HWTV v Minister for Immigration, Citizenship and Multicultural Affairs

Background 8 The applicant is a Turkish national who arrived in Australia in November 2014 holding a Student (Subclass 570) visa, which expired on 30 June 2015. 9 On 19 December 2014, the applicant applied for a Protection (Subclass 866) visa (Protection visa). On 22 December 2014, he was granted a Bridging visa that related to the Protection visa application. 10 In November 2016, the applicant was charged with two indictable offences. One charge of rape and one charge of sexual assault were prosecuted in the County Court of Victoria. On 12 July 2018, a jury convicted the applicant of rape and sexual assault. 11 On 8 November 2018, the applicant was made subject to a secure treatment order under s 276 of the Mental Health Act 2014 (Vic), and transferred to a high security mental health hospital for treatment. The applicant was discharged back to prison on 22 February 2019. 12 On 9 February 2018, the applicant's Bridging visa was cancelled under s 116(1)(e)(ii) of the Act. Section 116(1)(e)(ii) provides that the Minister may cancel a visa if he or she is satisfied that the presence of its holder in Australia is or may be, or would or might be, a risk to the health or safety of an individual or individuals. 13 On 9 May 2018, a delegate of the Minister refused the applicant's application for a Protection visa. 14 On 6 September 2019, the applicant was sentenced to six years' imprisonment for the rape conviction, and a further one year's imprisonment for the sexual assault, to be served concurrently. A non-parole period of four years was fixed. 15 On 2 December 2019, the Migration and Refugee Division of the Tribunal (MRD) set aside the delegate's decision to refuse to grant the applicant a Protection visa, and remitted the application for a Protection visa to the Minister with a direction that the applicant satisfies s 36(a) of the Act (which requires a decision-maker to be satisfied that a non-citizen has protection obligations because he is a refugee). 16 On 26 August 2020, the Court of Appeal of the Supreme Court of Victoria allowed an appeal against the applicant's rape and sexual assault convictions on the basis that the applicant was unfit to plead during his trial. The Minister submitted that the new trial is expected to be held in the course of 2023. 17 On 8 October 2020, the applicant applied for a Bridging E (Class WE) visa. A delegate of the Minister refused that application on 13 October 2020 on the basis that the delegate was not satisfied that the applicant would abide by certain of the conditions imposed on the visa for which the applicant applied. 18 On 26 October 2020, the MRD set aside the Bridging visa refusal decision of 13 October 2020, and remitted the decision to the Minister, with the direction that the applicant be found to meet cl 050.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (which requires the decision-maker to be satisfied that the applicant will abide by any conditions imposed on the visa). 19 On 28 November 2022, a delegate of the Minister again refused to grant the applicant's application for a Bridging E (Class WE) visa under s 501(1) of the Act (Refusal Decision). Section 501(1) provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The Refusal Decision relevantly stated: [The applicant] has not satisfied me that he passes the character test. I have decided to exercise my discretion under s 501(1) of the Act to refuse to grant [the applicant's] visa. I hereby refuse to grant [the applicant's] application for a Bridging E (Class WE) visa 20 The delegate's decision record (Decision Record) recorded that the delegate considered that the relevant ground of the character test in this case was s 501(6)(c)(ii) of the Act, which provides that a person does not pass the character test if, having regard to the person's past and present general conduct, the person is not of good character: at [5]. The delegate then went on to consider the applicant's past and present general conduct, including an alleged period of unlawfulness in Australia of 48 days after his bridging visa was cancelled on 9 February 2018, and the fact that the applicant was facing trial for charges of a "very serious nature": at [35]. The delegate therefore concluded that taking into account this conduct, the applicant was not of good character pursuant to s 501(6)(c)(ii) of the Act: at [37]. The delegate went on to consider whether to exercise the delegate's discretion to refuse to grant the applicant's application for a Bridging E (Class WE) visa (at [38]-[125]). After weighing a range of considerations, the delegate ultimately determined to exercise that discretion (at [125]). 21 The Decision Record also set out the relationship between the applicant's application for the Bridging E (Class WE) visa and his Protection visa application, a matter of relevance to the applicant's Anonym Request and certain of his grounds of review. At [13] of the Decision Record, the delegate noted that the applicant had made an application for a Protection visa, and this application remained ongoing. The delegate further stated that the applicant had applied for the Bridging E (Class WE) visa "for the purposes of remaining in Australia until the completion of his protection visa application": at [76].

