SGTX and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2022] AATA 5219
•14 July 2022
SGTX and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 5219 (14 July 2022)
Division:GENERAL DIVISION
File Number(s): 2022/4236
Re:SGTX
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Britten-Jones
Date:14 July 2022
Date of written reasons: 28 April 2023
Place:Melbourne
The Tribunal directs that the Applicant appear at the substantive hearing in this matter by video pursuant to s 33A of the Administrative Appeals Tribunal Act 1975 (Cth).
...........................[sgd].............................................
Deputy President Britten-Jones
CATCHWORDS
PRACTICE AND PROCEDURE - whether the applicant should be directed to participate by video - where Tribunal has no power to require the respondent to arrange transfer of the applicant - significant impediments to the transfer of the applicant – procedural fairness can be afforded to the applicant by means of a video link from Christmas Island - applicant to participate by video under s 33A of the Administrative Appeals Tribunal Act 1975
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
CASES
ASIC v GetSwift Ltd [2020] FCA 504
Australian Securities and Investments Commission v Wilson (No 2) [2021] FCA 808
BLBY v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 128
Capic v Ford Motor Co of Australia Ltd [2020] FCA 486
HBMH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 275
Khalil v Minister for Home Affairs [2019] FCAFC 151
Kioa v West (1985) 159 CLR 550
Minister for Immigration, Citizenship and Multicultural Affairs v LPSP [2023] FCAFC 24
Palmer v McGowan (No 2) [2022] FCA 32
Re Refugee Tribunal; Ex Parte AALA (2000) 204 CLR 82; [2000] HCA 57
Saleh and Minister for Immigration and Border protection [2016] AATA 841
Tetley v Goldmate Group Pty Ltd [2020] FCA 913Tuimaseve and Minister for Immigration and Border Protection [2016] AATA 924
REASONS FOR DECISION
Deputy President Britten-Jones
28 April 2023
These are the written reasons requested by the Applicant with respect to an oral interlocutory decision I made on 14 July 2022 that the Applicant participate by video from Christmas Island in the North West Point Immigration Detention Centre at the hearing on 25 and 26 July 2022. The hearing proceeded by video and I delivered my decision on the application for review on 10 August 2022.[1]
[1] SGTX and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2536 (10 August 2022)
At a Directions Hearing on 3 June 2022, the Tribunal directed that the Applicant appear at the hearing by video link. On 20 June 2022 lawyers for the Applicant wrote to the Respondent and requested that arrangements be made for the transfer of the Applicant to Melbourne so that he could give evidence in person at the hearing. The Respondent refused this request and the matter was listed for an Interlocutory Hearing on 14 July 2022.
The Applicant made written submissions in support of the Applicant being transferred to Melbourne to attend the hearing in person:
(a)The COVID-19 Special Measures Practice Direction is not a reason alone to refuse a transfer request because no states or territories are in lockdown and restrictions are limited;
(b)The internet connection on Christmas Island is poor and will hinder the ability of the Applicant to give evidence;
(c)The Applicant’s evidence and his credibility is vital to the application;
(d)It will hinder the ability of the Tribunal to assess the Applicant’s demeaner and his credibility;
(e)It makes it difficult for his legal representatives to obtain instructions and to gauge the status of his mental health during the hearing;
(f)The Applicant’s mental health may be impacted which will affect his ability to properly give evidence.
The Respondent provided written submissions in support of an order under s 33A for the Applicant to participate in the hearing by video:
(a)Section 33A of the AAT Act provides that the Tribunal may for the purposes of a hearing allow a person to participate by video link;
(b)The COVID-19 Special Measures Practice Direction provides for a hearing by video and sets out relevant, but not exhaustive, considerations;
(c)The Tribunal does not have power to require the Respondent to transfer the applicant;[2]
(d)There are significant logistical impediments to the Applicant’s transfer from detention on Christmas Island to detention in Melbourne;
(e)There are public health considerations that weigh against the transfer in particular due to COVID-19 outbreaks in detention centres;
(f)There is no medical impediment preventing the Applicant from giving video evidence;
(g)The internet connection on Christmas Island has improved and is adequate for the purposes of a hearing;
(h)Arrangements can be made to allow the Applicant to properly give instructions before and during the hearing;
(i)The hearing can be conducted in a way that is procedurally fair to the Applicant.
[2] Re Saleh and Minister for Immigration and Border Protection [2016] AATA 841 at [34].
The approach of the Federal Court to hearings or evidence by video
From the onset of the COVID-19 pandemic in 2020 practical impediments arose which impacted on the ability to hold in person hearings. It is useful to consider some of the judicial comments regarding the pros and cons of video evidence.
In ASIC v GetSwift Ltd [2020] FCA 504, Lee J said at [7] and [33]:
[7]The singular circumstances presented by the current health crisis, and the arrangements provided for in the Information Note, reflect the Court’s remedial response as an arm of government in continuing to exercise the judicial power of the Commonwealth in circumstances where life cannot go on as usual. Just because one cannot have a hearing conducted in accordance with traditional practices and procedures, does not mean that the Court’s judicial function cannot be formed effectively where it is necessary to do so. As Voltaire observed, one must ensure the perfect does not become the enemy of the good.
