Radburn and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

This matter concerned an application to the Administrative Appeals Tribunal (the Tribunal) by an applicant seeking review of a delegate of the Minister's decision not to revoke the mandatory cancellation of his visa. The applicant's visa had been cancelled under section 501(3A) of the *Migration Act 1958* (Cth) due to his failure to pass the character test, stemming from a substantial criminal record and a lengthy prison sentence for serious child sex offences. Crucially, the applicant died after lodging his application for review but before any substantive hearing.

The primary legal issue before the Tribunal was the appropriate course of action to be taken in light of the applicant's death. The Tribunal noted that neither the *Administrative Appeals Tribunal Act 1975* (Cth) nor its Regulations provided specific procedures for dealing with the death of an applicant, nor did the Act's dismissal powers expressly cover such a circumstance. This necessitated an examination of the legal principles governing the effect of a visa-holder's death on their visa and any associated proceedings.

The Tribunal considered judicial authorities, including *Phung v Minister for Immigration and Multicultural and Indigenous Affairs* [2003] FCA 821 and *Kamychenko v Minister for Immigration and Multicultural and Indigenous Affairs* [2004] FCA 1517. These cases established that a visa is a personal licence that cannot survive the death of the visa-holder. Consequently, upon the death of the applicant, the proceedings were rendered without a legal object or subject matter, as the applicant could no longer be affected by the decision under review. The Tribunal was satisfied, based on documentary evidence, that the applicant had indeed died.

The Tribunal concluded that the application was not reviewable by the Tribunal in these circumstances. Accordingly, the application was dismissed under section 42A(4) of the *Administrative Appeals Tribunal Act 1975* (Cth).