FEDERAL COURT OF AUSTRALIA

Kamychenko v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1517

MIGRATION – visas – Business Skills (Residence) visa – decision of Migration Review Tribunal – judicial review – objection to competency – primary applicant deceased – whether secondary applicants can obtain relief sought despite death of primary applicant – nature of relief sought

Migration Regulations 1994 (Cth)

Judiciary Act 1903 (Cth)

Migration Act 1958 (Cth)

Succession Act 1981 (Qld) 

Phung v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 821

Stephenson v Human Rights and Equal Opportunity Commission (1996) 68 FCR 290

Kalejs v Minister for Justice and Customs (2001) 111 FCR 442; [2001] FCA 1769

V120/00A v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 116 FCR 576; [2002] FCA 264

BORIS KAMYCHENKO, TATIANA KAMYCHENKO AND VASSILI KAMYCHENKO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND MIGRATION REVIEW TRIBUNAL

Q203 of 2003

COOPER J

24 NOVEMBER 2004

BRISBANE

THE COURT ORDERS THAT:

1.                  The proceedings in the name of Boris Kamychenko be struck out with no order as to costs.

2.                  The application in the name of Tatiana Kamychenko and Vassili Kamychenko be dismissed with no order as to costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

background

1                     On 21 December 1999 an application in Form 1029 was lodged in the names of Boris Kamychenko, Tatiana Kamychenko and their son Vassili Kamychenko seeking the grant of a Business Skills (Residence) visa subclass 845.  Mr Boris Kamychenko was named as the main applicant. 

2                     On 30 October 2000 the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) determined to refuse the grant of the visa sought.  The refusal was based on the view of the delegate that Boris Kamychenko as the primary applicant failed to satisfy the ownership interest set out in criteria cl 845.213 of Sch 2 to the Migration Regulations 1994 (Cth).

3                     On 13 November 2003 the Migration Review Tribunal (‘the MRT’) affirmed the decision of the delegate to refuse to grant the visa sought.

4                     On 19 December 2003 the applicants applied to this Court pursuant to s 39B of the Judiciary Act 1903 (Cth) seeking orders setting aside the decision of the MRT and remitting the matter for rehearing according to law.

5                     Mr Boris Kamychenko died on 25 December 2003.  As a consequence of the death of Mr Kamychenko the first respondent filed an objection to competency.

6                     Mrs Kamychenko and her son contended that, notwithstanding the death of Boris Kamychenko, Mrs Kamychenko may stand in place of Boris Kamychenko and obtain the relief he would have been entitled to but for his death.  On this basis the remaining applicants contend that the MRT erred in:

(a)                construing the meaning of ‘ownership interest’ in s 134(10) of the Migration Act 1958 (Cth) (‘the Act’) in such a way as to deny to Boris Kamychenko an ownership interest in the business known as ‘Peter’s Seafoods’ for the purpose of the primary criteria for the grant of a subclass 845 visa;

(b)               applying Generic Guideline K of the Procedure Advice Manual when the applicable guideline was Generic Guideline M; and

(c)                finding that the applicants did not comply with the criteria for a subclass 845 visa being those set out in clause 845.221.

7                     The applicants submitted that such errors individually, or collectively, constituted jurisdictional error.  Accordingly, they submitted the decision of the MRT being one involving jurisdictional error, was not a privative clause decision to which s 474 of the Act applied to deny the applicants a right to the relief sought.

8                     The first respondent submitted that the cause of action of Boris Kamychenko, being a right to judicial review of an administrative decision to refuse to grant him a visa, abated with his death.  It was submitted that neither the right of review, nor the right to apply for and obtain a visa, was a cause of action which survived for the benefit of his estate by operation of s 66 of the Succession Act 1981 (Qld).  Further, it was submitted that the applicants did not at the time of the decision of the MRT satisfy the criteria applicable to the visa category sought.  The first respondent submitted that with the death of the main or primary applicant, Mrs Kamychenko and her son, as secondary applicants, could not now satisfy the criteria in cl 845.321(1) and cl 845.321(2) for secondary applicants, namely being members of the family of the primary applicant who is the holder of a Business Skills (Residence) subclass 845 visa.

9                     The first respondent submitted that Mrs Kamychenko cannot now put herself forward as the primary or main applicant.  Even assuming such a course was open to her, the first respondent submitted that she would have failed to meet as a minimum the requirements of cl 845.213 and cl 845.221.  At the time of the delegate’s decision and at the time of the MRT decision, the main business which the applicants relied on in making their visa application had ceased to operate.  This occurred in February 2000, eight months prior to the decision of the delegate.  This meant that neither Mr or Mrs Kamychenko had ‘an ownership interest in one or more established main businesses in Australia for the period of 18 months immediately preceding the making of the application’ and continued ‘to have an interest of that kind’ at the time of application (as required by cl 845.213(a) and cl 845.213(b)) and continued to hold such an interest at the time of decision (as required by cl 845.221).

THE OBJECTION AS TO COMPETENCY

10                  Division 3 of the Act provides for the grant of visas to non-citizens of Australia.

11                  Section 29(1) of the Act provides:

‘(1)      Subject to this Act, the Minister may grant a non-citizen permission, to be known as a visa, to do either or both of the following:

(a)    travel to and enter Australia;

(b)    remain in Australia.’

