Phung v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 The present application has an unfortunate history. Mr Phung was a citizen of Vietnam who arrived in Australia in 1978, at the age of 13, and was a granted a permanent residence visa in the same year. On or about 3 February 2003, the respondent Minister made a decision under s 501(2) of the Migration Act 1958 ("the Act") to cancel Mr Phung's visa on character grounds ("the Minister's decision"). Mr Phung was subsequently held in immigration detention pending his removal from Australia. An application for judicial review of the Minister's decision was filed in this Court on 28 May 2003. The matter came before me on 4 June 2003, when I refused an application for interlocutory relief but made an order for a speedy trial. On 19 June 2003, before the trial could commence, Mr Phung died in Western General Hospital, Melbourne. 2 The Court is presently concerned with an application by Mr Phung's former de-facto wife, Ms Smith, to be substituted as the applicant in this case, and to have leave to amend the application filed on his behalf. A copy of the proposed amended application is before the Court, which is in material respects identical to that originally filed, save for the substitution of Ms Smith as the applicant and the addition of a claim for damages which is not predicated on a specific cause of action. As I understand it, there is presently no executor or administrator of Mr Phung's estate and, accordingly, no instructions can be given on its behalf in relation to the action. 3 Order 6, rule 10 of the Federal Court Rules provides; '(1) Where a party dies … but a cause of action in the proceeding survives, the proceeding shall not abate by reason of the death ... (2) Where the interest or liability of a party passes by assignment, transmission, devolution or otherwise to another person, the Court may make orders for the addition, removal or re-arrangement of parties and may make orders for the further conduct of the proceeding. (3) The Court may act under subrule (2) on application by a party or by a person to whom the interest or liability passes or of its own motion.' However, to state that "[w]here a party dies … but a cause of action in the proceeding survives" is to pose, rather than answer, the question in the present case. The question for determination that arises under the Rules is whether Mr Phung's cause of action survives his death. 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; Stephenson v Human Rights and Equal Opportunity Commission (1996) 68 FCR 290 per Wilcox J at 296-7, as quoted in Kalejs v Minister for Justice & Customs [2001] FCA 1769 at [18] per Kenny J. To determine whether a statutory right of action survives the applicant, one must look to the statute. In this regard, I consider, with respect, that the approach of Kenny J in Kalejs was correct, although I accept, as Mr Perkins of Counsel for Ms Smith contended, that [13] of her Honour's reasons in Kalejs should not be read as expressing any concluded view that statutory causes of action "abate" upon an applicant's death. 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 at [22]; 'With the death of Mr Kalejs, the decisions under review (whether pursuant to s 39B of the Judiciary Actor 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. 6 In the course of argument, Mr Perkins put a number of propositions in support of Ms Smith's application. The first was by way of analogy with relator actions, where it is axiomatic that the death or retirement of the Attorney-General or other officer of the Crown in whose name a case is brought does not cause the action to abate. That rule has no application to the present proceedings, notwithstanding the contention that the remedies Mr Phung sought were "public law" remedies. I do not regard it as helpful to enquire whether the case is one involving "public law". Regardless of the remedies sought, the right sought to be vindicated was a private right, conferred by a personal licence, to remain in Australia. 7 It was sought on behalf of Ms Smith to call in aid, by analogy, the traditional generosity of courts to accord a locus standi to plaintiffs seeking remedies in the nature of a writ of habeas corpus. In the Tampa case (Ruddock v Vardalis (2001) 110 FCR 491) an action was brought for habeas corpus by persons whose rights were not directly affected by the detention of the alleged refugees. By contrast, Ms Smith had a direct personal connection with Mr Phung. However, this argument confuses standing with subject matter or substance. In the present case, there is no longer anybody whose release from detention can be procured and no living person who can be affected by any order made. I am equally unpersuaded by reference to the fact that the appeal in Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri (2003) 197 ALR 241 had been heard after Mr Al-Masri had left the country. That appeal was brought by the respondent Minister, and was heard by a Full Court of this Court, because the point of law in question had application to persons other than Mr Al Masri. Moreover, Mr Al-Masri remained alive and capable of having his own interests (in the form of orders as to costs) affected by the outcome of the appeal. It is also trite to say that the appeal in Al-Masri necessarily followed a full hearing on the merits in Mr Al-Masri's presence, which is now, regrettably, impossible of achievement in the present case. 8 It was also submitted on Ms Smith's behalf that she had a parallel interest to that which the applicant had been pursuing before his death in that she was his common-law wife, the mother of his children and, at least in part, dependent upon him. However, as I have indicated, the present issue is not one of standing. Indeed, any question as to standing would also have to be determined against Ms Smith. Even if there were a legal interest in these proceedings which survived Mr Phung's death (which there is not), it is not clear that anyone else - even a former common law or de-facto wife - could prosecute it. Mr Phung's application to this Court was made under s 39B of the Judiciary Act 1903 and is subject to the express terms of s 477 of the Act. Section 478 of the Act states; 'An application referred to in section 477 may only be made by the Minister and: (a) if the privative clause decision concerned was reviewable under Part 5 or 7 or section 500 of this Act and a decision on such a review has been made - the applicant in the review by the relevant Tribunal; or (b) in any other case - the person who is the subject of the decision; or (c) in any case - a person prescribed by the regulations.' That section makes it clear that the only person with standing to prosecute the application was the applicant and Ms Smith has no legal interest in the present proceedings. This conclusion entails that Mr Phung's action abated upon his death: Sen v The Queen (1991) 30 FCR 173. 9 For the sake of completeness, I note that the proposed amended application foreshadows a claim by Ms Smith for damages, without indicating any cause of action that would found such a claim. If it is intended to frame a claim in negligence or under the Wrongs Act 1958 (Vic), that would require to be brought by way of a new application with Ms Smith as the original applicant in her own right and possibly not in this Court. Ms Smith's desire to clear Mr Phung's name, or to vindicate his character, is entirely understandable, but a desire of that kind confers no legal interest which will give standing or prevent a Court from concluding that an action has, in fact, abated; R v Rowe [1955] 1 QB 573. 10 The nature of the rights of a visa holder and my clear view that no person other than the visa-holder is capable of enforcing those rights entail the conclusion that Mr Phung's action abated upon his death. The action having abated, there shall be no order as to costs. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.