the appropriate procedure to be followed in circumstances where a party has died. However, Rule 1.06(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) allows the Court to apply the Federal Court Rules 2011 (Cth) if appropriate and necessary. The Court found it appropriate and necessary to apply rule 9.09(1) of the Federal Court Rules 2011 (Cth) which provides that if a party dies during a proceeding, the proceeding is not dismissed only because of the party’s death. However, in Phung v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 821, the Federal Court found that a visa is a purely personal licence and following the death of the visa-holder, any visa held by them, or to which they 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.

The Court held that 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”. The Court dismissed the application for judicial review filed by the deceased applicant on 16 August 2021.

The Court found that the appropriate order is that the proceeding be dismissed as the proceedings are now without any legal object or subject matter and would be without purpose. The Court further held that a visa, following the death of a visa-holder, is not capable of giving rise to a matter within the jurisdiction of this Court.