12                  Section 30 of the Act provides:

‘(1)      A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a permanent visa, to remain indefinitely.

(2)       A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a temporary visa, to remain:

(a)     during a specified period; or

(b)     until a specified event happens; or

(c)      while the holder has a specified status.’

13                  Section 31 of the Act provides:

‘(1)      There are to be prescribed classes of visas.

(2)       As well as the prescribed classes, there are the classes provided for by sections 32, 33, 34, 35, 36, 37, 37A and 38.

(3)       The regulations may prescribe criteria for a visa or visas of a specified class (which, without limiting the generality of this subsection, may be a class provided for by section 32, 36, 37 or 37A but not by section 33, 34, 35 or 38).

(4)       The regulations may prescribe whether visas of a class are visas to travel to and enter Australia, or to remain in Australia, or both.

(5)       A visa is a visa of a particular class if this Act or the regulations specify that it is a visa of that class.’

14                  Section 65 of the Act provides:

‘(1)      After considering a valid application for a visa, the Minister:

(a)   if satisfied that:

(i)       the health criteria for it (if any) have been satisfied; and

(ii)      the other criteria for it prescribed by this Act or the regulations have been satisfied; and

(iii)     the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

(iv)     any amount of visa application charge payable in relation to the application has been paid;

is to grant the visa; or

(b)   if not so satisfied, is to refuse to grant the visa.’

15                  As these sections demonstrate, a visa is a purely personal licence and a bare visa confers no right on any other person: Phung v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 821 at [5].  A refusal of the Minister’s delegate to grant the visa sought gives the applicant the right under s 338(2) of the Act to seek a review of the delegate’s decision by the MRT.  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.

16                  Where 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.

17                  Whether 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: Stephenson v Human Rights and Equal Opportunity Commission (1996) 68 FCR 290 at 296-297; Kalejs v Minister for Justice and Customs (2001) 111 FCR 442; [2001] FCA 1769 at [21] – [22] Phung at [4].

18                  In 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:  Phung at [5]; V120/00A v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 116 FCR 576; [2002] FCA 264 at [54] – [55].

19                  The question remains as to what then is the position of Mrs Kamychenko and her son as applicants in the proceedings in this Court.

20                  The primary criteria to be satisfied for the grant of a Business Skills (Residence) subclass 845 visa are set out in cl 845.2 of Sch 2 to the Migration Regulations.  That provision notes that the primary criteria must be satisfied by at least one member of a family unit.  The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.

21                  Mrs Kamychenko and her son were shown in Section 1 of the Form 1029 as family members wishing to remain permanently in Australia who were included in the application.  Boris Kamychenko is shown as the main applicant and he made the declaration in par 108 of the form required to be made under the criteria cl 845.219 by the applicant for the visa at the time of application.  Mrs Kamychenko did not set out to satisfy the primary criteria of an applicant for a Business Skills (Residence) subclass 845 visa even though she may have qualified had she done so.  For example, she has not made the declaration required under cl 845.219.  Having completed the Form 1029 on the basis that Mrs Kamychenko and her son were applying for the grant of a visa as family members of an applicant for a Business Skills (Residence) subclass 845 visa and that it was Boris Kamychenko who was to satisfy the primary criteria, it is not open to her and her son to amend the form to substitute Mrs Kamychenko as the main applicant for such a visa or to read the Form 1029 filed on 21 December 1999 as if it were so amended: V120/00A at [58] – [59].  Having made the application as other members of a family unit, other than the member required to satisfy the primary criteria, Mrs Kamychenko and her son had to satisfy the secondary criteria.

22                  The secondary criteria to be satisfied at the time of the decision included the following:

‘845.321 (1)    The applicant meets the requirements of subclause (2), (3) or (4).

(2)   An applicant meets the requirements of this subclause if the applicant is a member of the family unit of a person (in this clause called the non-dependent holder) who, having satisfied the primary criteria, is the holder of a Subclass 845 visa.’

                        (original emphasis)

23                  At no material time did Boris Kamychenko hold a subclass 845 visa as required by cl 845.321(2).  With his death the other applicants for the visa became incapable of satisfying the secondary criteria.  Even if the application of Mrs Kamychenko and her son under s 39B of the Judiciary Act did not abate with the death of Boris Kamychenko, the Court, as a matter

of discretion would not remit the matter for reconsideration because to do so would be a futility.

THE APPLICATION

24                  Finally, the applicants do not show that the MRT acted upon or made any jurisdictional error in concluding that the requirement of primary criteria cl 845.213 and cl 845.221 could not be met because of the cessation of the main business of ‘Peter’s Seafoods’.  That finding, even assuming that Mrs Kamychenko could otherwise satisfy all other primary criteria, is fatal to the application.

ORDERS TO BE MADE

25                  The proceedings in the name of Boris Kamychenko will be struck out as having abated by reason of the death of that applicant with no order as to costs: Kalejs at [40]; Phung at [10].  For all practical purposes the remaining applicants’ causes of action also abated with his death.  Their application ought to be dismissed and in the circumstances there should be no order as to costs made in favour of any party: see V120/00A at [62], where no order was made as to costs in like circumstances.

Associate:

Dated:              24 November 2004