Radburn and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2022] AATA 2158
•8 July 2022
Radburn and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2158 (8 July 2022)
AppID: Radburn and Minister for Immigration, Citizenship and Multicultural Affairs
MatterType: Migration
Division:GENERAL DIVISION
File Number: 2022/4477
Re:Barry Radburn
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:8 July 2022
Place:Perth
The application is dismissed pursuant to section 42A(4) of the AAT Act on the basis that the Cancellation Decision is not reviewable.
.................[Sgd].......................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of the Applicant’s Visa – where the applicant is now deceased – appropriate resolution of proceedings – discussion of appropriate basis upon which the application can be dismissed – application dismissed under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) on the basis that it is not reviewable by the Tribunal
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 30(1A), 42A(4), 42B(1), 42B(1)(a), 42B(1)(b), 43(1)
Administrative Appeals Tribunal Regulation 2015 (Cth)
Migration Act 1958 (Cth) ss 501(3A)
CASES
Andreatta and Commissioner for Superannuation [1991] AATA 532
ASZ15 v Minister for Immigration and Border Protection [2017] FCA 203
DVC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 297
Kamychenko v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1517
Mavris and Commissioner of Taxation [2018] AATA 4130
Phung v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 821
Rundle and Civil Aviation Authority [2002] AATA 349
Stanley and Minister for Foreign Affairs [2018] AATA 982
Thiel and Registrar of Marriage Celebrants [2015] AATA 872
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
8 July 2022
THE APPLICATION
On 2 June 2022, the Applicant lodged an application in the Tribunal seeking review of a decision of a delegate of the Respondent dated 26 May 2022 (Cancellation Decision) not to revoke the cancellation of his Absorbed Person visa (Visa). The Applicant provided a statement of reasons to the Tribunal in support of his application on 7 June 2022.
The Applicant’s Visa was cancelled on 21 June 2021 under s 501(3A) of the Migration Act 1958 (Cth) because he did not pass the character test. This was because he had a substantial criminal record and was serving a full-time sentence of imprisonment of four years and eight months for six offences of “indecent dealing of a child under 14 years”.
DEATH OF THE APPLICANT
After the filing of his application and before a directions hearing or a substantive hearing could be held, the Applicant died.
An email was sent to the Tribunal’s Registry by a Status Resolution Officer from the WA Detention Status Resolution section of the Department of Home Affairs on 14 June 2022 at 1.53PM. This email stated that the Applicant had died earlier that day.
I have been provided with a copy of an Assessment of Extinction of Life (WA) form (Assessment) from Hall & Prior Health and Aged Care Group (Group) dated 14 June 2022. In that Assessment a registered nurse declared the Applicant’s death at 11.59AM on 14 June 2022. That declaration was witnessed by an employee of the Group. I am therefore satisfied of the death of the Applicant.
There is no provision in the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), nor in the Administrative Appeals Tribunal Regulation 2015 (Cth) regarding the appropriate procedure to be followed where an applicant has died. Nor do the powers of dismissal in the AAT Act cover the circumstance of the death of an applicant.
This raises the issue of the appropriate course of action that should be taken by this Tribunal.
LEGAL PRINCIPLES REGARDING THE DEATH OF A VISA-HOLDER APPLICANT
Several judicial authorities provide guidance about what happens to a Visa, and to judicial proceedings when a party who is a vias-holder dies.
In Phung v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 821 (Phung) at [5] the Federal Court observed that “a visa cannot survive the visa-holder, because of its inherent character as a personal licence” and that following the death of the visa-holder, “these proceedings are now without any legal object or subject matter”.
In Kamychenko v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1517 (Kamychenko), Cooper J stated that: “a visa is a purely personal licence and a bare visa confers no right on any other person” at [15]. His Honour further stated, at [18]:
… 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. [The Applicant] can no longer be affected by the decision he sought to have reviewed.
Put another way, even if the Tribunal was able to proceed to a hearing, it “could give rise to no meaningful relief” because it is only the Applicant who could benefit from the proceedings. Thus, the death of the Applicant “brings the proceeding to an end” (ASZ15 v Minister for Immigration and Border Protection [2017] FCA 203 at [13] and [16] (ASZ15)).
