SGTX and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

This matter concerned an application to the Administrative Appeals Tribunal (AAT) by an applicant whose visa had been mandatorily cancelled on character grounds. The applicant was detained on Christmas Island and sought to attend his hearing in person in Melbourne. The Minister for Immigration, Citizenship and Multicultural Affairs opposed the transfer, citing significant logistical and public health impediments, including COVID-19 outbreaks in detention centres. The Tribunal was therefore required to determine whether the applicant should be directed to participate in the hearing by video link.

The central legal issue was whether procedural fairness could be afforded to the applicant by means of a video link, given the practical difficulties and risks associated with his transfer from Christmas Island to Melbourne. The Tribunal considered the provisions of section 33A of the *Administrative Appeals Tribunal Act 1975*, which allows the Tribunal to permit a person to participate in a hearing by video link. The Tribunal also had regard to its own COVID-19 Special Measures Practice Direction, which outlined relevant considerations for determining the mode of hearing, including the capacity of a party to participate and COVID-19 conditions.

The Tribunal reasoned that it did not have the power to compel the respondent to arrange the applicant's transfer. Furthermore, it found that significant logistical impediments and public health considerations, particularly in light of COVID-19, weighed against such a transfer. The Tribunal noted that there were no medical impediments preventing the applicant from giving evidence by video, that the internet connection on Christmas Island was adequate, and that arrangements could be made for the applicant to give instructions. Drawing on judicial commentary from cases such as *ASIC v GetSwift Ltd* and *Tetley v Goldmate Group Pty Ltd*, the Tribunal concluded that video conferencing could effectively facilitate a procedurally fair hearing, with no significant diminution in the ability to assess evidence or demeanour.

Accordingly, the Tribunal directed that the applicant participate in the hearing by video link from Christmas Island under section 33A of the *Administrative Appeals Tribunal Act 1975*.