Chapter 3: Our performance

Contents

Annual Performance Statement
Financial performance
Caseload overview
Operation of divisions
External scrutiny
Service to users
Communication and engagement

Annual Performance Statement

Introductory statement

I, Sian Leathem, as the accountable authority of the AAT present the 2017–18 annual performance statement of the AAT, as required under paragraph 39(1)(a) of the Public Governance, Performance and Accountability Act 2013. In my opinion, this annual performance statement is based on properly maintained records, accurately reflects the performance of the entity and complies with subsection 39(2) of the Public Governance, Performance and Accountability Act.

Our purpose

The role of the AAT is to provide independent review on the merits of a wide range of administrative decisions made under the laws of the Commonwealth of Australia and of Norfolk Island. Merits review of an administrative decision involves considering afresh the facts, law and policy relating to that decision. We decide what is the correct or preferable decision based on the material before us and may affirm, vary or set aside the decision under review.

The AAT’s objective is set out in section 2A of the Administrative Appeals Tribunal Act. In carrying out our functions, the AAT must pursue the objective of providing a mechanism of review of administrative decisions that:

is accessible
is fair, just, economical, informal and quick
is proportionate to the importance and complexity of the matter, and
promotes public trust and confidence in the decision-making of the AAT.

The AAT provides administrative justice for individuals and organisations seeking to challenge decisions that affect their interests and, more broadly, contributes to improving the quality of government decision-making.

Results

Performance criterion 1: Number of applications finalised

This criterion is an indicator of the scale of the AAT’s activity in carrying out our role of reviewing decisions that affect the interests of individuals and organisations.

Target

44,410 applications finalised in 2017–18

Criterion source

AAT Corporate Plan 2017–18 (page 7) and Program 1.1, 2017–18 Portfolio Budget Statements, Attorney-General’s Portfolio (page 48)

Result

The AAT finalised 40,040 applications in 2017–18, five per cent fewer than the 42,224 applications finalised in 2016–17 but five per cent more than the 38,146 applications finalised in 2015–16. In relation to the two divisions with the highest volume of work, the Migration and Refugee Division finalised 17,960 applications (five per cent fewer than last year) and the Social Services and Child Support Division finalised 15,075 applications (eight per cent fewer than last year). Our six other divisions finalised 7,005 applications (one per cent more than last year).

The number of applications finalised in 2017–18 is 10 per cent lower than the target set out in the Portfolio Budget Statements. While the decrease in finalisations in the Social Services and Child Support Division reflects fewer lodgements in that division in 2017–18, the overall number of applications lodged with the AAT and the number of cases we have on hand continued to grow in 2017–18, particularly in the Migration and Refugee Division. The below target performance for finalisations is primarily due to the fact that the AAT’s ability to finalise applications is dependent on the resources, particularly the number of members, available to deal with our caseload. The number of reviews completed reflects what we were able to achieve with the members appointed to the AAT during the reporting year.

Further information relating to workload by division and major areas of work within divisions, including the number of applications finalised, can be found in Tables 3.4, 3.5 and 3.9.

Performance criterion 2: Proportion of applications finalised within a time standard

This criterion is an indicator of the extent to which the AAT is providing a mechanism of review that is quick.

Target

75 per cent of applications finalised within 12 months of lodgement

Criterion source

AAT Corporate Plan 2017–18 (pages 7–8) and Program 1.1, 2017–18 AAT Portfolio Budget Statements, Attorney-General’s Portfolio (page 48)

Result

In 2017–18, 77 per cent of applications were finalised within 12 months of lodgement, two percentage points above the target. However, the result is two percentage points lower than the 80 per cent achieved in 2015–16 and five percentage points lower than the 82 per cent achieved in 2016–17.

The time taken to finalise applications varies between the AAT’s divisions and for different types of cases based on a diverse range of factors, including the nature and complexity of the cases, differences in the procedures that apply to the review of decisions, the priority given to certain types of cases and the overall level of resources available to deal with applications. The 75 per cent target for the AAT as a whole takes into account these variations.

We continued to finalise a high proportion of applications within 12 months of lodgement in the General, National Disability Insurance Scheme, and Social Services and Child Support Divisions. Our timeliness performance declined, however, in other divisions, including the Migration and Refugee, Taxation and Commercial, and Veterans’ Appeals Divisions. As for performance criterion 1, the key factor contributing to increases in the time taken to finalise applications is the number of members available to deal the AAT’s caseload, particularly the growing backlog of cases in the Migration and Refugee Division.

Further information relating to the timeliness of the review process by division and major areas of work within divisions can be found in Tables 3.4, 3.5 and 3.9.

Performance criterion 3: Proportion of appeals against AAT decisions allowed by the courts

This criterion is an indicator of the extent to which the AAT is providing a mechanism of review that is fair and just and that promotes public trust and confidence in the AAT’s decision-making.

Target

Number of appeals allowed is less than five per cent of all AAT decisions that could have been appealed

Criterion source

AAT Corporate Plan 2017–18 (pages 8–9)

Result

The number of appeals allowed in 2017–18 amounted to 3.1 per cent of decisions made by the AAT in 2016–17 that could have been appealed to the courts.

Our decisions may be appealed to the courts and an appeal may be allowed if the AAT has made an error of law in relation to how the review was conducted or in reaching the decision. This criterion looks at the number of appeals allowed by the courts in the most recent financial year against the number of appealable decisions made by the AAT in the previous year on the basis that a majority of appeals lodged in relation to decisions made in a year are finalised in the following year.

The result for the AAT as a whole in 2017–18 is nearly two percentage points better than the target and is consistent with the results in 2015–16 (3.3 per cent) and 2016–17 (3 per cent). The vast majority of appeals finalised relate to decisions of the Migration and Refugee Division, or the former Migration Review Tribunal and Refugee Review Tribunal. The result for the Migration and Refugee Division for 2017–18 on this indicator (3.6 per cent) is consistent with previous years. For the Social Services and Child Support Division, there was a decrease in the proportion of appeals allowed in 2017–18 (0.1 per cent) while the result was slightly higher for the remaining divisions. The number of appeals against decisions made in these divisions continued to be relatively low.

Further information relating to outcomes of appeals by division can be found in Tables 3.12 and A4.5.

Performance criterion 4: Number of AAT decisions published

This criterion is an indicator of the extent to which the AAT is providing a mechanism of review that is accessible and promotes public trust and confidence in our decision-making.

Target

At least 4,000 decisions published

Criterion source

AAT Corporate Plan 2017–18 (page 9)

Result

4,918 AAT decisions made in 2017–18 were published.

The AAT may publish our decisions and the reasons for them, subject to the requirement not to publish information, the disclosure of which is prohibited or restricted by legislation or by an order of the Tribunal. Since 27 November 2017, the AAT publishes decisions in accordance with our revised Publication of Decisions Policy. It specifies that we will publish a randomly selected proportion of written decisions in the high-volume categories of cases in the Migration and Refugee Division and in child support cases in the Social Services and Child Support Division, and all written decisions in other types of cases, subject to confidentiality requirements. Publishing statements of reasons for AAT decisions promotes the transparency of our operations by informing parties, representatives and the general public about the work of the Tribunal.

The result for 2017–18 well exceeds the target. The number of published decisions made in 2017–18 is also significantly greater than the approximately 3,000 decisions made in 2015–16 and 2,500 decisions made in 2016–17 that have been published.

Further information relating to the publication of decisions can be found in Chapter 3.

Analysis of performance against our purpose

The AAT operates in a dynamic environment. We are a demand-led organisation and do not control the type or volume of applications made to us which relate to decisions made across the spectrum of Australian Government activity. The number of applications lodged with the AAT grew by 14 per cent in 2017–18 to 58,780, after a 24 per cent increase in the previous year, driven primarily by increases in lodgements in the Migration and Refugee Division. There are constraints in our ability to easily adjust our resources to respond to changes in the caseload. In particular, the appointment of the members who hear and decide cases is a matter for government. Any newly appointed members also require time to develop their knowledge and capacity.

During 2017–18 the AAT continued to progress the significant change program arising from the amalgamation of the MRT, RRT and SSAT with the AAT on 1 July 2015. Key projects included completing the co-location of our offices across Australia, ongoing trials of improvements in our case management approaches, the integration of our registry services, improving our accessibility, the consolidation of our ICT infrastructure and work on our digital strategy. These projects required the engagement of members and staff across the AAT while we carried out our core function of reviewing decisions.

Within this operational context, we continued to provide a mechanism of review of administrative decisions in accordance with our statutory objective in 2017–18. While we did not reach the target set out in our Corporate Plan in relation to finalisations and have been unable to keep pace with the increase in lodgements, these matters were largely beyond our control. We exceeded our other performance targets relating to the timeliness and quality of our processes and decision-making, and the publication of our decisions. We also had in place a range of mechanisms to promote the accessibility of our services, including free access to interpreters, availability of information about our role and procedures in a range of languages and formats, and the conduct of hearings in regional locations. As a result of our work during 2017–18, a significant number of individuals and organisations continued to be able to exercise their right to challenge administrative decisions, contributing to the accountability and transparency of government.