Tribunal Proceeding 22 On 5 December 2022, the applicant lodged an application for review of the delegate's Refusal Decision with the Tribunal. The applicant's application for review relevantly set out the following reason for seeking a review of the Refusal Decision: The decision to refuse the application under s 501(6)(c)(ii) is made without a proper basis and no grounds for refusal can reasonably be said to arise. In the event the Tribunal does consider grounds for refusal arise, the discretion should be exercised in favor of not refusing the application. 23 In Applicant Affidavit #2, the applicant deposed that his lawyer had finalised his application for review online. However, it appears that, after this form was finalised, the applicant was not represented by a lawyer. The applicant deposed in Applicant Affidavits #1 and #2 that, after his application was finalised, he contacted the AAT Registry and informed them that his lawyer had made an application without following his instructions, the lawyer refused to represent him on the application, and requested that the Tribunal not arrange any hearing before 25 February 2023. 24 A directions hearing was conducted on 9 December 2022. The applicant joined by telephone. The applicant requested that he be provided with legal representation. He was told that legal representation was not for the Tribunal to arrange, and then rang off. The Tribunal member went on to make directions for the matter to be prepared for a hearing to be conducted via Microsoft Teams on 30 and 31 January 2023. The directions identified the applicant by the anonym "HWTV". 25 On 16 December 2022, the Federal Government announced that the Tribunal would be abolished and replaced by a new federal administrative review body. On 18 December 2022, the applicant emailed the Tribunal, requesting that, in light of the proposed abolition of the Tribunal, his case be reviewed by any newly appointed Tribunal members (presumably of the body that would replace the Tribunal). The Tribunal refused the applicant's request. 26 On 16 January 2023, the Tribunal issued a direction that, pursuant to s 35 of the Administrative Appeal Tribunal Act 1975 (Cth), the applicant's name be referred to by the anonym HWTV. The Tribunal's direction also precluded the publication of the applicant's name or other information that would tend to reveal his identity, other than to the parties, their representatives, anyone required to give evidence to the Tribunal, and Tribunal members and administrative staff (16 January 2023 Directions). 27 In Applicant Affidavits #1 and #2, the applicant deposed that, on the following day, he emailed the Tribunal and stated that he wanted his "name and all details publicly available because there is no reason to hide [them]". The applicant further deposed that, on 18 January 2023, the Tribunal informed him that the Tribunal would consider his "request for revocation of the confidentiality order in the course of the hearing [on 30 and 31 January 2023]". 28 On 18 January 2023, the Minister proposed consent orders to the applicant which provided that: 1. The decision of the delegate of the [Minister] dated 28 November 2022 to refuse to grant the applicant a Bridging (General) (BVE) (Class WE) visa be set aside. 2. The matter of whether the discretion found in s 501 (1) of the Migration Act 1958 (Cth) (the Act) is enlivened in the case of the applicant's application for a Bridging (General) (BVE) (Class WE) visa dated 8 October 2020 and, if so, whether it ought be exercised, be remitted for reconsideration by a delegate of the [Minister] in accordance with the Tribunal's direction that the applicant be considered not to fail the character test by reason of s 501 (6)(c) of the Act. 29 The applicant was not willing to consent to the application being finalised. 30 On 19 January 2023, the Minister requested that the Tribunal arrange a directions hearing, in order to consider how the proceeding might be finalised. The Tribunal arranged a directions hearing for 24 January 2023. The applicant refused to attend. In Applicant Affidavits #1 and #2, the applicant deposed that he did not attend this hearing because it was "unlawful". At the directions hearing, the Tribunal decided to proceed with the hearing listed for 30 and 31 January 2023. 31 On 30 January 2023, the Tribunal hearing was conducted by video-link to the detention centre, with a Turkish interpreter made available should the applicant require such assistance. At the hearing, the applicant contended that the 16 January 2023 Order should be rescinded. The applicant elected not to respond to the Minister's proposal that the Refusal Decision be set aside, and that the application for a Bridging visa be remitted to the Minister for reconsideration on the basis that the applicant not be found not to pass the character test pursuant to s 501(6)(c) of the Act. In Applicant Affidavit #2, the applicant deposed that he refused to respond until after the Tribunal provided him an explanation for the 16 January 2023 Directions and/or cancelled the Directions. 32 In Applicant Affidavits #1 and #2, the applicant also deposed that, during the hearing, he experienced connection problems with his video-link, and he informed the Tribunal member that he could not hear what his interpreter said, and the interpreter could not hear the Tribunal member properly. The applicant deposed that the Tribunal member did not fix the connection problems. 33 The Tribunal made an oral decision at the hearing on 30 January 2023 in the following terms: For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review (being a decision of a Delegate of the [Minister] dated 28 November 2022) and remits the matter for reconsideration in accordance with direction that the Applicant not be considered to not pass the character test by reason of s 501 (6)(c) of the Migration Act 1958. 34 The transcript of the 30 January 2023 hearing was not annexed to any of the affidavits relied on by either party in the proceeding before this Court.