…
[33]To the extent that demeanour does play an important role in assessing the evidence of witnesses, then my experience, particularly in the recent trial that I conducted, is that there is no diminution in being able to assess the difficulty witnesses were experiencing in answering questions, or their hesitations and idiosyncratic reactions when being confronted with questions or documents. Indeed, I would go further and say that at least in some respects, it was somewhat easier to observe a witness closely through the use of the technology than from a sometimes partly obscured and (in the Court in which I am currently sitting) distant witness box.
In Tetley v Goldmate Group Pty Ltd [2020] FCA 913, Bromwich J said at [16]:
[16]Because it influenced my thinking in deciding this application, I also consulted with a number of my judicial colleagues, several of whom are presently conducting protracted online hearings which also involve questions of credit and cross-examination. Their experience was that there was no great diminution in the conduct of an online hearing compared to a hearing in court, with some of the obvious disadvantages being offset by some real advantages including a clearer view of the witness in the course of giving evidence-in-chief and in cross-examination online.
In Capic v Ford Motor Co of Australia Ltd [2020] FCA 486, Perram J said at [19]:
[19]The Respondent then submitted that the cross-examination of witnesses over video-link is unacceptable. I accept the Respondent’s submission that there are many authorities in this Court which underscore the unsatisfactory nature of cross-examination by video-link: see, eg, Hanson-Young v Leyonhjelm (No 3) [2019] FCA 645 at [2]; Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) [2009] FCA 1306; 181 FCR 152 at 171 [78]. However, those statements were not made in the present climate, nor were they made with the benefit of seeing cross-examination on platforms such as Microsoft Teams, Zoom or Webex. My impression of those platforms has been that I am staring at the witness from about one metre away and my perception of the witness’ facial expressions is much greater than it is in Court. What is different – and significant – is that the video – link technology tends to reduce the chemistry which may develop between counsel and the witness. This is allied with the general sense that there has been a reduction in formality in the proceedings. This is certainly so and is undesirable. To those problems may be added the difficulties that can arise when dealing with objections.
Lee J considered an application to receive evidence by video in the defamation case of Palmer v McGowan (No 2) [2022] FCA 32:
[30] One of the reasons why the Court has been able to adapt so readily to the challenges presented by the pandemic, is that AVL technology has been in use in the Court for many years and, in an antevirus world, a series of cases had established that its use in a hearing was a matter for the primary judge’s discretion to be exercised in accordance with the singular circumstances of a case.
[31] As Professor Michael Legg and Anthony Song explain in their useful article, “The Courts, the Remote Hearing and the Pandemic: From Action to Reflection” (2021) 44(1) UNSWLJ 6, post-pandemic, courts around the world rapidly shifted to remote hearings. Indeed, “balancing public health directives with the need to continue upholding the rule of law, what followed has been the largest, unforeseen mass-pilot of remote hearings across the world”.
Lee J referred favourably to:
[40] … the remarks made by Flick J in Corrigan v Commvault Systems (Australia) Pty Ltd [2011] FCA 107; (2011) 192 FCR 71 (at 75 [12]) and Besanko J in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 627; (2015) 231 FCR 531 (at 537–538 [16]), that: (a) it is for the party seeking the favourable exercise of the discretion to establish the reason for its exercise having regard to the specific facts and circumstances and the overriding consideration of ensuring that justice is done as between the parties to the proceeding; and (b) there is no presumption nor prima facie case as to the way in which the discretion is to be exercised in the absence of countervailing considerations.
Lee J decided that he would require the evidence to be given in person for two reasons:
[42] …The first is that consistently with the view that I have formed in other cases, I will be best assisted by assessing the evidence as to hurt to feelings by closely observing the claimants giving that evidence, not only orally but also in close physical proximity. The second is the likely central importance of cross-examination to the determination of the facts-in-issue in this case.
[43] Not only does receiving the evidence of the witnesses in person maintain fluidity between the witness, counsel and the judge, but there is much to be said about a witness coming into the usually unfamiliar confines of a courtroom, swearing an oath or taking an affirmation in a witness box to tell the truth, and proceeding to give evidence on oath or affirmation in the physical presence of counsel and the judge. There is a solemnity about the giving of evidence, and the formalities reinforce it.
[44] In taking this view I am cognisant of the fact that a number of judges of this Court, including me, in cases such as ASIC v GetSwift (at [33]), Tetley v Goldmate Group Pty Ltd [2020] FCA 913 (at [16] per Bromberg J), Auken Animal Husbandry Pty Ltd v 3rd Solution Investment Pty Ltd [2020] FCA 1153; (2020) 147 ACSR 521 (at 530 [49] per Stewart J), and Universal Publishing Music Pty Ltd v Palmer [2020] FCA 1472 (at [32] per Katzmann J), have expressed a degree of satisfaction and indeed enthusiasm as to the receipt of evidence at remote hearings, even in cases where credit is in issue. In many cases it is highly suitable for hearings to be conducted remotely. There have been less enthusiastic views expressed, but it is noteworthy that a number of the particularly favourable references to remote hearings in complex cases were made in 2020, at an early stage of the “unforeseen mass-pilot of remote hearings”. At least as far as I am concerned (and I am aware my view is not unique), accumulated experience and subsequent reflection has caused views of at least some to evolve. Most relevantly, my view is no longer the same as it was before the experience of the last twenty months or so.