Financial performance

The 2017–18 financial statements for the AAT report total revenue from ordinary activities of $153.9 million and expenses of $154.1 million. When depreciation of $10.0 million is excluded, there was a surplus of $9.8 million. This surplus was largely due to lower than anticipated operating costs, particularly in relation to members and staff. We expect costs in these areas to increase in 2018–19 and the forward years to address our increasing workloads.

At 30 June 2018, the AAT was in a sound position in relation to net worth and liquidity, reporting net assets of $86.6 million, represented by assets of $144.7 million and liabilities of $58.1 million. We had unspent appropriations totalling $81.1 million of which $0.4 million was held in cash. Unspent appropriations are available to settle liabilities as and when they fall due and for future asset replacements and improvements.

We administered application fees on behalf of the government. Details of administered revenue are set out in the financial statements.

The financial statements for 2017–18, which commence on page 71, have been audited by the Australian National Audit Office.

The tables summarising our total resourcing, total payments and total expenses for the reporting year are in Appendix 3.

Caseload overview

The AAT received 58,780 applications and finalised 40,040 applications in 2017–18. There were 53,282 applications on hand at 30 June 2018. Chart 3.1 illustrates the number of applications lodged and finalised in the last three financial years, and the number of applications on hand at 30 June in each year.

Chart 3.1 Total applications lodged, finalised and on hand, 2015–16 to 2017–18

The number of applications lodged with us in 2017–18 was 14 per cent higher than the number lodged in 2016–17, which was 24 per cent higher than the number of lodgements in the previous year. Finalisations in the reporting period fell by five per cent from the 42,224 applications finalised in 2016–17. The overall number of applications on hand at 30 June 2018 is 54 per cent higher than at 30 June 2017.

Chart 3.2 Applications lodged, finalised and on hand, 2017–18 – By division

As shown in Chart 3.2, the size of our workload varies significantly between divisions: 65 per cent of applications made in 2017–18 were in the Migration and Refugee Division, 23 per cent in the Social Services and Child Support Division and nine per cent in the General Division. Fewer than four per cent of lodgements were dealt with in the FOI, NDIS, Security, Taxation and Commercial, and Veterans’ Appeals Divisions.

We finalised more applications than we received in the reporting period in the FOI, Security, Social Services and Child Support, and Veterans’ Appeals Divisions with a clearance rate close to 100 per cent achieved in the General Division. Clearance rates were lower in the other divisions, particularly the Migration and Refugee Division, and the National Disability Insurance Scheme Division, which experienced significant increases in lodgements.

Of the 53,282 applications on hand at 30 June 2018, 83 per cent were in the Migration and Refugee Division, seven per cent in the General Division and five per cent in the Social Services and Child Support Division. Applications in the FOI, NDIS, Security, Taxation and Commercial, and Veterans’ Appeals Divisions made up the remaining five per cent of current applications.

More detailed information about the operations of the AAT’s divisions is set out below. Information about the types of applications lodged and finalised in 2017–18 is also available in Appendix 4.

Applications made to us may be finalised in different ways as illustrated in Chart 3.3. In 2017–18, the majority of applications were finalised by the Tribunal making a decision on the review, generally after conducting a hearing but on the papers in certain circumstances. In seven per cent of finalised cases, the reviewable decision was either affirmed, varied or set aside by a consent agreement reached between the parties. Around a third of applications were withdrawn, finalised on the basis that they did not meet the requirements for a valid application or otherwise dismissed without the Tribunal reviewing the decision. Higher proportions of applications were withdrawn or failed to meet application requirements in 2017–18 compared with the previous year, particularly in the Migration and Refugee Division.

The Tribunal changed the decision under review in 23 per cent of all applications finalised in 2017–18, three percentage points lower than the result for 2016–17. Further information on outcomes of reviews by division and major areas of work within certain divisions is available in Appendix 4.

Chart 3.3 Mode of finalisation of applications for review of decisions, 2017–18^a

^a ‘By decision’ are applications finalised by a decision of the AAT on the merits under section 43 of the Administrative Appeals Tribunal Act or section 349 or 415 of the Migration Act. ‘No jurisdiction’ are applications finalised on the basis that the decision is not subject to review by the AAT, the applicant does not have standing to apply for a review, the application has not been made within a prescribed time limit, the AAT has refused to extend the time for applying for a review or the application fee has not been paid. ‘By consent’ are applications finalised in accordance with terms of agreement reached by the parties under section 34D, 42A(1) or 42C of the Administrative Appeals Tribunal Act. ‘Dismissed by Tribunal’ are applications dismissed for failure to appear before the Tribunal, failure to proceed with an application or comply with a direction of the Tribunal or on the basis that the application is frivolous, vexatious, misconceived, lacking in substance, has no reasonable prospect of success or is an abuse of the process of the AAT.

Operation of divisions

This section provides more information on the operations of the AAT’s eight divisions in 2017–18.

Freedom of Information, General, National Disability Insurance Scheme, Security, Taxation and Commercial, and Veterans’ Appeals Divisions

The FOI, General, NDIS, Security, Taxation and Commercial, and Veterans’ Appeals Divisions deal with a wide variety of reviewable decisions. There was a marginal increase in workload in these divisions in the reporting year: 7,412 applications were lodged compared to 7,372 in 2016–17.

Key statistics in relation to workload and timeliness for each of the divisions and major areas of work within divisions for the last three financial years are set out in Table 3.4.

Table 3.4 Caseload overview, 2015–16 to 2017–18 – FOI, General, NDIS, Security, Taxation and Commercial, and Veterans’ Appeals Divisions
DIVISION/AREA OF WORK	LODGED	FINALISED	ON HAND AT YEAR END	% FINALISED WITHIN 12 MONTHS	MEDIAN TIME TO FINALISE (WEEKS)
2015–16
Freedom of Information	37	57	60	81%	34
General	5,460	4,764	3,556	84%	22
Centrelink (2nd review)	2,463	2,314	1,224	92%	20
Workers’ compensation^a	1,797	1,373	1,756	65%	41
Other	1,200	1,077	576	91%	12
National Disability Insurance Scheme	48	33	27	97%	17
Security	16	14	13	64%	29
Taxation and Commercial	1,057	1,268	1,331	71%	30
Taxation	921	1,136	1,251	68%	32
Other	136	132	80	82%	24
Veterans’ Appeals^a	342	365	333	66%	40
TOTAL	6,960	6,501	5,320	79%	26
2016–17
Freedom of Information	44	37	66	65%	38
General	5,798	5,414	3,909	82%	24
Centrelink (2nd review)	2,532	2,456	1,272	91%	21
Workers’ compensation^a	1,919	1,659	2,003	61%	42
Other	1,347	1,299	634	91%	13
National Disability Insurance Scheme	215	89	151	99%	9
Security	10	10	11	80%	41
Taxation and Commercial	975	1,051	1,222	74%	27
Taxation	854	920	1,152	70%	29
Other	121	131	70	87%	20
Veterans’ Appeals^a	330	308	354	62%	43
TOTAL	7,372	6,909	5,713	78%	26
2017–18
Freedom of Information	47	50	63	65%	37
General	5,300	5,234	3,819	81%	25
Centrelink (2nd review)	1,919	2,267	920	90%	22
Workers’ compensationa	1,583	1,540	1,877	57%	47
Other	1,798	1,427	1,022	92%	13
National Disability Insurance Scheme	802	441	515	98%	19
Security	7	10	8	50%	54
Taxation and Commercial	895	790	1,325	63%	35
Taxation	826	717	1,260	62%	36
Other	69	73	65	67%	30
Veterans’ Appeals	361	480	418	56%	47
TOTAL	7,412	7,005	6,148	80%	26

^a For 2015–16 and 2016–17, applications for review of decisions about defence-related claims under the Safety, Rehabilitation and Compensation Act 1988, while formally allocated to the Veterans’ Appeals Division, were included in the figures for ‘Workers’ compensation’. For 2017–18, all applications of this kind as well as applications for review of decisions under the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 are included in the figures for the Veterans’ Appeals Division.

General Division

The General Division had the largest caseload of these divisions in the reporting year. The areas of work with the largest volume of applications were second review of Centrelink decisions and the review of decisions made under Commonwealth workers’ compensation legislation.

There was a 24 per cent reduction in applications for second review of Centrelink decisions in 2017–18. This can be attributed to a decrease in the number of first review applications finalised by the Social Services and Child Support Division during the reporting year as well as a slight decline in the rate of parties seeking second review of decisions. Applications relating to disability support pension constituted 47 per cent of lodgements in this area of work, with applications relating to age pension, family tax benefit and newstart allowance making up a further 31 per cent. We maintained our overall timeliness in dealing with these applications in 2017–18 with a median finalisation time of 22 weeks.