DVC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 297 (DVC20) concerned a Ministerial refusal to grant a protection visa which was affirmed by the Immigration Assessment Authority (IAA). The Applicant sought judicial review of the IAA’s decision, but died after he filed his application with the Court. After reviewing the relevant authorities including Phung, Kamychenko and ASZ15, Kendall J dismissed the application. His Honour observed at [25]-[26] that:
The applicant’s right of review in this Court abated with his death. Even if the Court were satisfied that the IAA had erred in its decision (and that any such error was jurisdictional in nature), 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”.
Thus, given that a visa is a personal licence that does not survive the death of the visa-holder, the death of the Applicant means that there is no longer anyone with standing to seek review of the decision, and the granting of relief would be futile. I therefore find that the application should be dismissed.
Before I turn to the basis for the dismissal, by way of clarification, not all applications where an applicant has died are appropriate for dismissal. There may be some applications involving rights that can devolve, such as proprietary rights, which survive the death of an applicant. An example is where the subject matter of the proceedings forms part of the estate of an applicant, such as in a social security or tax matter where the outcome of proceedings may result in monies being owed to an applicant. In that scenario, a personal representative or beneficiary may seek to be joined as a party under s 30(1A) of the AAT Act because their interests are affected by the decision (see Mavris and Commissioner of Taxation [2018] AATA 4130 at [23]).
BASIS FOR THE DISMISSAL
This brings me to a consideration of the appropriate basis upon which to dismiss this application. It is possible to dismiss the application under s 42B(1) of the AAT Act for the following reasons:
(a)s 42B(1)(a) on several bases including that the application is:
(i)“frivolous” because there is no “legal object” to the proceedings (Phung). In other words, the application is “obviously unsustainable” and “any finding in favour of the applicant would have no practical benefit to him or anyone. Rather, it would involve the Tribunal in a pointless exercise with no possibility of a beneficial outcome” (Rundle and Civil Aviation Authority [2002] AATA 349 at [9] and [22]; see also Stanley and Minister for Foreign Affairs [2018] AATA 982);
(ii)“misconceived” because it is “obviously untenable or groundless” or because it would be “pointless” for the proceedings to continue (Thiel and Registrar of Marriage Celebrants [2015] AATA 872 [38]-[39]); and/or
(iii)“lacking in substance” given that the death of the Applicant has resulted in there being no legal object or subject matter (Phung) to the application.
(b)s 42B(1)(b) because the application has “no reasonable prospect of success” given that if the Applicant was successful the Cancellation Decision would be revoked, thus restoring his Visa. This is an impractical outcome because the Visa is a personal licence that cannot be given back to the Applicant because he is deceased.
It is also possible to dismiss this application under s 42A(4) which provides that: “The Tribunal may dismiss an application without proceeding to review the decision if the Tribunal is satisfied that the decision is not reviewable by the Tribunal.” It is my view that this is the most appropriate option, given the personal nature of the Visa, and the fact that only the Applicant has standing to seek review of the Cancellation Decision.
Further, in Andreatta and Commissioner for Superannuation [1991] AATA 532 (Andreatta) at [3] and [4], the Tribunal accepted a submission that, “[w]here the statutory entitlement that is the subject of the proceeding does not devolve upon the death of an applicant, then the death of the applicant will extinguish the availability of that entitlement and, with it, the power of any decision-maker” to make a decision under s 43(1) of the AAT Act. This provides further confirmation that, due to the death of the Applicant, this application is not reviewable and should be dismissed pursuant to s 42A(4) of the AAT Act.
As the Applicant’s statutory entitlement abated, or in other words was extinguished, with his death (DVC20, Andreatta) and no one else has standing to seek review of the decision, I have no power to make a decision under s 43(1) of the AAT Act. I am therefore satisfied that the Cancellation Decision is not reviewable by the Tribunal, and that the application should be dismissed under s 42A(4) of the AAT Act.
DECISION
The application for review is dismissed pursuant to section 42A(4) of the AAT Act on the basis that the Cancellation Decision is not reviewable.
I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner
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Associate
Dated: 8 July 2022
Date of hearing: On the papers Representative for the Respondent: Ms J Strugnell, Minter Ellison Lawyers
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