[45] In relation to many witnesses, including highly intelligent professionals, I have come to appreciate a somewhat different dynamic between the witness and the cross-examiner than is present at an orthodox hearing. Speaking generally, the witness feels an additional degree of comfort in being physically remote from the courtroom and being in their own surroundings. Incidentally, a tell-tale indication of this more “relaxed” environment is often seen by witnesses being far more casually attired than would be the case if they came into Court. This might be termed the “leisure wear” effect. Further, as much as courts seeks to reproduce the solemnity of a traditional hearing while operating online, at least in my experience, there is a distinct difference in atmosphere. It is jejune to assume that exchanges (which may include confrontational exchanges) between two persons in close physical proximity to one another, is the same as exchanges that occur in the less intimate world of a video link.
[46] Related to this point, is that increasingly I have felt a nagging disquiet that I may perhaps be missing something in assessing the evidence of a witness by reference to the tone of voice or non-verbal signals. As time has gone on, it has become more evident to me that in an audio-visual feed, minor differences in emphasis or tone can be more difficult to appreciate and assess.
[47] It has, of course, become common for scepticism to be expressed about the advantage that trial judges enjoy in seeing a witness give evidence. But despite these well-founded criticisms and the fact that by video a judge can observe the manner of giving evidence remotely, based on my experience in recent times, I consider I have a better prospect of understanding the subtleties and nuances of the sort of evidence to be given in the present case, if it is given in person. Credit is likely to be a factor in resolving at least some issues in this case. It is unnecessary to be more specific for present purposes, but I cannot discount the possibility that in this case (and these assessments are always case-specific) the close and careful assessment of the evidence-in-chief may be relevant in properly fixing any award of damages to either claimant based on consolation for hurt, and evidence given in cross-examination may be an important factor which assists me in justly determining this controversy.
Jackson J considered an application for an overseas based witness to give evidence by video link in Australian Securities and Investments Commission v Wilson (No 2) [2021] FCA 808 and said:
[34] A broader difference between the situation now and the situation 12 months ago is that, then, the pandemic was still quite new, and the court was working out the ways in which it could use technology to adapt to that new situation. Now, the court's experience in facilitating and observing cross-examination of important witnesses by video link is more widespread than it was then, and it has generally been viewed favourably in this court and others: see e.g. Universal Music Publishing Pty Ltd v Palmer [2020] FCA 1472 at [32]; Long Forest Estate Pty Ltd v Singh [2020] VSC 604 at [23]; Auken Animal Husbandry Pty Ltd v 3RD Solution Investment Pty Ltd [2020] FCA 1153; (2020) 147 ACSR 521 at [49]-[50]; Sanson v Sanson [2021] NSWSC 417 at [31]. I remain of the view that the risk of some injustice to Mr Wilson is real and not far-fetched or fanciful; if it were otherwise, that would be the end of the present issue. But in a general sense, the court's further experience and confidence in cross-examination by video link lessens my concern about that risk.
Jackson J concluded:
[44] In the result, I consider that the calculus has changed considerably since this time last year. The court has more experience with taking contentious evidence by video link and more confidence in its efficacy. If taking Dr Castella's evidence that way does turn out to be problematic, submissions as to weight or the exclusion of evidence can be made or, if necessary, an application may be made to revoke leave to adduce the evidence by video link. Importantly, the minimum extent of likely further delay if leave is refused is now clear, and it will be considerable. Another year has passed. Significant further delay may prejudice ASIC in the presentation of its case. Taking all this into account, in my view the balance has tipped and it is in the interests of justice to grant the application for leave to adduce Dr Castella's evidence by video link.
The approach of the Tribunal to hearings or evidence by video
In Saleh and Minister for Immigration and Border protection [2016] AATA 841 (‘Saleh’), DP Forgie considered whether s 33 of the AAT Act conferred power on the Tribunal to direct the Minister to bring an applicant to the Tribunal:
[30]As I have said, s 33 is concerned with the procedure to be followed in the hearing of a particular proceeding. Procedure relates to the order to be followed in that hearing. When taken with the Tribunal’s power to hold various proceedings, and the breadth of the power illustrated by the examples given in s 33(2A), it appears that the power extends to directing that a party or witness attend a hearing and to the way in which a party or a witness may attend that hearing. It even extends to directing a party to ask the Tribunal to summons a person as a witness. I do not, however, consider that the power given by s 33 to the Tribunal extends to enabling it to direct one party to produce another party or to produce a witness. That goes beyond what is encompassed in the notion of procedure for it goes beyond the method or order to be followed in the hearing of the proceeding. Procedure is the subject of the power conferred by s 33 and not attendance.
