FEDERAL COURT OF AUSTRALIA

ASZ15 v Minister for Immigration and Border Protection [2017] FCA 203

ORDERS

THE COURT ORDERS THAT:

The proceeding is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The Appellant first entered Australia in 1997 on a Chinese passport. He lodged a protection visa application, but that application was refused. In 2001 he left Australia.

2    The Appellant again entered Australia in 2002 on a South Korean passport. He again lodged a protection visa application. Again that application was refused. Review of that decision was sought. The then Refugee Review Tribunal affirmed the decision refusing to grant the visa.

3    Review of the Tribunal’s decision was then sought before the Federal Circuit Court of Australia. That Court dismissed the application: ASZ15 v Minister for Immigration & Anor [2016] FCCA 1851.

4    In August 2016 there was then filed in this Court a Notice of Appeal.

5    In February 2017, and prior to the hearing of the appeal, an affidavit was filed on behalf of the Respondent Minister annexing a “screenshot” from the Department’s database “Integrated Client Services Environment”. That “screenshot” records the Appellant as deceased.

6    There was certainly no appearance for the Appellant when the matter was first called on for hearing on 22 February 2017; nor was there any appearance at the resumed hearing on 27 February 2017. There is no reason to question the reliability of the evidence filed on behalf of the Respondent Minister that the Appellant is deceased.

7    It is concluded that the appeal has abated and that the appropriate order is that the proceeding be dismissed.

The death of a party to a proceeding

8    At least insofar as a proceeding at first instance in this Court is concerned, r 9.09 of the Federal Court Rules 2011 (Cth) provides as follows:

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.

(2)    If the interest or liability of a party passes to another person during a proceeding, by assignment, transmission, devolution or by any other means, the party or the person may apply to the Court for an order for the joinder of the person as a party or for the removal of the party.

(3)    If a person is joined as a party under this rule, the start date of the proceeding for the person is the date on which the order is made.

The predecessor provision to the current r 9.09 was O 6 r 10 of the Federal Court Rules 1979 (Cth). Rule 10, it had been observed, was “concerned with a proceeding during the subsistence of which the death or bankruptcy of a party occurs”: Frederikshavn Vaerft A/S v Stena Rederi Aktiebolag [2002] FCA 1024 at [23], (2002) 124 FCR 243 at 252-253 per Sundberg J. It was a rule “drawn in very wide terms”: Photocure ASA v Queen’s University at Kingston [2002] FCA 1079 at [6], (2002) 56 IPR 534 at 535 per Merkel J.

9    The position set forth in r 9.09 is substantially the same as that prevailing at common law.

10    The position in respect of an appeal to this Court in the circumstances of the present case is relevantly no different.

11    Whereas the “cause of action” previously sought to be pursued by the deceased was the right to seek judicial review of the Tribunal’s decision, the right sought to be pursued by the Appellant in this Court prior to his death was the right to appeal from the decision of the Federal Circuit Court.

12    The death of an appellant may lead to an appeal being abated: cf. Sen v The Queen (1991) 30 FCR 173. In there concluding that the right of appeal conferred by s 24(1) of the Federal Court of Australia Act 1976 (Cth) abated on the death of the appellant, Morling, Neaves and Foster JJ held (at 175):

Although s 24(1) of the Federal Court of Australia Act does not state in terms that an appeal from a judgment of the Supreme Court of a Territory may only be brought by a party to the proceeding giving rise to judgment, we think the subsection must be construed as giving a right of appeal only to such a party. The deceased appellant was the only person entitled to bring an appeal against the sentences imposed upon him by Kelly J. There being no provision in the legislation entitling the deceased’s father or executor or administrator to prosecute the appeal, we must hold that it has abated. We do not think it can be said that the appellant’s father has any legal interest in the subject matter of the appeal. Even if he were the executor or administrator of the appellant’s estate, we do not think he would be in any stronger position to prosecute the appeal. There is no suggestion in the present case that the outcome of the appeal will have any effect on the appellant’s estate.

Although Sen v The Queen was a case involving an appeal against a criminal conviction in circumstances where the appellant had died, there is no reason to reach a different conclusion in the present case.

13    The resolution of the appeal in the present case could give rise to no meaningful relief. As was concluded by Ryan J in Phung v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 821:

[4]    There is no general rule governing the application of the doctrine of abatement, as Mr Phung’s action was founded on an alleged statutory right, not a common law claim ... To determine whether a statutory right of action survives the applicant, one must look to the statute. …

[5]    A 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 v Minister for Justice and Customs [2001] FCA 1769, (2001) 111 FCR 442] 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.

The decision of Kenny J in Kalejs, to which Ryan J referred in Phung, has since been followed in other cases: Ali (as Executor and Trustee of the Estate of Ali) v Hartley Poynton Ltd (No 2) [2002] VSC 245; Hall v Hansen [2008] NSWSC 1200.

14    Similarly, in Kamychenko v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1517, (2004) 140 FCR 233 at 236-237 Cooper J concluded:

[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.

[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: …

[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.

It is not necessary to pursue in the present proceeding any question as to the circumstances in which other causes of action may survive or those in which an appeal may be pursued after the death of the appellant. The right to appeal from the decision of the Federal Circuit Court stands in no different position to the right to seek judicial review of the Tribunal’s decision. In neither case can any order now be made which serves any useful purpose.

15    No provision of the Migration Act 1958 (Cth), perhaps not surprisingly, provides for the continuation of proceedings after the death of an applicant seeking a visa. Contrast: Fisher v Fisher (1986) 161 CLR 438; Stanford v Stanford [2012] HCA 52, (2012) 247 CLR 108.

CONCLUSION

16    The death of the Appellant in the present proceeding, being a proceeding seeking relief personal to the Appellant and from which he alone could benefit, brings the proceeding to an end.

17    The appropriate order to be made is to dismiss the proceeding.

THE ORDER OF THE COURT IS:

The proceeding is dismissed.

Associate:

Dated:    7 March 2017