In relation to the workers’ compensation jurisdiction, legislative changes that commenced on 12 October 2017 had the effect that claims relating to members of the Australian Defence Force and their dependants previously dealt with under the Safety, Rehabilitation and Compensation Act 1988 became subject to the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988. Data relating to applications for review of decisions of this kind have been included in the Veterans’ Appeals Division figures for this reporting year. When these matters are excluded, there was a nine per cent decrease in the number of lodgements about decisions under the Safety, Rehabilitation and Compensation Act 1988 and the Seafarers Rehabilitation and Compensation Act 1992 in 2017–18. The proportion of applications finalised within 12 months was four per cent lower than the 61 per cent result achieved in 2016–17 and the median time taken to finalise cases increased to 47 weeks. These cases are complex and a significant amount of investigation and evidence gathering, particularly in relation to medical evidence, takes place only after an application is lodged with the AAT which can extend the review process. The availability of members to hear and decide these cases in some registries was also a contributing factor.

The next largest volume of applications in the General Division were reviews of decisions about Australian citizenship and visa decisions relating to character. Applications for review of decisions about citizenship grew by 88 per cent in 2017–18 to 605. Of the 484 applications finalised in the reporting year, the AAT changed the decision under review in 19 per cent of cases: 14 per cent in accordance with the terms of a consent agreement reached between the applicant and the Minister and five per cent by way of decision following a hearing. The proportion of applications in which decisions were set aside was marginally lower than in 2016–17. In 15 per cent of cases, the AAT affirmed the decision under review. Thirty-eight per cent of applications were withdrawn while the remainder failed to meet the requirements for a valid application (20 per cent) or were otherwise dismissed (8 per cent).

Applications for review of decisions about visas made on character-related grounds rose from 183 in 2016–17 to 235 in 2017–18. These were applications about:

decisions to refuse or cancel a visa under section 501 of the Migration Act: 94 applications
decisions under section 501CA of the Migration Act not to revoke a mandatory visa cancellation under section 501: 130 applications, and
decisions to refuse a protection visa relying on sections 5H(2), 36(1C) or 36(2C)(a) or (b) of the Migration Act: 11 applications.

Most of the applications relating to decisions under sections 501 and 501CA of the Migration Act were required to be dealt with on an expedited basis and finalised within 12 weeks after the applicant was notified of the decision. These cases are prioritised over other types of cases.

Of the 230 applications finalised in 2017–18, the decision under review was changed in 23 per cent of cases, one per cent in accordance with terms of agreement reached between the applicant and the Minister and the remainder by way of decision following a hearing. The AAT affirmed the decision under review in 56 per cent of cases. For the 146 applications relating to the cancellation of a visa on character grounds, including decisions under section 501CA, the decision under review was changed in 16 per cent of cases and affirmed by the Tribunal in 61 per cent. The proportion of applications in which the decision was set aside was marginally higher in this reporting period than in 2016–17. Approximately 21 per cent of all applications were withdrawn, did not meet the requirements for a valid application or were otherwise dismissed.

Freedom of Information Division

The FOI Division deals with applications for review of decisions made under the Freedom of Information Act 1982 and the Privacy Act 1988 as well as decisions made under the Archives Act 1983 (except for those in respect of access to a record of the Australian Security Intelligence Organisation). There was a slight increase in the number of applications lodged in 2017–18 with 38 relating to freedom of information decisions. The overall caseload remains low.

National Disability Insurance Scheme Division

As the NDIS is rolled out across Australia, the number of applications for review of decisions made under the National Disability Insurance Scheme Act 2013 continues to grow. Lodgements increased from 215 in 2016–17 to 802 in 2017–18 with significant increases experienced in New South Wales, Victoria, Queensland, South Australia and the Australian Capital Territory. Applications about plans for participants in the Scheme, primarily whether the funding for supports approved by the National Disability Insurance Agency is reasonable and necessary, continued to be the most common type of application, constituting almost 60 per cent of all lodgements. However, there was a marked increase in the proportion of applications relating to whether a person is eligible to access the Scheme, up from approximately 24 per cent in 2016–17 to 42 per cent in 2017–18.

Consistent with previous years, only a small proportion of applications were finalised by way of a Tribunal hearing and decision in the reporting year. The majority of applications were resolved during our pre-hearing processes, finalised either in accordance with terms of agreement reached between the applicant and the National Disability Insurance Agency (43 per cent) or withdrawn (39 per cent). The AAT changed the decision under review in 42 per cent of applications, 40 per cent by consent of the parties.

We continued to finalise most applications within 12 months of lodgement in 2017–18 with a median time to finalisation of 19 weeks.

Security Division

The Security Division deals with applications for review of security assessments made by the Australian Security Intelligence Organisation under the Australian Security Intelligence Organisation Act 1979 and applications about decisions under the Archives Act in respect of access to an ASIO record. The number of applications dealt with by the Division in 2017–18 was low, consistent with previous years.

Taxation and Commercial Division

Applications for review of decisions of key Australian Government regulators are allocated to the Taxation and Commercial Division, including decisions made by the Australian Financial Security Authority, the Australian Prudential Regulation Authority, the Australian Securities and Investments Commission, the Australian Taxation Office and the Tax Practitioners Board. The Division also manages some other types of applications formally allocated to the General Division that benefit from the case management approach set out in the Review of Taxation and Commercial Decisions Practice Direction.

The number of applications for review of taxation decisions lodged in 2017–18 was marginally lower than in the previous year, continuing the trend of recent years. There were also fewer lodgements across the range of commercial decisions that the AAT can review. There was a decrease in the number of applications finalised in the reporting year and an increase in the average number of weeks taken to finalise cases. Key factors contributing to this result include a decrease in the number of members with taxation and commercial expertise available to deal with the caseload, the complexity of the cases and the finalisation of a number of longstanding applications during 2017–18.

Veterans’ Appeals Division

The Veterans’ Appeals Division reviews a range of decisions made about benefits for current and former members of the Australian Defence Force and their dependants, including under the Military Rehabilitation and Compensation Act 2004, the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 and the Veterans’ Entitlements Act 1986. There were fewer lodgements in relation to all three areas of decision-making in 2017–18. In particular, the number of applications under the Military Rehabilitation and Compensation Act fell by almost 60 per cent due to the introduction of the single appeal pathway for decisions under the Act which means decisions are first reviewed by the Veterans’ Review Board. The proportion of applications finalised within 12 months declined further in 2017–18. As with the workers’ compensation jurisdiction, the time required to gather additional evidence in these types of cases can prolong the review process.

Alternative dispute resolution

Given the diversity of applications dealt with by these divisions, a range of strategies are employed to ensure individual matters or particular cohorts of cases are dealt with in the most appropriate and efficient way. The AAT uses ADR in all of these divisions, other than the Security Division, to help parties understand and narrow the issues in dispute, identify further evidence that will be gathered, and try to reach agreement about how their case should be resolved. During the reporting year, 80 per cent of applications in these divisions were finalised without the AAT making a decision following a hearing. At least one ADR process was held in 73 per cent of all finalised cases which were validly lodged. On average, parties spent 76 minutes across two ADR processes per case. The majority of ADR processes conducted by the AAT were conferences with conciliations the next most common type. See Table A4.4 in Appendix 4 for the numbers of ADR processes held. ADR continues to be a highly cost-effective mechanism for achieving review outcomes.

Appeals

The number of appeals and other applications lodged in the courts in relation to decisions made in these divisions grew from 112 in 2016–17 to 146 in 2017–18, primarily due to an increase in the number of applications for judicial review of decisions about visas made on character-related grounds under the Migration Act. Of the appeals that were finalised during this reporting year, the AAT’s decision was set aside in 39 per cent of cases, which is seven percentage points higher than in 2016–17. The proportion of appeals allowed was higher in a number of areas, including taxation and commercial, and veterans’ decisions.

Engagement

The Tribunal engaged with stakeholders across these jurisdictions in various ways during 2017–18. Registries arranged local liaison meetings with people and organisations who appear regularly before the Tribunal, including departments and agencies whose decisions we review, disability advocacy organisations, community legal centres, legal aid commissions and private legal practitioners. The meetings were a forum to share information about legislative or procedural changes, to discuss practice and procedure issues and to obtain feedback from users on our services and any proposals for changes. Liaison meetings were held with representatives of decision-making agencies, including the Australian Taxation Office, Comcare and the Department of Veterans’ Affairs, in relation to strategic and operational issues and to explore opportunities to improve review processes such as a pilot for a fast track process for selected workers’ compensation applications in the Canberra Registry. We also engaged with stakeholders in the Centrelink jurisdiction as part of developing an online Disability Support Pension Interview Tool for community workers.

Migration and Refugee Division

The Migration and Refugee Division reviews decisions made under the Migration Act relating to a wide range of visas that permit non-citizens to travel to, enter and remain in Australia on a permanent or temporary basis. These include decisions to refuse to grant visas and to cancel visas as well as related decisions to refuse to approve business sponsors, nominated positions and business activities. Reviewable decisions are generally made by delegates of the Minister administering the Migration Act.