The interpretation of s 33 by DP Forgie is, with respect, consistent with the interpretation in Minister for Immigration, Citizenship and Multicultural Affairs v LPSP [2023] FCAFC 24 where the Full Court of the Federal Court considered whether s 33 conferred power to require a person to undergo a medical examination against their will:
[82] The parties to this appeal did not direct the Court to any statutory provision expressly empowering the Tribunal to require a party to submit to a medical assessment against their will. As already noted, s 33 of the AAT Act does not expressly confer such a power. Consideration of the text, context and purpose of the AAT Act does not lead to the conclusion that that Act expresses a clear intention to authorise the Tribunal to curtail a party’s personal liberty and autonomy by requiring him to attend a medical examination against his will. The AAT Act does not manifest an intention to do so by “unmistakable and unambiguous language”: see Coco at 437. Having regard to the foregoing discussion, it would be an error to construe s 33 as conferring power on the Tribunal to do so.
In Saleh, DP Forgie commented about some of the practical impediments to an applicant in detention appearing in person at a hearing:
[36]The occasions on which the Tribunal requires the attendance of a person who is held in immigration detention or in custody are not uncommon. There are administrative arrangements in place whereby the Tribunal contacts the relevant authorities and the person is brought to the Tribunal for the hearing. That is so when they are held in a State prison or correctional facility or in immigration detention. Mr Gerrard has very properly indicated that the Minister is prepared to try to make arrangements to bring Mr Saleh to the Tribunal hearing in Melbourne should his application under s 33A be refused.
…
[43]None of the permutations of hearing arrangements that I have considered recommends itself to me as anything near ideal. If I decline to make an order under s 33A that Mr Saleh participate in the hearing by video, there is no guarantee that travel arrangements can be made with a commercial carrier. Even if they can be, return flights and accommodation arrangements have to be made for him and three officers. The expense is not inconsiderable but, even though I do not have evidence in this case of the costs, I think it safe to say that those expenses are certainly no less if a flight has to be chartered. Expense is one thing. Mr Saleh’s health is another. Given the material that is on the file regarding his mental condition, I do not have any evidence as to the effect that a flight from Perth to Melbourne would have on him in the circumstances in which it is being made.
[44]I accept that it is always far preferable for client and legal adviser to be physically present together but what are the consequences if they are not? Provided he is not under cross–examination, arrangements can be made for Mr Saleh and Ms Ford to speak with each other privately whether he attends the hearing in person or by video. In a case such as this, it is important to be aware of changes in demeanour and behaviour that may indicate that a person is not coping with the situation as he or she should. It may be that the quality of the video connection between Perth and Melbourne has sufficient definition to enable any changes to be monitored but it must be acknowledged that this is not always the case. To overcome that, it would be preferable to have Mr Saleh and the member hearing the case physically in the same room. The video link should be of sufficient quality to enable Ms Ford to have regard to be had to his responses both in their substance and the manner of their delivery.
…
[48]Arrangements can be made to have an interpreter physically present in the hearing room. The member constituted to hear the matter will also be physically present in the room where he or she can hear Mr Saleh’s evidence and will be best placed to ensure that the interpreter understands his or her role. He or she will be best placed to observe the nuances and manner in which he gives his evidence in so far as that is relevant to his or her consideration. Mr Saleh’s evidence is the centrepiece of his case and it seems to me that the interests of justice in this case require that he should be physically present with the Tribunal member and the interpreter. Flexible arrangements can be made to ensure that he can give instructions to Ms Ford by means of the video link during the course of the hearing unless he is being cross-examined at the time. These arrangements will leave Ms Ford and three or four witnesses in Melbourne attending the Perth hearing by video or telephone as appropriate. The interests of justice and the attainment of the objectives in s 2A of the AAT Act, however, seem better served by their attending that way than Mr Saleh’s doing so with the hearing held in the Melbourne Registry. They are better served in that way than by his travelling to Melbourne for the purpose of the hearing with its attendant cost. The Minister has made arrangements to have legal representation whether heard in Melbourne or Perth.
In Tuimaseve and Minister for Immigration and Border Protection [2016] AATA 924, DP Forgie said at [22] and [52] – [53]:
Power is a discretionary power
[22]In Re Saleh and Minister for Immigration and Border Protection (Saleh) I concluded that the Tribunal does not have power to require the Minister to arrange for a person who has an application in the Tribunal and whom he has detained under the Migration Act to attend the hearing of a proceeding in the Tribunal. That conclusion does not lead automatically to the further conclusion that applicant must be required to attend the hearing by means of some form of telephone or electronic communications equipment. The power granted by s 33A of the AAT Act is expressed in terms that the Tribunal “may” permit or require attendance in that way. Given the nature of the powers given to the Tribunal under s 33 that generally permit it to determine its own procedures within its own discretion, the power given to it under s 33A must also be regarded as discretionary.