Proceeding before This Court 35 By his originating application, the applicant seeks the following relief: 1. I want to appeal AAT member decision date on 30 January 2023 2. I want my case review under proper conditions for my defence and review with qualified Justice member from Federal Court Australia, New South Wales. 3. I want to defence about my case in the hearing and all case and hearing details publicly available. 4. I want to cancellation unlawful court order made from AAT member date on 16 January 2023 36 The applicant's originating application identifies nine grounds for his application. Those grounds can be summarised as follows: (a) Ground 1 - the applicant contends that the Tribunal unreasonably refused his request to adjourn the hearing scheduled for 30-31 January 2023 until he was able to secure legal representation; (b) Ground 2 - in light of the Federal Government's announcement that it will abolish the Tribunal, the applicant contends that he is entitled to have his case adjourned so that it can reviewed by a "qualified" Tribunal member; (c) Ground 3 - the applicant contends that it was unlawful for the Tribunal to make the 16 January 2023 Directions after what the applicant describes as the "defence response date", which I understand is the date that the applicant was required to lodge materials in support of his case; (d) Ground 4 - the applicant contends that the Tribunal should not have conducted a directions hearing on 24 January 2023 prior to determining his request that the 16 January 2023 Directions be rescinded; (e) Ground 5 - the applicant contends that the 16 January 2023 Directions were unlawfully made; (f) Ground 6 - the applicant contends that his request that the 16 January 2023 Directions be rescinded should have been determined before the hearing on 30 January 2023; (g) Ground 7 - the applicant contends that he had problems with hearing both the interpreter and the Tribunal at the 30 January 2023 hearing, and the Tribunal failed to fix them; (h) Ground 8 - the applicant contends that the 16 January 2023 Directions were unreasonable; (i) Ground 9 - the applicant contends that he was denied an opportunity to put his "defence" to the Tribunal during the hearing on 30 January 2023, and subsequently was unlawfully denied the opportunity to respond after the Tribunal member made its decision.

