Re Saleh and Minister for Immigration and Border Protection

This matter concerned an application by Mr Saleh, an unlawful non-citizen detained in immigration detention, for review of a decision. The dispute arose when the Minister for Immigration and Border Protection requested that Mr Saleh attend the hearing via video conferencing technology. The Administrative Appeals Tribunal (AAT), constituted by Deputy President S A Forgie, was required to determine the appropriate venue for the hearing and whether it had the power to compel the Minister to arrange for Mr Saleh's physical attendance.

The legal issues before the Tribunal included whether the request for video conferencing should be considered in the context of deciding the appropriate venue, and whether an administrative direction regarding the transfer of applications from the Perth Registry was made according to law. Crucially, the Tribunal had to determine the extent of its power to require the respondent to arrange for the applicant to attend a hearing in a particular location, and whether such a requirement would constitute an exercise of judicial power.

The Tribunal reasoned that Mr Saleh's mental health issues and need for an interpreter meant that a video conference would compromise the Tribunal's ability to assess his evidence and ensure a fair hearing. The Tribunal noted concerns about an interpreter's role and the lack of physical support for Mr Saleh during a video hearing. The Tribunal found that an administrative direction to transfer applications from Perth was not made under the relevant provisions of the *Administrative Appeals Tribunal Act 1975* and was therefore not made according to law. Furthermore, the Tribunal held that while procedural matters are within its discretion under section 33 of the *Administrative Appeals Tribunal Act 1975*, it did not possess the power to require the Minister to arrange for a person to attend a hearing in person, as this would be in the nature of judicial power.

Consequently, the Tribunal transferred the substantive application to the Perth Registry and directed that Mr Saleh attend in person at a hearing conducted by a member located in Perth. The Tribunal declined the request for video conferencing, finding it would compromise the fairness of the hearing.