Taha v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 134
•22 February 2023
Federal Circuit and Family Court of Australia
(DIVISION 2)
Taha v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 134
File number: MLG 2675 of 2021 Judgment of: JUDGE KENDALL Date of judgment: 22 February 2023 Catchwords: MIGRATION – Bridging visa – application for judicial review – decision of the Administrative Appeals Tribunal - where the Court has been notified that the applicant is now deceased – appropriate resolution of proceedings – application dismissed, with no order as to costs. Legislation: Migration Act 1958 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 1.06
Federal Court Rules 2011 (Cth), r 9.09
Cases cited: ASZ15 v Minister for Immigration & Border Protection [2017] FCA 203
Coyle v Minister for Immigration [2019] FCCA 3173
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
Kim v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 142
Phung v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 821
Division: Division 2 General Federal Law Number of paragraphs: 29 Date of hearing: 22 February 2023 Place: Perth Applicant: No appearance on behalf of the applicant Counsel for the First Respondent: Ms M Harradine Second Respondent: No appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 2675 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KHALED TAHA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
22 FEBRUARY 2023
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 name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
3.The application be dismissed.
4.There be no order as to costs.
5.Written reasons for judgment be published from Chambers at a later date.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order 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 22 February 2023, the Court made the following orders in relation to this matter:
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 name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
3.The application be dismissed.
4.There be no order as to costs.
5.Written reasons for judgment be published from Chambers at a later date.
These reasons for judgment are those referred to in order 5 above. They explain why the Court determined that it was appropriate to dismiss the matter.
Background
This is a most unfortunate matter.
The applicant in this matter was a citizen of Lebanon.
He arrived in Australia as the holder of a visitor visa.
On 30 October 2020, the applicant applied for a Bridging E (Class WE) (Subclass 050) visa (the “visa”).
On 18 December 2020, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa on the basis that the applicant had a criminal history. This led the delegate to find that the applicant would not comply with visa condition 8564 (“Must Not Engage in Criminal Behaviour”).
The applicant sought review of the delegate’s decision by the Administrative Appeals Tribunal (the “Tribunal”).
On 15 June 2021, the applicant appeared at a hearing before the Tribunal (with the assistance of an interpreter in the Arabic (Lebanese) and English languages).
On 14 September 2021, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa.
On 18 October 2021, the applicant applied to this Court for judicial review of the Tribunal’s decision.
On 15 February 2023, the Court received correspondence from Mills Oakley (solicitors for the Minister). That email correspondence read as follows:
We have been informed that the applicant in this matter passed away on 21 September 2022. We filed an affidavit annexing evidence to this effect on 14 February 2023 (copy attached).
In the circumstances, we would be grateful if the matter could be listed for directions so that the proceedings can be finalised.
Attached to that email was the affidavit of Ms Brianna Roscoe which was affirmed and filed in this Court on 14 February 2023 (the “Roscoe affidavit”). Relevantly, that affidavit provides:
…
3.On 7 February 2023, I received an email from a Senior Legal Officer at the Department of Home Affairs, attaching a letter dated 23 September 2022 from Dr [Omitted], Emergency Medicine Physician at the Royal Melbourne Hospital. Dr [Omitted]’s letter confirmed that the applicant passed away on 21 September 2022 in the Emergency Department at the Royal Melbourne Hospital. Now annexed and marked “BZRM1” is a copy of the letter from Dr [Omitted] dated 23 September 2022.
The letter referenced as “BZRM1” relevantly provides (without alteration):
Regarding patient Khaled Taha DOB [omitted]
I confirm that Mr Khaled Taha died on the 21st of September 2022. As per his clinical notes, he suffered a cardiac arrest at 0232h at RMH in the setting of having been hit by a car, and was unable to be resuscitated due to unsurvivable injuries despite full trauma resuscitation intervention. Understandable, his family are extremely distressed as a result of this tragedy.
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 22 February 2023 and notified the parties accordingly.
Proceeding in this Court
At the directions hearing before this Court on 22 February 2023, Ms Michelle Harradine (“Ms Harradine”) appeared for the Minister. There was no appearance on behalf of the deceased applicant.
Ms Harradine relied on the Roscoe affidavit (which was taken as read and in evidence) and requested that the matter be dismissed. Ms Harradine did not seek any costs order.
The Court accepted the contents of the Roscoe affidavit and was satisfied that, based on the evidence before it, the applicant in this matter is now deceased.
Correspondence from Mills Oakley to the Court and subsequent communications between my chambers and the parties (as outlined above) was tendered and referenced as Exhibit 1.
For the reasons that follow, the Court determined that the applicant’s judicial review application (filed in this Court on 18 October 2021) had abated and that the appropriate order was that the proceeding be dismissed. Ms Harradine (for the Minister) agreed with the Court’s approach in this regard.
Consideration
As discussed by this Court in DVC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 297 (“DVC20”) (citing Kim v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 142 (“Kim”)), the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the “FCFCOA Rules”) do not contain any provisions regarding the appropriate procedure to be followed in circumstances where a party has died.
However, r 1.06(2) of the FCFCOA Rules provides that this Court can apply the Federal Court Rules 2011 (Cth) (the “FC Rules”) if appropriate, or if the FCFCOA Rules are insufficient. Rule 1.06(2) of the FCFCOA Rules relevantly 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.
In this matter, as was the case in DVC20 and Kim, the Court considered it is appropriate and necessary to apply r 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.
The principles and preferred approach in matters of this sort were set out by this Court in DVC20 and Kim. The Court repeats the analysis provided in those cases in the analysis that follows.
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, DVC20 and Kim.
The reasoning outlined above applies equally in this matter. The applicant’s right of review in this Court abated with his death. Even if the Court were satisfied that the Tribunal had erred in its decision (and that any such error was jurisdictional and material in nature), the granting of relief would be futile. That is, there would be no utility in granting relief in circumstances where there is no longer “any person affected by the decision under review”.
Conclusion
In the circumstances, the Court made orders to dismiss the matter and, as agreed by Ms Harradine (for the Minister), there was no order as to costs.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 23 February 2023
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