Caseload

The Division received 37,933 applications in 2017–18, the highest number of applications lodged since the establishment of the Division or its predecessor tribunals. This is a 43 per cent increase on the number of applications that were lodged in 2016–17 and double the number of lodgements in 2015–16. Due to the high volume of applications received in this and the previous reporting year and the overall reduction in available member resources, the Division has not been able to keep pace with the growth in lodgements. The Division finalised 17,960 cases in the reporting year leaving an active caseload at 30 June 2018 of 44,436 matters, 82 per cent more than at the end of the previous reporting year.

The Division received 37,933 applications in 2017–18, the highest number of applications lodged since the establishment of the Division or its predecessor tribunals.

Key statistics in relation to workload and timeliness for the major areas of work within the Migration and Refugee Division for the last three financial years are set out in Table 3.5.

Table 3.5 Caseload overview, 2015–16 to 2017–18 – Migration and Refugee Division
AREA OF WORK	2015–16	2016–17	2017–18
Migration
Lodged	14,307	18,518	26,445
Finalised	12,511	13,755	12,539
On hand at year end	11,330	16,092	29,991
% finalised within 12 months	67%	70%	53%
Median time to finalise (weeks)	36	39	50
Refugee
Lodged	4,622	8,086	11,488
Finalised	3,600	5,153	5,421
On hand at year end	5,434	8,370	14,445
% finalised within 12 months	36%	54%	66%
Median time to finalise (weeks)	64	47	31
TOTAL
Lodged	18,929	26,604	37,933
Finalised	16,111	18,908	17,960
On hand at year end	16,764	24,462	44,436
% finalised within 12 months	60%	66%	57%
Median time to finalise (weeks)	42	40	46

Migration cases

Seventy per cent of lodgements and finalisations in the Division in 2017–18 related to decisions about permanent and temporary entry migration visas. These applications comprised 67 per cent of the Division’s active caseload at 30 June 2018.

Chart 3.6 shows the number of applications lodged and finalised in the reporting period by key visa categories.

Chart 3.6 Migration lodgements and finalisations by key visa categories, 2017–18

Applications for review of decisions about migration visas increased 43 per cent between 2016–17 and 2017–18. The most common type of applications received in 2017–18 related to business or work visas, including business skills visas, skilled visas and temporary work visas, as well as decisions about nomination and sponsorship. Lodgements in this area of work increased by 84 per cent compared to the previous reporting year and comprised 29 per cent of all applications received in the Division.

Lodgements relating to decisions to refuse or cancel student visas were the next most common type of case, representing 23 per cent of all lodgements and a 54 per cent increase on lodgements of this type received in the previous reporting period. Applications about family and partner visas, 11 per cent of the Division’s applications in 2017–18, decreased nine cent from 2016–17. Applications about visitor visas for tourists and people wanting to visit relatives and about bridging visas increased during the reporting period but remain a smaller part of the overall workload.

The number of finalised migration cases fell by nine per cent in 2017–18 with the average time to finalisation increasing by 11 weeks to 50 weeks. Similar to the spread of lodgements, applications relating to business or work visas comprised 22 per cent of all Division finalisations, followed by student refusal or student cancellation reviews (21 per cent), partner and family visa cases (17 per cent), visitor visas (7 per cent) and bridging visas (2 per cent).

In 2017–18, the Division changed the decision or otherwise remitted the matter to the Department of Home Affairs in 29 per cent of finalised migration cases compared with 38 per cent in 2016–17. The original decision was affirmed in 35 per cent of cases. The remainder of the applications were either withdrawn (20 per cent), did not meet application requirements (10 per cent) or were dismissed by the Tribunal on the basis that the applicant failed to appear at a hearing (5 per cent).

As in other divisions, decisions are commonly changed on review because of the availability of new or additional evidence that was not before the original decision-maker. A change in the applicant’s circumstances since the time of the original decision can also be relevant under the law in many cases.

Refugee cases

Applications about protection (refugee) visas comprised 30 per cent of both lodgements and finalisations in the Division in 2017–18 and represented 33 per cent of all cases on hand at 30 June 2018. The majority of the applications were for review of decisions refusing to grant protection visas which generally require the Division to consider whether or not the applicant is a person to whom Australia has protection obligations: whether they are a refugee or, in the alternative, entitled to complementary protection.

Chart 3.7 shows the number of lodgements and finalisations in 2017–18 by the country of reference for the applicant.

Chart 3.7 Refugee lodgements and finalisations by country of reference, 2017–18

The number of applications about refugee decisions has increased sharply over the past two financial years with lodgements increasing by 42 per cent in 2017–18 compared with 2016–17. This can be attributed in large part to sustained high levels of lodgements relating to Malaysia which comprised 51 per cent of all lodgements concerning protection visas. The number of applications relating to the People’s Republic of China increased by 135 per cent in the reporting year and comprised 25 per cent of all refugee lodgements. Applications relating to these two countries represented 65 per cent of the active refugee caseload at 30 June 2018.

The number of applications lodged by unauthorised maritime arrivals increased from 146 in 2016–17 to 249 in 2017–18. The Division does not generally review decisions made in relation to unauthorised maritime arrivals who entered Australia after 13 August 2012. Those decisions are reviewed by the Immigration Assessment Authority which is covered in Chapter 5 of this report.

The Division finalised five per cent more refugee cases in 2017–18 than in 2016–17. Five per cent of all finalised cases were remitted to the Department of Home Affairs compared with 11 per cent in 2016–17. The decision under review was affirmed in 43 per cent of cases and the remaining applications either did not meet application requirements (32 per cent), were dismissed by the Tribunal on the basis that the applicant failed to appear at a hearing (12 per cent) or were withdrawn (8 per cent). The decrease in the percentage of refugee applications in which the decision was changed can be attributed to the high volume of decisions made in cases relating to Malaysian nationals, the majority of whom were found not to engage Australia’s protection obligations. The increase in the number and proportion of refugee cases in which the Division did not have jurisdiction to review the decision related to a high number of applications from Malaysian nationals seeking review of a primary decision that the Division had already reviewed. Under the Migration Act, the Division cannot review a decision that it has already considered. These cases, which are generally finalised in a short period of time, contributed to the average time for finalising refugee cases in 2017–18 decreasing from 47 to 31 weeks.

Cancellation cases

Following a significant increase in 2016–17, applications to the Division seeking review of decisions to cancel permanent or temporary migration or protection visas as well as to cancel or limit sponsor approvals decreased by 19 per cent in the reporting year. The number of cancellation cases on hand increased, however, by 52 per cent. The Division has been unable to allocate cancellation cases to deal with this caseload effectively, due to the reduction of members undertaking reviews. The Division also deferred considering a cohort of cancellation reviews due to a legal issue concerning the delegation of the primary decision-maker to cancel the visa. This issue is being considered by the Federal Circuit Court of Australia and affected reviews will be progressed once the court’s determination is available.

An overview of the cancellation caseload which otherwise forms part of the migration and refugee caseloads detailed above is set out in Table 3.8. Student cancellation cases, of which a majority related to breach of conditions, accounted for almost half of all lodgements and finalisations and comprised 61 per cent of active cases as at 30 June 2018. Applications relating to decisions to cancel bridging or substantive visas on criminal grounds, including on the basis that a non-citizen has been charged with a criminal offence, remain a minor part of the Division’s caseload, comprising approximately one per cent of all applications finalised in the Division.

Table 3.8 Cancellation caseload overview, 2015–16 to 2017–18
AREA OF WORK	2015–16	2016–17	2017–18
Migration
Lodged	1,141	1,898	1,522
Finalised	1,070	1,190	882
On hand at year end	619	1,327	1,969
Refugee
Lodged	48	168	143
Finalised	29	110	53
On hand at year end	31	89	179
TOTAL
Lodged	1,189	2,066	1,665
Finalised	1,099	1,300	935
On hand at year end	650	1,416	2,148

Caseload strategy

The annual caseload strategy for the Division set out the planned allocation of resources to achieve strategic goals, including identifying opportunities for innovation to facilitate the making of better, timely and consistent decisions and to reduce the age of the caseload, particularly for refugee cases, business cases and student refusals, which represented significant proportions of the active caseload. The Division’s projection for the number of applications that would be finalised in 2017–18 based on the available member resources was 16,000 reviews. As a result of various case management initiatives undertaken during the period and the unusually high number of applications by Malaysian nationals seeking review of decisions the Division had already reviewed, the 17,960 cases finalised in the reporting year was 12 per cent above the projection.

In 2017–18 the Division continued to build on caseload projects that commenced in previous reporting periods in the refugee and partner caseloads and introduced new initiatives in the business and work categories and in the student refusal caseload. These successful initiatives were facilitated by the introduction of early case assessments registrars, caseload practice managers and case assessment teams which focused on pre-constitution processes such as triage, batching and case management to increase efficiencies in the decision making process.

Challenges for the Division this reporting year included the sustained high volume of lodgements, the loss of experienced members and the overall reduction in member resources in the Division in recent financial years. The delayed assignment of newly appointed members in the reporting year also impacted on the capacity of the Division to reduce the active caseload and meet timeliness measures across many case categories. Protracted delay in the review process not only creates additional uncertainty for applicants but generally makes claims more complicated.