…
[52]Procedural fairness requires not only that Mr Tuimaseve be given a proper opportunity to attend the hearing in a manner that permits him not only to give evidence and be cross-examined and questioned by the Tribunal but also that he have a proper opportunity to hear what is said by every other participant in the hearing. That is to say, he must have a means of communication by which he can present his case and hear the case that is put against him. He must have that proper opportunity to hear the case that is put against him so that he can address those issues. If legally represented as Mr Tuimaseve is, he will do that by giving instructions to his legal representatives. Were he not legally represented, he would need that proper opportunity to address the issues himself.
[53]The current stage of development of the video equipment and connections available to the Tribunal in Melbourne and to the NWPIDC on Christmas Island does not allow me to have any reasonable level of confidence that it will permit me to give Mr Tuimaseve a reasonable opportunity to present his case, hear the evidence given by other witnesses and representatives and respond to the Minister’s case. If he cannot hear that evidence, he cannot give proper instructions to his legal representatives. The not insignificant cost to the Minister may or may not be reduced on a re-assessment of the risk level but that is not a matter over which I have any power. Even if the cost remains the same, that cost does not outweigh the responsibility I have to ensure that the hearing is conducted with procedural fairness. Therefore, I have decided to decline the Minister’s request under s 33A that I require Mr Tuimaseve to participate in the hearing of the application by telephone or by means of other electronic communications equipment including video conferencing.
The Tribunal must comply with the common law rules relating to procedural fairness and natural justice unless that obligation is limited or extinguished by the statute: Re Refugee Tribunal; Ex Parte AALA (2000) 204 CLR 82; [2000] HCA 57 at [41]. Brenan J said in Kioa v West (1985) 159 CLR 550 at 614:
To ascertain what must be done to comply with the principles of natural justice in a particular case, the starting point is the statute creating the power. By construing the statute, one ascertains not only whether the power is conditioned on observance of the principles of natural justice but also whether there are any special procedural steps which, being prescribed by statute, extend or restrict what the principles of natural justice would otherwise require.
Section 39 of the AAT Act reflects the obligation to give an applicant a reasonable chance to present their case.
The President of the Tribunal issued a Practice Direction on 2 March 2021 providing for COVID-19 Special Measures including as follows:
4.1The AAT will decide whether to hold any final hearing:
(a) by telephone;
(b) by video;
(c) in person; or
(d) by a combination of in person, telephone and/or video.
Relevant considerations may include, but are not limited to:
(a) the nature and complexity of the legal and factual issues in dispute;
(b) the number, nature and availability of any witnesses;
(c) the nature and volume of the documentary evidence;
(d) the capacity of a party or other person to participate in a hearing by telephone, by video or in person;
(e) COVID-19 conditions in the place(s) in which the participants are located; and
(f) COVID-safe requirements in the AAT Registry in which the hearing would take place.
4.2A party may request that a hearing be conducted in whole or in part by telephone, by video and/or in person. Unless we allow otherwise, the request must:
(a) be made in writing and set out the reasons for the request; and
(b) state whether any other party consents to the request.
We may hold a directions hearing to consider the request.
4.3No later than 21 days before the first day of any hearing, the AAT will hold a directions hearing to discuss with the parties and then make directions in relation to how the hearing will be conducted, including:
(a) the arrangements for conducting the hearing by telephone, by video and/or in person, including any electronic communications technology that will be used;
(b) the provision of electronic documents for the hearing;
(c) the arrangements for witnesses to give evidence, including by telephone or video; and
(d) any other matters to best achieve a fair, efficient and safe hearing.
We expect the parties to:
(a) confer before the directions hearing; and
(b) where possible, reach agreement as to the conduct of the hearing.
4.4Subject to any other direction we make, no later than seven (7) days before the first day of the hearing, the parties must lodge with the AAT and give to any other party:
(a) written confirmation that they and their witnesses will be able to participate in the hearing, including using any chosen form of electronic communications technology; and
(b) any documents not included in the T-documents which they intend to tender into evidence at the hearing.
If the other party is an inmate of a prison, in immigration detention or is otherwise lawfully detained in a public institution, the person must be given the documents both in hard copy and, to the extent possible, electronically.
Consideration
The Applicant’s visa in this matter was mandatorily cancelled under s 501(3A) on character grounds on 20 January 2017. Upon completion of his sentence of imprisonment, the Applicant was detained in immigration detention. At the time of his application to the Tribunal on 26 May 2022 the Applicant was in detention on Christmas Island in the North West Point Immigration Detention Centre.[3] At the first Directions Hearing, lawyers for the Applicant requested that he be transferred to Melbourne to attend the hearing in person. The Respondent refused to facilitate the transfer of the Applicant from Christmas Island to Melbourne for the hearing. The Applicant opposed any direction under s 33A that the Applicant give evidence by video.
[3] The Applicant was first taken to Christmas Island and detained in August 2020
The initial request by the Applicant that the Respondent be directed to bring the Applicant to Melbourne is not within the power of the Tribunal to make. Section 33, relating to the procedure of the Tribunal, does not confer power on the Tribunal to direct one party to arrange for the transfer of the other party to where the hearing takes place.
