Xia (Migration)

XIA (MIGRATION) [2025] ARTA 423 (27 FEBRUARY 2025)
DISMISSAL DECISION
Applicant:Mr Jin Xia
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2445679

Tribunal:General Member P Maishman
Place:Perth
Date: 27 February 2025
Decision:Application dismissed under s 84 of the Administrative Review Tribunal Act 2024 (Cth).

Statement made on 27 February 2025 at 4:51pm
CATCHWORDS
MIGRATION – Skilled Nominated (Permanent) visa – applicant was deceased – there is no person who can continue with the substantive application – decision under review dismissed

LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), s 84

DISMISSAL DECISION

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 November 2024 to cancel the applicant’s Subclass 190 Skilled Nominated (Permanent) visa under s 109 of the Migration Act 1958 (the Act).
On 26 November 2024 the applicant applied to the Tribunal for review of the delegate’s decision.
The Tribunal invited the applicant to attend a hearing of his application on 21 February 2025. On 19 February 2025 the Tribunal received unverified information the applicant was deceased.
The applicant did not attend the hearing on 21 February 2025 and the Tribunal dismissed the application for non-attendance.
On 27 February 2025 the Tribunal received written verification dated 20 February 2025 confirming the applicant’s death on 19 February 2025 by letter from the Coroner’s Court.
The Tribunal reinstated the application on the basis that it should not be dismissed because of the applicant’s non-attendance at hearing.
Pursuant to s 84(4)(a) of the Act, the Tribunal may dismiss an application if an applicant dies and there is no person, as defined in s 84(2) of the Act, who can continue with the substantive application.
On the information before me I am satisfied the applicant has died and there is no person who can continue with the substantive application.
The application is therefore dismissed under s 84(4)(a) of the Act.
Representative for the Applicant: Mr Yew Han Hee

CaseChat Overview and Summary

In the case of Xia (Migration), the applicant sought a review of a decision to dismiss their substantive application for a Skilled Nominated (Permanent) visa due to their death. The matter was before the Administrative Appeals Tribunal (AAT). The primary issue for the AAT was whether the applicant's death extinguished their ability to continue with the substantive application for the visa, and if so, whether the Tribunal had the power to dismiss the review application. The AAT had to determine if there was any person who could continue with the application or if the death of the applicant effectively terminated any prospect of obtaining the visa.

The AAT considered the legal framework governing visa applications and the effect of the applicant's death on the application process. It found that upon the applicant's death, there was no person who could continue with the substantive application for the visa. Consequently, the Tribunal had no jurisdiction to entertain the review application as there was no live matter before it. The AAT held that the decision under review was correctly made, as there was no person who could continue with the substantive application following the applicant's death.

The Tribunal dismissed the review application, affirming the original decision. The AAT concluded that upon the applicant's death, there was no person who could continue with the substantive visa application, and therefore, the decision under review was correctly made. The Tribunal had no jurisdiction to entertain the review application as there was no live matter before it. The outcome was that the review application was dismissed, and the original decision stood.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established