The diversity and complexity of the Division’s caseload and the dynamic nature of migration legislation and related case law also poses challenges to efficient, yet robust decision-making. The Division has sought the appointment of additional sessional members to deal with the surge in the caseload and will continue to enhance pre-constitution processes in 2018–19. A key area of focus in the next financial year will be to improve administrative and case management support for members so that members in the Division have the same quality of file preparation and hearing support available to members in other divisions.

Appeals

There were 3,393 applications for judicial review of Migration and Refugee Division decisions lodged with the Federal Circuit Court during the reporting year which represents 23 per cent of all decisions made in 2017–18 that could have been appealed. The number of appeals was lower than in the previous financial year but, as fewer decisions were made, the appeal rate was similar to 2016–17.

The courts set aside a decision of the Division or of the former MRT or RRT in 22 per cent of judicial review applications finalised in 2017–18, an increase on the set-aside rate of 20 per cent in 2016–17. Of these successful appeals, 84 per cent were remitted by consent: the Minister agreed that the Tribunal had made a legal error and the decision should be set aside. In 34 per cent of the remitted cases, the legal error identified was a denial of procedural fairness arising out of non-disclosure certificates issued by delegates of the Minister of the kind found in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183 which was discussed in last year’s annual report. When these cases are excluded from the total number of remitted cases, the proportion of successful appeals was 16 per cent, which is less than four per cent of the total decisions made in the previous reporting period that could have been appealed and consistent with appeal success rates of preceding years.

Engagement

The Division engaged with external stakeholders across a number of forums in 2017–18. Throughout the year, regular meetings were held with representatives of the Department of Home Affairs to discuss strategic and high-level operational issues that impact the conduct of reviews and the Division’s workload. Representatives of the Department of Foreign Affairs and Trade, which provides country information reports for use in refugee decision-making, met with the Division to discuss country information issues and also presented briefing sessions to members.

Community liaison meetings that were reinstated in 2016–17 were continued in the reporting period, with the second series of these events held in each state throughout November 2017. The meetings provided an opportunity for the Division to exchange information on operational, procedural and caseload issues with key external stakeholders, including peak migration agent bodies and advocates. Further information on these meetings is available at Appendix 6.

The AAT developed a new suite of fact sheets in 2017–18 in relation to various types of decisions reviewed by the Division and sought feedback from peak migration agent and legal bodies in relation to their content. The fact sheets provide information on the issues considered in particular review types to assist applicants to present their case. Applicants are now provided with any relevant fact sheet when we acknowledge receipt of their application. The fact sheets are also available on our website. Further fact sheets and consultation with external stakeholders is planned.

Social Services and Child Support Division

The Social Services and Child Support Division reviews a wide range of decisions made by officers of the Department of Human Services, including decisions about:

family assistance, farm household support, social security and student assistance entitlements (Centrelink decisions)
child support
paid parental leave.

Caseload

The Division received a total of 13,435 applications in 2017–18, a 23 per cent decrease in lodgements compared with the previous year. Consistent with the decline in lodgements, the number of applications finalised fell to 15,075, eight per cent fewer than in 2016–17. There were 2,698 cases on hand at 30 June 2018, a decrease of 38 per cent compared with the number of cases on hand at 30 June 2017.

Key statistics in relation to workload and timeliness for the major areas of work within the Division for the last three financial years are set out in Table 3.9.

Table 3.9 Caseload overview, 2015–16 to 2017–18 – Social Services and Child Support Division
AREA OF WORK	2015–16	2016–17	2017–18
Centrelink (1st review)
Lodged	13,201	14,949	10,913
Finalised	13,215	14,098	12,550
On hand at year end	2,694	3,547	1,912
% finalised within 12 months	>99%	>99%	>99%
Median time to finalise (weeks)	11	13	10
Child support
Lodged	2,136	2,241	2,328
Finalised	2,098	2,063	2,299
On hand at year end	533	725	769
% finalised within 12 months	>99%	>99%	99%
Median time to finalise (weeks)	12	13	15
Paid parental leave
Lodged	206	260	194
Finalised	221	246	226
On hand at year end	34	48	17
% finalised within 12 months	100%	>99%	100%
Median time to finalise (weeks)	10	10	6
TOTAL
Lodged	15,543	17,450	13,435
Finalised	15,534	16,407	15,075
On hand at year end	3,261	4,320	2,698
% finalised within 12 months	>99%	>99%	>99%
Median time to finalise (weeks)	11	13	11

Centrelink

Applications relating to Centrelink decisions constituted 81 per cent of all lodgements in the Division in the reporting year and were 27 per cent lower than in 2016–17. Chart 3.10 shows the number of lodgements and finalisations in 2017–18 by key payment types.

Chart 3.10 Centrelink lodgements and finalisations by key payment types, 2017–18

Lodgements relating to decisions about disability support pension continued to be the most common type of application, comprising 33 per cent of all Centrelink lodgements. However, lodgements about decisions of this kind decreased by 42 per cent in 2017–18. The number of applications received relating to each of the other main payment types also fell during the reporting period: family tax benefit by 11 per cent, newstart allowance by 20 per cent, age pension by 22 per cent and youth allowance by 10 per cent.

The types of decisions that were most commonly the subject of applications made in the reporting period were those about a debt (40 per cent) and those rejecting a claim (38 per cent), followed by decisions to cancel a payment (7 per cent), about the rate of payment (7 per cent) and about the start date of a payment (5 per cent). While decisions about debt formed the largest proportion of all Centrelink applications lodged in 2017–18, the actual number of applications lodged seeking review of one or more Centrelink decisions about a debt fell 18 per cent from 5,319 in 2016–17 to 4,366 in 2017–18.

Finalised applications about Centrelink decisions decreased by 11 per cent in 2017–18, consistent with the decrease in lodgements. The median finalisation time for Centrelink decisions improved in the reporting period to 10 weeks compared with 13 weeks in 2016–17.

The Division finalised applications relating to a total of 14,168 Centrelink decisions, 23 per cent of which were set aside or varied and 49 per cent affirmed. In relation to the balance, the application to review the decision was either finalised on the basis that the decision was not subject to review by the AAT (15 per cent), withdrawn by the applicant (9 per cent) or dismissed by the Tribunal (3 per cent). The outcomes are broadly similar to the previous reporting period.

Child support

Lodgements relating to child support decisions represented 17 per cent of all applications received in 2017–18 and increased by four per cent from the previous year. Chart 3.11 illustrates the most common types of decisions under review. Applications relating to requests to change an assessment of how much child support is payable and determinations about the percentage of care for a child comprised 69 per cent of all child support lodgements.

Chart 3.11 Child support lodgements and finalisations by key decision types, 2017–18

In the child support jurisdiction, the number of applications finalised increased by 11 per cent compared with the previous reporting period, reflecting increases in lodgements. The Tribunal affirmed the decision under review in 25 per cent of cases and set aside or varied the decision following a hearing in 33 per cent of cases. The decision was set aside or varied in accordance with terms of a consent agreement reached by the parties in two per cent of cases with a further nine per cent of applications dismissed by consent. The remaining applications were either withdrawn by the applicant (11 per cent), dismissed by the Tribunal (7 per cent) or did not proceed to a substantive review as the decision was not reviewable or the application was not lodged within the time limit and no extension of time was granted (13 per cent).

Paid parental leave

Applications relating to paid parental leave continued to form a small part of the Division’s overall caseload with 194 lodgements in 2017–18, 25 per cent fewer than in 2016–17. The Division finalised applications for review relating to a total of 232 decisions, 51 per cent of which were affirmed and 10 per cent set aside or varied. In relation to the balance, the application to review the decision was either withdrawn by the applicant, dismissed by the Tribunal or finalised on the basis that the decision was not subject to review by the AAT.

Caseload strategy

In 2017–18, the Division further developed and refined a number of caseload management initiatives aimed at assisting the parties to better understand the issues in the review and facilitating earlier resolution where appropriate. We have focused on early case assessment and outreach in select types of cases in both the Centrelink and child support jurisdictions. They are generally undertaken by case assessment registrars and caseload practice managers with significant expertise in relation to the Division’s jurisdiction.

In relation to Centrelink cases, more straightforward matters are selected for outreach or for a fast track hearing. Approximately 10 per cent of all Centrelink applications were finalised either by applicants deciding not to proceed to hearing after outreach contact or, more commonly, following a fast track hearing. For cases finalised by way of a fast track hearing, the Tribunal’s decision was generally given orally on the day. The fast-track approach significantly reduced the average time to finalise these applications.

In child support change of assessment cases, early case assessment and outreach is employed in most cases to assist parties to seek to resolve their application by agreement without the need for a Tribunal directions hearing or hearing and the imposition of a Tribunal decision. In many other child support matters, an early directions hearing is conducted to clarify the issues in dispute and explain the scope of the Tribunal’s powers. A total of 248 applications were finalised by the Tribunal making a decision in accordance with an agreement reached by the parties, representing 11 per cent of all finalised child support applications matters in the reporting year.