USE OF INTERPRETER AT hearing on 15 May 2023 37 The Minister's summary judgment application, and the applicant's Anonym Request, were heard on 15 May 2023. 38 At the hearing on 15 May 2023, the applicant, who was in detention, appeared via video-link. The Court facilitated the attendance at the hearing of a Turkish interpreter for the applicant at his request. The solicitor for the Minister appeared in person. 39 I invited the solicitor for the Minister, Mr Brown, to first make submissions on the Minister's summary judgment application and the Anonym Request. Shortly after Mr Brown began speaking, the applicant informed the Court that he could not be hear Mr Brown, and asked Mr Brown to repeat his submissions. Mr Brown repeated his oral submissions, which lasted approximately 5 minutes. During Mr Brown's submissions, and after those submissions concluded, the applicant complained that the interpreter had not translated Mr Brown's submissions. After Mr Brown's submissions concluded, I asked the interpreter to explain Mr Brown's submissions to the applicant. There was an exchange between the interpreter and the applicant. The interpreter informed the Court that he had previously been an interpreter for the applicant, and ordinarily would refuse to do so because the applicant would not allow him to speak. 40 Following an exchange between the interpreter and the applicant, the interpreter informed the Court that the applicant was alleging that Mr Brown had spoken for half an hour, and he did not understand a word of what Mr Brown had said, and requested that Mr Brown repeat his submission again. I declined this request. I asked the applicant, through his interpreter, to confirm if he had read the Minister's written submissions. The applicant informed the Court, through his interpreter, that he had read them partially. I had a further exchange with the applicant, through his interpreter, in which I explained that the Minister was seeking to have his proceeding dismissed because it served no purpose. At this point, the applicant began making submissions to the Court in English. The applicant made the entirety of his submissions in English and without the aid of an interpreter. 41 After the applicant's submissions concluded, I ruled that the applicant had a sufficient understanding of English to understand what had transpired at the hearing, and that consequently the interpreter was unnecessary. I reached this conclusion on the basis that the applicant had read the Minister's submissions, that during the hearing the applicant had communicated with Mr Brown and the Court in English, and that the applicant had made submissions to the Court in English without the aid of an interpreter.

Principles relating to summary judgment 42 Section 31A of the Federal Court Act relevantly provides: (2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is defending the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. (3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be: (a) hopeless; or (b) bound to fail; for it to have no reasonable prospect of success. 43 Rule 26.01(1)(a) of the Rules provides that a party may apply to the Court for an order that judgment be given against another party because, amongst other things, "the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding". 44 An application for summary judgment is directed to the underlying prospects of success of the proceeding: Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 at [23] (Spencer). The power to dismiss an action summarily is not to be exercised lightly: Spencer at [60]. However, the Court need not determine that the proceedings are "frivolous", "untenable" or "groundless": Spencer at [24], [53]-[60]. The critical question is whether the Court is satisfied that the party opposing the application for summary judgment has no reasonable prospect of success: Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) [2011] FCA 1126; 203 FCR 293 at [17]. 45 Finally, I note that s 37M(1) of the Federal Court Act requires that the Court seek to achieve "…the overarching purpose of the civil practice and procedure provisions … to facilitate the just resolution of disputes … according to law … and as quickly, inexpensively and efficiently as possible". Section 37M(2) provides that the overarching purpose includes the following objectives: (a) the just determination of all proceedings before the Court; (b) the efficient use of the judicial and administrative resources available for the purposes of the Court; (c) the efficient disposal of the Court's overall caseload…

Grounds 5 and 8 and the Anonym Request 46 It is convenient to consider Grounds 5 and 8 and the Anonym Request together, as they each relate to the power of the Tribunal and this Court to apply and remove an anonym. 47 Section 501K of the Act sets out the circumstances in which the Tribunal is not to publish the identity of certain applicants. Section 501K(1) states that the section applies to a review by the Tribunal if the review relates to a person in their capacity as, amongst other things, "a person who applied for a protection-related bridging visa". Section 501K(3) provides that an "application for a protection-related bridging visa means an application for a bridging visa, where the applicant for the bridging visa is, or has been, an applicant for a protection visa". Section 501K(2) provides that the Tribunal must not publish, in relation to a review, any information which may identify an applicant, or an applicant's relatives or dependants. 48 Similarly, s 91X of the Act sets out the circumstances in which the names of applicants for protection visas are not to be published by this Court. In an equivalent manner to s 501K(1), s 91X(1) states that the section applies to a proceeding if the proceeding relates to a person in the person's capacity as, amongst other things, "a person who applied for a protection-related bridging visa". Section 91X(3) provides an identical definition of an "application for a protection-related bridging visa" as that contained in s 501K(3). Section 91X(2) provides that the Court must not publish in relation to the proceeding, the person's name. 49 In the Tribunal proceeding in which the 16 January 2023 Directions were made, being the proceeding the subject of the judicial review application before this Court, the applicant sought review of a delegate's decision concerning a bridging visa which was being sought pending determination of the applicant's application for a Protection visa. In these circumstances, the Tribunal proceeding and the proceeding before this Court were proceedings relating to the applicant in his capacity as a person who applied for a protection related bridging visa, within the meaning of s 501K(1) and s 91X(1) of the Act respectively. In these circumstances, both the Tribunal and this Court are statutorily barred from publishing the applicant's name under s 501K(2) and s 91X(2). 