The location of the Applicant on Christmas Island poses difficulties for the Tribunal, the parties and their representatives. The Applicant wants to participate at the hearing in person so that his legal representatives are present with him and so that his evidence is given in the presence of the Tribunal member and not via video link. The Applicant contends that he will be disadvantaged if his legal representative is not by his side during the hearing for the purpose of giving instructions. Further, the Applicant contends that he will have a better chance of persuading the Tribunal member to exercise the discretion to set aside the non-revocation decision if the evidence is given in person and not via a video link. The concerns expressed by the Applicant are valid and must be taken into consideration when deciding whether to direct under s 33A that the Applicant participate by video.
A potential dilemma for the Tribunal arises if it is determined that no order under s 33A should be made because a video hearing will not afford procedural fairness to the applicant. In that circumstance the hearing should proceed in person but the practical reality is that the applicant, without the assistance of the respondent, is unable to leave the detention centre and attend the Tribunal. The problem is compounded when the applicant is offshore on Christmas Island and faces an 84 day time limit within which the application must be heard and determined or else there will be a default affirmation of the decision under review. Whilst the Tribunal does not have the power to direct that the respondent arranges the transfer of the applicant to the Tribunal, I would consider it appropriate if these circumstances did arise that the respondent makes every effort to confer with the applicant and the Tribunal to arrange a hearing at which the applicant can appear in person. As will become apparent from my reasons below, that circumstance does not arise in this case and therefore the dilemma does not need to be resolved by me on this occasion.
Section 33A
Section 33A provides that ‘[t]he Tribunal for the purposes of a hearing…may allow or require a person to participate by telephone or by means of other electronic communications equipment’. The section is found within Division 2 of Part IV of the AAT Act which is entitled ‘Parties and procedure’. It provides a discretion to the Tribunal to direct that evidence be given remotely. The reference to ‘a person’ clearly contemplates that the subject of any direction given under s 33A could be a witness or one of the parties. The reference to ‘participates’ means that the remote conduct goes beyond the giving of evidence and would include any conduct necessary to participate as a party in a hearing. The discretion is expressed in terms that the Tribunal ‘may allow or require a person to participate’ which suggests that the application could be brought by either party with respect to themself or their witness (in which case it would be an application to allow) or another party or their witness (in which case it would be an application to require).
Section 33A does not provide the circumstances in which the discretion may be exercised. It simply provides that the discretion be exercised ‘for the purposes of a hearing’ which directs attention to the procedure of a hearing. The AAT Act, the general law, and, in some cases, other legislation governs the Tribunal’s procedures at a hearing.[4] The Tribunal has a common law and statutory duty to afford procedural fairness to the parties. It follows that an order for a video hearing under s 33A will not be made unless the Tribunal is satisfied that procedural fairness can be afforded to the applicant. What is procedurally fair will differ in each case depending on the facts.
Procedural fairness in the context of a s 501CA application
[4] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v LPSP [2023] FCAFC 24 at [55]
The obligation to afford procedural fairness in a hearing to determine whether to revoke a mandatory cancellation of a visa was recently considered in HBMH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 275 by Katzmann J who said:
The content of the obligation to afford procedural fairness
[97] It well established that “the statutory framework within which a decision‑maker exercises statutory power is of critical importance when considering what procedural fairness requires” and that “the particular content to be given to the requirement to accord procedural fairness will depend upon the facts and circumstances of the particular case”: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [26] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
[98] It follows that, in answering the question raised by ground 2 of the applicant’s application, it is necessary to begin with the statutory framework.
[99] A number of aspects of the statutory framework are relevant here.
[100] First, in carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that, among other things, is “fair, just, economical, informal and quick” (AAT Act, s 2A).
[101] Second, proceedings before the Tribunal are to be conducted with “as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit” (AAT Act, s 33(1)(b)).
[102] Third, the Tribunal is not bound by the rules of evidence (AAT Act, s 33(1)(c)).
[103] Fourth, the Tribunal’s powers include the power to take evidence on oath or affirmation and to adjourn a proceeding (AAT Act, s 40) and to take evidence by telephone or other electronic means (AAT Act, s 33A).
[104] Fifth, subject to certain provisions of the AAT Act, not presently relevant, the Tribunal is bound to ensure that “every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case …” (AAT Act, s 39(1)).
[105] Sixth, for the purposes of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred on the decision-maker by any relevant enactment and shall make a decision in writing affirming, varying or setting aside the decision under review and making a decision in substitution or remitting the matter for reconsideration (AAT Act, s 43(1)).
[106] Seventh, s 500(6L) of the Migration Act relevantly provides that, if the Tribunal has not made a decision under s 43 of the AAT Act in relation to the decision under review within a period of 84 days after the day on which the applicant was notified of the decision, the Tribunal is taken, at the end of that period, to have made a decision under s 43 to affirm the decision under review.