The Division continued to increase the number of applications in which the Tribunal delivered its decision and the reasons for the decision orally at the end of a hearing. This method has proven to be effective and provides applicants with a timely outcome and explanation. The decision and reasons were given orally in 14 per cent of Centrelink applications finalised in 2017–18, an increase of four percentage points from 2016–17.

Appeals

Certain categories of decisions made by the Division can be reviewed a second time by the AAT’s General Division. These include substantive decisions to affirm, vary or set aside a Centrelink decision and select child support and paid parental leave decisions. Other decisions can be appealed to the courts.

In 2017–18, 1,919 applications were lodged in the General Division for second review of Centrelink decisions, 72 for review of child support decisions and 12 for review of paid parental leave decisions. Of the second review applications lodged in respect of Centrelink decisions, 75 were lodged by the Secretary of the Department of Social Services and five by the Secretary of the Department of Education and Training. Seventy Secretary appeals were finalised in the period and the Division’s decision remained unchanged in 46 per cent of those applications: 25 applications were withdrawn, the decision was affirmed following a hearing in six applications and one decision was affirmed by consent. The Division’s decision was set aside or varied after hearing in 26 applications and set aside or varied by consent in 12 applications. Information relating to the outcomes of all applications for second review of Centrelink decisions can be found in Appendix 4. A small number of child support and paid parental leave decisions were set aside or varied in second review applications finalised in 2017–18.

In the reporting period, there were a total of 26 statutory appeals from child support decisions lodged in the Federal Circuit Court and the Federal Court, three more than in 2016–17. The number of appeals as a proportion of decisions that could be appealed remained low. The courts finalised a total of 25 appeals in 2017–18: two were allowed and 23 dismissed or discontinued.

Engagement

The Division engaged with the Department of Human Services in relation to a broad range of operational issues in 2017–18. We aim to maintain an effective relationship with the Department, ensuring there is regular communication and discussion about legislative changes, procedures, workload and other current or future matters that will impact on the Division. This enables practical issues arising in our caseload to be addressed at an early stage.

We also liaised with organisations that represent or provide support to applicants seeking review of decisions in the Division, including legal aid commissions and welfare rights centres.

External scrutiny

The AAT’s operations are subject to external scrutiny through various mechanisms. The principal form of scrutiny in relation to how we conduct reviews and our decisions is by way of review in the courts. Our operations are also subject to scrutiny through requests made under the Freedom of Information Act, complaints to the Commonwealth Ombudsman and other bodies, audits by the Australian National Audit Office and parliamentary scrutiny.

Appeals

There are three primary appeal pathways for review by the courts of the decisions we make.

A party may appeal, on a question of law, to the Federal Court under section 44 of the Administrative Appeals Tribunal Act from most types of final decisions made in divisions other than the Migration and Refugee Division. The Federal Court may transfer the appeal to the Federal Circuit Court unless the Tribunal was constituted by, or included, the President or a Deputy President.
A party to a first review of a child support decision dealt with by the Social Services and Child Support Division may appeal, on a question of law, to the Federal Circuit Court under section 44AAA of the Administrative Appeals Tribunal Act unless the Tribunal was constituted by, or included, the President or a Deputy President.
An applicant or the Minister administering the Migration Act may seek judicial review under Part 8 of the that Act of most AAT decisions relating to visas. Applications relating to decisions made in the Migration and Refugee Division must be lodged in the Federal Circuit Court. Applications relating to most decisions dealt with in the General Division must be lodged in the Federal Court.

A party may also seek judicial review of certain decisions made in the course of the review process and in respect of certain final decisions under the Administrative Decisions (Judicial Review) Act 1977, section 39B of the Judiciary Act 1903, Part 8 of the Migration Act or section 75(v) of the Constitution.

As shown in Table 3.12, 3,565 appeals were lodged in 2017–18, 95 per cent of which were applications for judicial review of decisions made by the Migration and Refugee Division or the former MRT or RRT. The proportion of migration and refugee decisions that were appealed continued to be considerably higher than for our other divisions.

There were 2,864 appeals relating to decisions of the AAT, MRT or RRT finally determined in the courts during the reporting year. Overall, the Tribunal’s decision was set aside in 23 per cent of those appeals. However, this amounted to only slightly more than 3 per cent of all decisions made in 2016–17 that could have been appealed to the courts.

Table 3.12 Court appeals lodged and finalised, 2015–16 to 2017–18 – By division^a

	COURT APPEALS LODGED		COURT APPEALS FINALISED^d
	Lodged^b	Proportion of total AAT decisions^c	Finalised	Proportion allowed against total appeals finalised	Proportion allowed against total decisions^e
FOI, General, NDIS, Security, Taxation and Commercial, and Veterans’ Appeals Divisions
2015–16^f	87	4%	87	28%	1.1%
2016–17^f	112	5%	98	32%	1.4%
2017–18	146	6%	104	39%	1.8%
Migration and Refugee Division
2015–16	3,269	23%	2,958	24%	3.7%
2016–17	3,644	22%	2,617	20%	3.6%
2017–18	3,393	23%	2,735	22%	3.6%
Social Services and Child Support Division^g
2015–16	33	2%	33	9%	0.2%
2016–17	23	1%	28	18%	0.3%
2017–18	26	1%	25	8%	0.1%
TOTAL
2015–16^f	3,389	19%	3,078	24%	3.3%
2016–17^f	3,779	18%	2,743	20%	3.0%
2017–18	3,565	19%	2,864	23%	3.1%

^a These figures include appeals lodged or finalised in the relevant reporting year in relation to decisions made by the AAT or decisions made by the MRT, RRT or SSAT prior to 1 July 2015.

^b These figures include some appeals lodged in relation to decisions made in a previous year.

^c These figures represent the number of appeals lodged as a proportion of all AAT decisions made in that reporting year that could have been appealed to the courts.

^d Where a decision of a judge of the Federal Circuit Court, a single judge of the Federal Court or the Full Court of the Federal Court has been appealed, only the ultimate result is counted for the purpose of these statistics.

^e These figures represent the number of successful appeals as a proportion of all decisions of the AAT (or of the MRT, RRT or SSAT for 2015–16) made in the previous financial year that could have been appealed to the courts.

^f The figures for the FOI, General, NDIS, Security, Taxation and Commercial, and Veterans’ Appeals Divisions and the totals for the 2015–16 and 2016–17 financial years have been revised as part of implementing a consistent approach across divisions to counting appeals. Previously, if an application to extend the time for lodging an appeal against a decision made in the FOI, General, NDIS, Security, Taxation and Commercial, or Veterans’ Appeals Division was lodged, the matter was counted for the purpose of this table only if that application was granted by the relevant court and the substantive appeal was lodged. These figures now include matters in all divisions subject to any type of initial application made to a court.

^g Only child support and employer-related paid parental leave decisions may be appealed to the courts under section 44 or 44AAA of the Administrative Appeals Tribunal Act. In general, other decisions made on first review in the Social Services and Child Support Division are subject to second review in the AAT.

More information on appeals lodged and determined during the reporting year by major areas of work within divisions is available in Table A4.5 in Appendix 4.

During the reporting year, a small number of judicial decisions had a significant impact on our procedures and decision-making.

BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96

Grey v Minister for Immigration and Border Protection [2018] FCCA 1564

The applicant applied to the AAT for a review of a decision to cancel his visa which required payment of a review application fee, or a reduced fee which was half the amount of the full application fee. The applicant submitted a request for a fee reduction. AAT staff told the applicant on multiple occasions that he needed to pay the full fee or at least the reduced fee before the prescribed period to apply for review ended or the AAT may find that it did not have jurisdiction to review the decision. He did not pay any fee before the end of the prescribed period and the AAT found that, as the fee (or at least half the fee) had not been paid, the application was not valid and it did not have jurisdiction.

The Federal Circuit Court found that the AAT will not have jurisdiction to review a matter unless an applicant pays at least half of the application fee within the prescribed period to apply for review. If the AAT rejects a fee reduction request then the applicant should still be given a reasonable timeframe to pay the balance of the fee even if the prescribed period has since lapsed.

Guder v Minister for Immigration and Border Protection [2017] FCCA 2527

Minister for Immigration and Border Protection v Guder [2018] FCA 626

These judgments concerned a provision of the Migration Regulations 1994 which requires an applicant for a temporary business entry Subclass 457 visa to undertake a specified English language test and achieve a certain score within a specified period: paragraph 457.223(4)(eb) of Schedule 2 to the Regulations. In this case, the period specified was three years from the date of the visa application. The MRT found the applicant’s English test results did not meet the required scores and told the applicant this during the hearing. The applicant asked the MRT what she could do and the MRT referred her to her representative who was not present. The MRT then affirmed the decision two years before the specified period had ended.

At first instance, the Federal Circuit Court held the applicant was not afforded a meaningful hearing opportunity and the MRT needed to ensure the applicant was aware that an issue arising was whether she should be afforded more time within the specified period to try and meet the English language requirements. The Federal Court upheld the Federal Circuit Court’s judgment. Following this judgment, in cases where this requirement is in issue, the AAT needs to consider putting the applicant on notice of the time period available for meeting the requirement and their ability to request an adjournment.