50 In Applicant Affidavit #2, and during the hearing, the applicant emphasised that various newspaper articles had identified him and the fact that he had applied for a Protection visa. In these circumstances, the applicant submitted that the fact that he had applied for a Protection visa was no longer a secret. He also observed that the Department of Immigration had not taken any action to have those newspaper articles removed. In Applicant Affidavit #1, the applicant further contended that it was unreasonable for the Tribunal to make the 16 January 2023 Directions in circumstances where he wanted to share his details with the public. Notwithstanding, s 501K(2) and s 91X(2) are squarely engaged by the subject-matter in the Tribunal proceeding and the proceeding before this Court, and the Tribunal and the Court have no discretion to publish the applicant's name when those sections are engaged. 51 It follows that the applicant has no reasonable prospect of successfully establishing that the Tribunal erred by making the 16 January 2023 Directions. It is also my opinion that this Court was correct to adopt an anonym for the applicant in this proceeding, and must reject the applicant's Anonym Request.

Grounds 1, 3, 4, 6, 7 and 9 52 Grounds 1, 3, 4, 6, 7 and 9 allege various purported procedural irregularities in the conduct of the Tribunal hearing. In these grounds, the applicant contends that: his request to adjourn any hearing until he was able to secure legal representation was unreasonably refused; the 16 January 2023 Directions should not have been issued after the "defence response date"; his request that the 16 January 2023 Directions be rescinded should have been determined before the case management hearing was conducted on 24 January 2023 and before the substantive hearing on 30 January 2023; he had problems with hearing both the interpreter and the Tribunal at the 30 January 2023 hearing; and he was denied an opportunity to put his "defence" to the Tribunal. 53 Whatever the merits of those contentions, they each suffer from the same fundamental flaw - they are superseded by the Tribunal's decision on 30 January 2023. It is necessary to return to the background to the Tribunal's decision to explain why this is the case. 54 As set out at [19]-[20] above, the delegate made the Refusal Decision on character grounds under s 501(1) of the Act. The only ground of the character test applied by the delegate was the character test set out in s 501(6)(c)(ii), which relates to past and present conduct. 55 As set out at [22] above, the applicant's application for review of the Refusal Decision, as lodged with the Tribunal on 5 December 2022, sought relief on the basis that the decision to refuse the applicant's application under sub-paragraph 501(6)(c)(ii) of the Act was made without a proper basis and no grounds for refusal could be said to arise. Alternatively, the applicant contended that in the event the Tribunal did consider grounds for refusal arose, the discretion should be exercised in favour of not refusing the application. Given that the Refusal Decision rested on the delegate's finding that the applicant did not pass the character test set out in s 501(6)(c)(ii), if the Tribunal granted the applicant the primary relief he sought, that would remove the entire foundation for the delegate's Refusal Decision. 56 The Minister's concession that the Refusal Decision should be set aside, and that the application for a Bridging E (Class WE) visa be remitted to the Minister for reconsideration with a direction that the applicant not be found not to pass the character test provided the applicant with the relief sought in his application for review. 57 The Tribunal attempted to conduct a Directions Hearing on 24 January 2023 to discuss the Minister's concession, but the applicant elected not to attend. The Tribunal then conducted a hearing on 30 January 2023, at which the applicant elected not to respond to the Minister's proposed concession. The Tribunal made an oral decision to set aside the Refusal Decision under review, and to remit the application for a Bridging E (Class WE) visa to the Minister, with a direction that the applicant not be found not to pass the character test by reason of s 501(6)(c) of the Act. 58 It follows that, in the Tribunal proceeding, the applicant was successful in obtaining the primary relief sought in his application for review. That relief set aside the delegate's Refusal Decision. Any future decision by a delegate of the Minister on the applicant's application for a Bridging E (Class WE) visa must now proceed on the basis that the applicant not be considered to not pass the character test by reason of s 501 (6)( c) of the Act, which was the sole basis of the delegate's Refusal Decision. 59 In these circumstances, on an application for judicial review of the Tribunal's decision, this Court is unable to grant any further relief beyond that already granted under the Tribunal's decision. It follows that each of Grounds 1, 3, 4, 6, 7 and 9 are inutile, as even if the contentions underlying those grounds are made out, they cannot change the Tribunal's decision. 60 It is well-established that an absence of utility is one reason why a court may, as a matter of discretion, refuse to grant a judicial review remedy: Rana v Repatriation Commission [2011] FCAFC 123; 196 FCR 137 at [28]; Gill v Minister for Immigration and Border Protection [2017] FCAFC 51; (2017) 250 FCR 309 at [95]. Having considered the materials filed by the applicant in advance of the hearing, and his submissions during the hearing, I am satisfied that the present circumstances warrant the exercise of discretion to refuse a judicial review remedy to the applicant. I consider that the applicant has no reasonable prospect of successfully prosecuting Grounds 1, 3, 4, 6, 7 and 9.