[107] It is important to note, too, that the review the Tribunal was conducting was a review of the Minister’s decision not to revoke the cancellation decision. As Wigney J explained in EXT20 v Minister for Home Affairs (2022) 291 FCR 55 at [133]:
[T]he statutory scheme … involves the person whose visa has been revoked making representations about why the cancellation of his or her visa should be revoked and the Minister forming the relevant state of satisfaction based on those representations. It is for the person whose visa has been cancelled to put before the Minister, by way of representation, what the person wants the Minister to consider: Minister for Immigration and Border Protection v Maioha (2018) 267 FCR 643; [2018] FCAFC 216 at [48] (Rares and Robertson JJ). The Minister’s duty or obligation is to “consider whether or not he or she has the requisite state of satisfaction to revoke the cancellation by reference to the material in the representations”: Omar at [34(g)] (emphasis added). The Minister is not necessarily obliged to ask the person for further or more detailed representations, or to make any further inquiries into the facts or circumstances contained in the representations: Maioha at [48]; see also Navato v Minister for Home Affairs [2019] FCAFC 135 at [100] (Middleton, Moshinsky and Anderson JJ); Pennie v Minister for Home Affairs [2019] FCAFC 129 at [14] (Davies, Derrington and Colvin JJ).
The Full Federal Court considered whether the Tribunal denied the appellant procedural fairness in Khalil v Minister for Home Affairs [2019] FCAFC 151 (‘Khalil’) at [31] – [32]:
[31]Section 39(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) requires the Tribunal to ensure that every party to a proceeding before it is given a reasonable opportunity to present his or her case. That requirement is also at the heart of the obligation to afford natural justice which the law would in any event imply: Sullivan v Department of Transport (1978) 20 ALR 323 at 342 (Deane J, Fisher J agreeing). A failure to accede to a reasonable request for an adjournment can constitute procedural unfairness: Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at [40] (Gaudron and Gummow JJ, citing Sullivan at 343).
[32]What is reasonable will depend upon the circumstances of the case: Re Australian Railways Union; Ex parte Public Transport Commission (1993) 117 ALR 17 at 24. However, the duty of the Tribunal was to afford the applicant a reasonable opportunity to present his case, not the best possible opportunity that the Tribunal may have been capable of accommodating, or an adjournment to ‘a date as late as humanly possible’: Daw v Minister for Immigration & Citizenship [2012] FCA 705 at [25], [30] (Edmonds J), affirmed in Daw v Minister for Immigration & Citizenship [2012] FCAFC 123 (Flick, Nicholas and Robertson JJ). As that case illustrates, the question of whether or not an applicant has been given a reasonable opportunity to be heard depends on the course of the proceedings as a whole: see especially [2012] FCA 705 at [24], quoted with approval in [2012] FCAFC 123 at [11].
Further guidance with respect to how the Tribunal should conduct a hearing to determine whether to revoke a cancellation decision under s 501CA is provided in BLBY v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 128 (‘BLBY’) by Colvin J who said:
[18] … When it comes to a decision made by the Tribunal on review as to whether the Tribunal is satisfied that there is 'another reason' to revoke, two further matters must be considered. The first is that the Tribunal conducts its own procedures which may allow the introduction of further material as 'representations', including by way of evidence and submissions received at a hearing conducted by the Tribunal. To some extent those procedures are modified by s 500 in the case of an application to review a decision made not to exercise the power conferred by s 501CA(4) to revoke a visa cancellation. However, the Tribunal's procedures extend beyond adverting to the representations and the hearing that it is required to conduct must be procedurally fair and its reasoning must conform to the standards to be expected of an independent Tribunal of the kind established under the Administrative Appeals Tribunal Act 1975 (Cth). …
[19] The second matter is that s 499 provides that the Minister 'may give written directions to a person or body having functions or powers under this Act' if the directions are about the performance of those functions or the exercise of those powers. The person or body must then comply with the direction: s 499(2A). The Minister has made a written direction under s 499 concerning the exercise of the power conferred by s 501CA, namely 'Direction No. 90 - Visa refusal and cancellation under section 501 and revocation of mandatory cancellation of a visa under Section 501CA' (Direction). Therefore, in making its decision, the Tribunal was required to comply with the Direction. A failure to comply with a direction made under s 499 may constitute jurisdictional error …
The above-mentioned decisions of HBMH, Khalil and BLBY provide very helpful guidance as to how the Tribunal should exercise its discretion under s 33A.
Some general concerns about remote hearings by video
It may be helpful if I record some of my general concerns about the giving of evidence remotely by an applicant in a s 501 matter involving character.
If leave is granted for an applicant to give evidence by video then the applicant will do so from a room within the detention centre often situated in a remote location such as Christmas Island. The applicant will not have the usual convenience of being in the same room as their legal representative nor the comfort of being accompanied by family or other supporters. The applicant will be reliant on the security officers to assist with the video equipment. The applicant will not have the benefit of a computer to access the documents nor receive any physical assistance to find documents within the often voluminous material provided in hard copy. If an interpreter is required there are additional difficulties which arise from the interpreter being situated away from the applicant. Even if an interpreter is not required, the applicant may have difficulties expressing themselves as well as they would like because English will often be their second language. In my experience, an applicant is more likely to be forthcoming with their evidence if they are in the same room as the person posing the questions. It is easier for the Tribunal member and the examiner to establish a rapport with the applicant when in the same room. The cumulative effect of these factors may create a difficult environment or at least one which is not conducive to the applicant giving fulsome evidence. These factors will need to be considered by the Tribunal member when determining whether to allow evidence to be given remotely by an applicant.
The negative impact of some of the above factors (but not all of them) may be ameliorated if there are regular breaks to allow the applicant to confer with their legal representative by phone or Microsoft Teams and if any documents are to be referred to, they are clearly paginated and provided in a bound volume.
It is particularly important that the Applicant in this case is given a fair opportunity to present his evidence because he is required by s 501CA(4) to make representations if he wants the decision by which his visa was cancelled to be revoked. The decision-maker undertakes the assessment as to whether there is another reason for revoking a cancellation decision by reference to the Applicant’s representations.[5] These representations will be both written and oral. The oral evidence of an applicant will assume a critical part of the representations that must be considered by the decision-maker.
The evidence from the respondent
[5] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [22]
In this case the onus is on the Respondent as the party seeking the direction for a video hearing under s 33A. It is appropriate that the Respondent has filed affidavit evidence in order to satisfy this onus. The Tribunal needs to be satisfied by cogent evidence that the Applicant will be afforded procedural fairness if he participates by video from a remote location away from his instructing solicitors. The Applicant must be given a reasonable opportunity to present his case and to make the representations required by the statutory regime in the Migration Act. In support of the contention that a s 33A direction should be made, the Respondent provided an affidavit from Mr Gerard Watts, an Australian Border Force Superintendent of Detention Management and Planning, who deposed:
(a)The applicant has not received any COVID-19 vaccinations;
(b)The applicant is categorised as a ‘high risk’ and ‘vulnerable’ detainee because of his child sex offending;
(c)Melbourne Immigration Transit Accommodation (MITA) is over capacity and experiencing a COVID-19 outbreak;
(d)Video conferencing is set up on Christmas Island and has been used on many occasions since re-opening in August 2020;
(e)There are limited flights available from Christmas Island and other logistical impediments; and
(f)Mr Watts would not be prepared to approve the applicant’s transfer to MITA.
Mr Watts deposed that the MITA was the only suitable facility to accommodate a high risk detainee in Melbourne. As at 13 July 2022, both MITA and NWPIDC were experiencing a COVID-19 outbreak. Health guidelines recommended against transfers of detainees in these circumstances. There were also significant logistical impediments to the transfer because the next available charter flight was 5 August 2022 and because there was no capacity within operational quarantine facilities in Melbourne. Allowing for seven days in quarantine, the applicant would not be able to attend the Tribunal before 13 August 2022 which is outside the 84 day rule imposed by s 500(6L) of the Migration Act.
Mr Watts concluded that he would not be prepared to approve the transfer of the Applicant to MITA due to his concerns about the safety of the Applicant and other detainees.
Mr Watts also deposed to the video-conferencing facilities on Christmas Island which had recently been upgraded. The facilities included landline phone, video-conferencing systems and internet rooms which had been used for court and tribunal hearings on many occasions.
My personal experience of hearings conducted by video from Christmas Island is that there have been no insurmountable difficulties with respect to the video and audio. If a difficulty did arise, it has been resolved in a relatively short time frame. The anecdotal evidence suggests that connectivity issues have been improved and this is consistent with the evidence of upgrades to the internet connection deposed to by Mr Watts.
Conclusion
The circumstances deposed to by Mr Watts are very extreme and put the Tribunal in a difficult position. The matter cannot be delayed and the transfer of the Applicant from Christmas Island to MITA is practically impossible due to the COVID-19 pandemic and the particular circumstances of the Applicant. In exercising a discretion, I must weigh these factors up against the concerns I have expressed about remote hearings but ultimately I must be satisfied that the Applicant can be afforded procedural fairness in a video hearing and that he is given a reasonable opportunity to present his case. What is reasonable must take into account all of the circumstances particular to the case including those deposed to by Mr Watts in his affidavit. In this case, I have placed significant weight on that affidavit evidence which if not present may have resulted in a different outcome.
I am satisfied that the internet connectivity and video quality at the North West Point Immigration Detention Centre is adequate. I am also satisfied that steps can be taken to ensure that the Applicant can confer with his solicitor and that documents are properly put before the Applicant. The potential difficulties arising from having an interpreter are not relevant because no interpreter is required at the hearing. I am satisfied that the Applicant can present his evidence and participate in the hearing by video in a way that accords him procedural fairness. An in person hearing would involve the transfer of the Applicant to the mainland which in this case is impracticable within the time frame required to hear the matter and due to the health issues arising from Covid-19.
In all the above circumstances, I direct that the Applicant participate by video pursuant to s 33A of the AAT Act.
I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones
..........................[sgd]..............................................
Associate
Dated: 28 April 2023
Date of hearing: 14 July 2022 Date final submissions received: 14 July 2022 Advocate for the Applicant: Nina Merlino Solicitors for the Applicant: Carina Ford Immigration Lawyers Advocate for the Respondent: Adrian Downie Solicitors for the Respondent: Australian Government Solicitor
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