He v Minister for Immigration and Border Protection [2017] FCAFC 206

In this judgment, a Full Court of the Federal Court discussed how the AAT should approach the task of deciding whether a person is the ‘spouse’ of another person as defined in subsection 5F(2) of the Migration Act in relation to a partner visa. The decision-maker must consider all the circumstances of the relationship, including the prescribed matters set out in regulation 1.15A(3) of the Migration Regulations which include the financial and social aspects of the relationship, the nature of the household, and the nature of the persons’ commitment to each other.

The Court held that, in considering all of the circumstances of a relationship, the AAT is required to identify and make findings on the relevant circumstances of the relationship, including the prescribed matters and any other relevant circumstances, and that it should think of these matters as questions which must be answered, not merely thought about. In this case, the Court accepted that the Tribunal had made findings on the relevant matters and dismissed the appeal. Whether the parties are ‘spouses’ (or ‘de facto partners’, which has a similar definition) is often the main issue in partner visa cases before the AAT, and this judgment provides useful guidance on how the AAT should approach these cases.

Freedom of information

In 2017–18, the Office of the Australian Information Commissioner notified the AAT of four applications for review of decisions we made in relation to requests for access to documents under the Freedom of Information Act. Three applications were finalised during the reporting year. One application was finalised by a decision affirming the AAT’s decision and one was withdrawn. In relation to the third application, a decision was made not to undertake the review under section 54W(b) of the Act. No decisions were made that have had, or may have, a significant effect on our operations.

Information Publication Scheme

Agencies subject to the Freedom of Information Act are required to publish information to the public as part of the Information Publication Scheme. This requirement is in Part II of the Act and has replaced the former requirement to publish a section 8 statement in an annual report. Each agency must display on its website a plan showing what information it publishes in accordance with the IPS requirements. The AAT’s plan is on our website.

Complaints to external bodies

The Australian Human Rights Commission notified us of one complaint about the AAT in 2017–18 and three complaints were finalised during the reporting year. In two cases the complainant elected not to proceed with the complaint. The third complaint was declined as lacking substance.

The Commonwealth Ombudsman received 66 approaches concerning the AAT during the reporting year. The Ombudsman finalised 65 approaches within the reporting year and no investigations were conducted.

The Office of the Australian Information Commissioner received three privacy complaints relating to the AAT in 2017–18 and closed two.

Reports on the operations of the AAT

The AAT’s operations were not the subject of any report by the Auditor-General, any parliamentary committee or the Commonwealth Ombudsman in 2017–18.

The Joint Standing Committee on Migration commenced an inquiry during the reporting year into the review processes associated with visa cancellations on criminal grounds. The AAT made a submission to the inquiry about our role and procedures in relation to these decisions.

Service to users

The AAT strives to be accessible to our wide range of users and potential users, including people from different cultural and linguistic backgrounds and people with disability. We employ various measures to assist people to make an application and participate in the review process, particularly where a person is representing themselves. We have an internal Accessibility Advisory Group which provides advice on accessibility issues and acts as a point of coordination for activities aimed at improving accessibility.

Information about the AAT and assistance in relation to the review process

We offer information about our role and procedures in plain language in a variety of formats on our website. Our written materials include practice directions, guides, guidelines and fact sheets. We also have a series of videos available in English, in seven community languages and in an accessible version which cover key aspects of our processes, including applying for a review, conferences and hearings.

We make a range of resources available online to help people understand how we apply the law and what information is relevant when we review a decision. These include fact sheets for some commonly reviewed decisions and an interactive tool that community workers can use to assist people who are seeking review of a decision about disability support pension. The Guide to Refugee Law in Australia on our website provides guidance on legal issues relevant to the assessment of protection visas. AAT decisions are published on the Australasian Legal Information Institute website (www.austlii.edu.au).

AAT staff respond to enquiries from parties and representatives about the review process and proactively contact self-represented parties in some types of cases to explain our processes as well as identify whether a party will require an interpreter or assistance because of a disability. We make information available to parties about legal aid services, community legal centres, disability advocacy services and other people or organisations that may be able to provide advice and assistance in relation to the review process or how to find such assistance.

In New South Wales, Queensland, South Australia, Victoria and Western Australia, the AAT has worked with legal aid commissions and community legal centres to establish legal advice schemes. A solicitor attends the AAT and provides advice and minor assistance to self-represented parties in certain types of cases, particularly reviews of Centrelink decisions. Further assistance, such as representation, may be provided if a person meets eligibility requirements.

People from culturally and linguistically diverse backgrounds

We take steps to ensure our users from culturally and linguistically diverse backgrounds are able to communicate with us effectively and also seek to address other cultural diversity issues in delivering our services.

Interpreting services

If a party or witness requires an interpreter for a case event at the AAT, such as a conference or a hearing, we engage one and meet the cost. We generally use interpreters certified by the National Accreditation Authority for Translators and Interpreters at the ‘Certified Interpreter’ level (previously ‘Professional Interpreter’ level). If an interpreter is not available in a language at that level, we may use an interpreter certified as a ‘Certified Provisional Interpreter’ (previously ‘Paraprofessional Interpreter’) or, if NAATI does not offer certification testing in the language, an interpreter recognised by NAATI.

We also use the Translating and Interpreting Service as needed for telephone calls and other interactions with users.

We have developed information for interpreters in relation to our procedures and terminology, as well as guidelines relating to the role of the interpreter. Our internal Interpreter Advisory Group provides advice on interpreter issues and acts as a point of coordination for activities aimed at improving our interpreter arrangements.

Indigenous Australians

The AAT is committed to improving access for Indigenous Australians, including by educating members and staff on how to work effectively and respectfully with Indigenous users and their communities. Members and staff have access to an eLearning module designed to improve Indigenous cultural awareness, as well as our internal guide on working with Aboriginal and Torres Strait Islander people.

People with disability

We aim to make access easier for people with disability by:

ensuring our website meets the World Wide Web Consortium’s Web Content Accessibility Guidelines version 2.0 (WCAG 2.0) web standard to Level AA
making ReadSpeaker, a text-to-speech software service, available on our website
providing hearing augmentation and hearing loop systems in Tribunal premises
facilitating telephone contact for people with a hearing or speech impairment
making all of our premises wheelchair accessible and ensuring other premises used by the AAT are accessible, and
providing facilities for participation in conferences and hearings by telephone or video-link.

Service Charter

Our Service Charter sets out the standards of service that people can expect when they deal with us. Information on the extent of our compliance with those standards during 2017–18 (where information is available) is in Table 3.13.

The Service Charter includes information about how users can give us feedback, including how to make a complaint about the AAT. It also sets out our standards for responding to complaints. More information relating to the handling of complaints made to us during the reporting year is set out below.

Table 3.13 Performance against service standards, 2017–18
COMMITMENT	RESULT FOR 2017–18
We will treat you with respect and courtesy
We will be polite, respectful and courteous and use language that is clear and understandable.	In the 2018 user feedback survey, average positive ratings (the average of strongly agree and agree ratings) for whether members, registrars and staff were courteous and respectful were 80 per cent for parties and 87 per cent for representatives. Average positive ratings for whether members, registrars and staff explained things clearly were 73 per cent for parties and 85 per cent for representatives. Of the 211 complaints finalised in 2017–18, two involved adverse findings in relation to issues of this kind.
We will make ourselves accessible
Staff will answer telephone queries from 8:30am to 5:00pm on working days. You can contact us on 1800 228 333 from anywhere in Australia.	Staff were available to answer telephone queries from 8:30am to 5:00pm on each working day throughout the year. Our national 1800 telephone number was available throughout the year.
All correspondence will include our contact details.	All AAT correspondence includes relevant contact details for the Tribunal.
Wheelchair access and portable hearing loop systems are available at each registry.	All AAT premises were wheelchair accessible. Hearing augmentation and hearing loop systems were available at each of our registries.
Hearings will be held in capital cities and in regional centres (where possible).	We held hearings in all capital cities and six regional locations.
We conduct many hearings by phone or videoconference.	We conducted the following number of case events by telephone or video-link: conferences – 7,272 other alternative dispute resolution processes – 55 directions hearings – 2,678 interlocutory hearings – 620 hearings – 9,165 (1,180 in the Migration and Refugee Division, 7,923 in the Social Services and Child Support Division and 62 in other divisions).
If you need an interpreter we will provide one free of charge.	We arranged for an interpreter to participate in any alternative dispute resolution process, directions hearing or hearing where needed. Interpreters were provided free of charge.
We have information about our procedures available from our offices and on our website.	Our website contains information about our procedures in written and audiovisual formats. AAT staff assist applicants to access this information, including providing the information in printed form. Staff also provide verbal information about Tribunal processes. In the 2018 user feedback survey, average positive ratings for the quality of our information products, including the website, were 71 per cent for parties and 81 per cent for representatives.
We will deal with you fairly
You or your representative will have a reasonable opportunity to present your case.	We provide parties with an opportunity to present their case in various ways depending on the type of decision we are reviewing. Parties may provide information and submissions at any time during the review as well as in response to specific requests from the Tribunal. If an application proceeds to a formal determination, we generally hold a hearing at which parties may give evidence and make submissions before the Tribunal makes a decision in a case. In the 2018 user feedback survey, 67 per cent of parties agreed that registrars gave them a chance to explain their case at a conference. In relation to hearings, 75 per cent of parties and 80 per cent of representatives agreed that the member gave the parties a chance to present their case.
We will give you the reasons for making the decision in your case. These may be given orally or in writing.	Reasons for the Tribunal’s decision in a review were given to parties either orally at the hearing or in writing.
We will operate in an efficient manner
We will acknowledge receipt of applications.	The average time for acknowledging receipt of applications during the reporting year was 1 day.
We will respond to enquiries within a reasonable time.	Of the 211 complaints finalised in 2017–18, none involved adverse findings in relation to issues of this kind.

Complaints to the AAT

Complaints may be made to us orally or in writing. When issues or concerns are raised by people directly with members and staff, we encourage them to address the matters at the time of the interaction where possible. In circumstances where issues cannot be readily resolved, the person will be advised that they may make a written complaint, including by way of our online feedback form.

We aim to provide a final response to a written complaint within 20 working days. If more time is required because of the complexity of the complaint or the need to consult with other people before providing a response, we advise the complainant of progress in handling the complaint.

We treat all complaints seriously and conduct investigations in an impartial manner as quickly as possible having regard to the principles of procedural fairness. Possible responses to complaints include the provision of information or an explanation, an apology, a change to practice and procedure, or consideration of additional training and development for AAT personnel.

During 2017–18, the AAT received 223 complaints, an increase of 15 per cent compared with the previous reporting year. Table 3.14 shows the number of complaints made to the AAT over the last three years and the number of complaints received for every 1,000 applications we finalised. The rate of complaints was somewhat higher again in 2017–18.

Table 3.14 Complaints made to the AAT, 2015–16 to 2017–18
	2015–16	2016–17	2017–18
Complaints made	138	194	223
Applications finalised	38,146	42,224	40,013
Complaints per 1,000 applications finalised	3.6	4.6	5.6

Table 3.15 shows the subject matter of the complaints received in the reporting year. The increase in complaints in 2017–18 can be attributed primarily to more complaints about the decisions made by the Tribunal in reviews, the conduct of members and privacy.

Table 3.15 Issues raised in complaints to the AAT, 2017–18
ISSUE	NUMBER OF COMPLAINTS
Tribunal decisions	81
Conduct of members	67
Procedural issues	26
Delay/timeliness	18
Privacy	9
Conduct of staff	8
Conduct of alternative dispute resolution processes	7
Fee refund	2
Publication of Tribunal decisions	2
Other	3
TOTAL	223

We provided a response to 211 complaints in 2017–18, responding to 193 of those complaints within 20 working days. The average number of days from complaint to final response was seven working days.

We formed the view that we could have handled matters more appropriately in 19 complaints. They raised issues concerning administrative error, how members and staff communicated with users, privacy, procedural issues and timeliness. We offered an apology in each case and raised the matters with the relevant areas and personnel.

Communications and engagement

The AAT is committed to engaging with the broad range of external stakeholders who use our services or have an interest in our work. Engagement activities allow us to learn about developments that may affect us, obtain feedback on and improve our services, develop cooperative relationships that facilitate the delivery of our services, and promote understanding of our role and operations which help to build public trust and confidence in our decision-making.

Engagement

The President, Registrar and other senior representatives of the AAT met with a range of people and organisations in 2017–18 to discuss issues relating to the operations of the AAT, including the Secretaries of the Attorney-General’s Department and the Department of Home Affairs. Regular liaison meetings continued with the Law Council of Australia and representatives of the United Nations High Commissioner for Refugees. Senior staff worked closely with the Attorney-General’s Department during the reporting year on matters such as our membership, jurisdiction, legislation and budget.

The AAT also undertook more targeted liaison with stakeholders in relation to the operation of the review process in particular areas of the AAT’s caseload as well as with users at the local registry level. Further details of this jurisdictional and local engagement have been outlined earlier in this Chapter.

Feedback from parties and representatives

User feedback survey

The AAT undertakes surveys with users of our services to assess the extent to which we are meeting our statutory objective and to identify areas in which we may be able to improve our services. The most recent survey was conducted in May 2018.

Individuals and organisations who were parties to an application finalised by the AAT between 1 November 2017 and 28 February 2018 were invited to complete the survey. Representatives of parties involved in one or more cases finalised in the same period were also invited to complete the survey. Invitations were sent by email and SMS and the survey was conducted online. Responses were received from 1,198 parties and 572 representatives involved in applications across the AAT’s divisions.

The results for the 2018 survey were broadly consistent with those from the last survey conducted in 2016. Overall, the AAT’s services were rated positively both by parties and representatives with representatives generally providing more strongly positive ratings. Responses from parties who did not receive a favourable outcome, about half of those who responded, were generally lower, and sometimes significantly lower, than those who received a favourable outcome leading to these lower average positive ratings.

When asked about their experience of applying for a review, 75 per cent of parties and 94 per cent of representatives agreed the process was easy, an improvement on the 2016 results. In relation to the information products the AAT makes available, users were asked what they thought about our website, letters, fact sheets, practice directions, guides and videos, including how easy they were to understand. Average positive ratings were 71 per cent for parties and 81 per cent for representatives.

Questions we asked about interactions with AAT staff, including the ability of staff to explain things clearly as well as their knowledge and manner, elicited average favourable responses of 75 per cent for parties and 84 per cent for representatives, a similar outcome to the 2016 survey. Conference and hearing processes, including their level of formality and the conduct of members and registrars, were also rated positively overall by parties (69 per cent and 78 per cent respectively for conferences and hearings) and representatives (86 per cent and 81 per cent respectively).

In relation to perceptions of the review process overall, 61 per cent of parties and 77 per cent of representatives agreed the process was conducted to a high standard. With respect to fairness and independence, 79 per cent of representatives agreed the review process was fair with 82 per cent rating positively the independence of the Tribunal from the decision-maker. Consistent with the 2016 survey, the ratings given by parties in relation to these matters were lower (53 per cent and 63 per cent respectively) with responses correlating strongly to the outcome of their review. Two-thirds of parties agreed, however, that they were able to present their case to the AAT and that the AAT listened to them and they felt respected. In relation to timeliness, 59 per cent of parties and 54 per cent of representatives considered the review process was completed in a reasonable time with some variation between divisions. These results, which are lower than the 2016 survey, reflect the challenges the AAT faces in finalising applications in a timely manner in some divisions.

The AAT is examining the findings from the survey, as well as the comments and suggestions made by the participants, to identify areas for improvement in our services.

Other feedback mechanisms

We gather feedback from our users through a number of other mechanisms to understand their experience at the AAT. We use this information to identify and implement ways to improve our services.

Parties and representatives can apply to the AAT using our online lodgement systems on our website. We invite users to respond to a brief survey to gather feedback on their experience of using our online services. Users can also opt in to provide further input to the design of new services.

During the reporting year, we also commenced a user experience project to better understand the needs of people engaging with the AAT and identify opportunities for improvement. The project will include inviting users to participate in an online forum to obtain targeted feedback about their experience with the AAT.

Publication of decisions

In carrying out our functions, the AAT must pursue the objective of promoting public trust and confidence in our decision-making. Publication of written statements of reasons for AAT decisions contributes to the achievement of this objective by informing parties, representatives and the public about our role and procedures, how we interpret and apply the law, and why we have made the decision in individual cases.

During the reporting year, we developed and published a revised policy relating to the publication of AAT decisions. It replaced publication practices that had been in place in the former AAT, MRT, RRT and SSAT and which largely continued after the tribunals were amalgamated. Under the revised policy, we generally publish:

all written decisions in the Freedom of Information, General, National Disability Insurance Scheme, Security, Taxation and Commercial, and Veterans’ Appeals Divisions
all written decisions in certain types of cases in the Migration and Refugee Division and a randomly selected proportion of decisions in the higher volume categories of cases, and
a randomly selected proportion of child support decisions in the Social Services and Child Support Division.

The application of the policy has resulted in an increase in the number and range of AAT decisions published and has enhanced the transparency of our processes for publishing decisions. We have published 4,918 decisions made in 2017–18, comprising 3,554 Migration and Refugee Division decisions, 203 child support decisions made in the Social Services and Child Support Division and 1,161 decisions made in our other divisions. We intend to further increase the number of decisions published during 2018–19.

We review the policy annually, including the targets specified for specific categories of cases. Our Publication of Decisions Policy is available on our website.

The Review – monthly enewsletter

In February 2018 we launched a monthly enewsletter, The Review, to promote the availability of information about our decision-making and provide topical information about the AAT. Each issue includes stories about the AAT and short plain English summaries of a range of recent decisions. The Review has been well received by the AAT’s wide range of stakeholders.