Ground 2 61 By Ground 2 of the applicant's originating application, the applicant contended that he was entitled to have his hearing adjourned for review by a qualified Tribunal member. On 16 December 2022, the Federal Government announced that the Tribunal would be abolished and replaced by a new federal administrative review body. In Applicant Affidavit #1 and Applicant Affidavit #2, the applicant deposed that the Government had stated the reason for abolishing the Tribunal was that the Tribunal was comprised of "unqualified people who had Liberal Party connections". On 18 December 2022, the applicant emailed the Tribunal, referring to newspaper articles concerning the abolition of the Tribunal and the Government's proposal to appoint about 75 additional members to the Tribunal, and stated that he wanted his case reviewed by one of the 75 additional members. The Tribunal refused to adjourn the hearing on the basis of this request. 62 During the hearing, the applicant emphasised Ground 2 in response to questions and propositions put by me about the purpose of the proceeding before this Court. I put to the applicant that the Minister was seeking to dismiss the proceeding because the applicant had been granted all the relief that he had sought before the Tribunal. The applicant's response was as follows: After this argument, which is the Department of Immigration made 296 pages arguments against me, and all of this arguments - I have rights. I would like to discuss in the court qualified enough members, and I would like to response all the arguments in the court, by law. This is my right. The Department of Immigration can't say "we not give you visa because of this, because of that", and after five years, they say we change the decision. No. No. They change the decision after defences was finished, after I made AAT court application … So after - your Honour, after my application, the Department of 20 Immigration changed the idea, but doesn't matter. I would like to discuss all the details, all the arguments against me, because it has caused me five years. This is not a game. I would like to discuss in the new Federal body. As you know, AAT abolish. So I - and my case review aren't qualified person. What I want from the beginning, and they refused it unlawfully, I would like to discuss all details with 25 qualified-enough member, in the court - in the AAT or, how do you call it, new Federal body, and I want everything publicly available. That's it. 63 I understand from this response that the applicant's position was that the purpose of Ground 2 of his judicial review application was to secure orders remitting the application for review of the Refusal Decision to a newly constituted Tribunal comprised of "qualified" Tribunal members, at which point the applicant anticipated he would have the opportunity to prosecute his case in greater detail. 64 It is beyond the Court's power to grant the relief sought by the applicant on his judicial review application under Ground 2. The Tribunal also did not err in refusing to adjourn the hearing of the Tribunal proceeding on the basis of his request in his email of 18 December 2022. The applicant has no reasonable prospect of successfully prosecuting Ground 2.

DISPOSITION 65 For the reasons set out above, I am satisfied that the applicant has no reasonable prospect of successfully prosecuting the application for review as filed in this Court. 66 I consider it is appropriate, and consistent with the objectives in s 37M of the Federal Court Act, for the Court to allow the Minister's summary judgment application, and for the applicant's originating application to be dismissed. 67 The application for review accepted for filing by this Court on 7 March 2023 is summarily dismissed. The applicant will pay the Minister's costs of the application for review. I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson.