Part 1 – Principal Member’s Report

I am pleased to report that in 2008–09 the Tribunals continued to provide visa applicants, former visa holders and sponsors with fair, just and independent reviews of migration and refugee decisions made by officers of the Department of Immigration and Citizenship.

The Tribunals decided 8,229 cases, setting aside the decision under review and making a decision favourable to the applicant in more than 3,200 or 39% of the cases decided.

Increasing the capacity to decide cases was an important focus over the year, and it was pleasing that the number of cases decided was 9% higher than the 7,537 decided in 2007–08. Investing additional resources in the initial analysis of cases resulted in a higher proportion of cases being allocated having regard to Member expertise, and was one of the factors which resulted in improved Member productivity.

Improving the time it takes a review to be completed after allocation to a Member was another factor. A ‘best practice’ guide was issued in October 2008, giving practical guidance to Members on managing cases through a review.

Despite the increase in cases decided, a larger increase in lodgements resulted in the number of cases on hand increasing to 6,919 by the end of the year – an increase of 36% over the number on hand at the end of 2007–08. The Tribunals received 9,960 new cases over the year, an increase of 16% over the 8,609 new cases received in 2007–08.

Looking forward, an effective increase in the membership during and since the end of the year will provide increased capacity to deal with cases. At the time of this Report, the Tribunals have 95 Members in total, comprising myself, 5 Senior Members and 89 Members. While this is only a modest increase in the overall number of Members compared to the membership in 2008–09, the number of Members appointed on a full-time basis has increased from 6 to 24.

There were two Member appointment rounds in 2008–09. The terms of all Senior Members expired on 31 December 2008, and the terms of 39 Members expired on 30 June 2009. In both cases, the positions were advertised nationally and an assessment panel established consistently with Government policy for merit-based selection of statutory office holders.

In the first round, 5 Senior Members were appointed by the Governor-General with effect from 1 January 2009, Ms Linda Kirk, Ms Amanda MacDonald, Mr Peter Murphy, Dr Irene O’Connell and Mr Giles Short. Mr Short was reappointed as a Senior Member. Ms MacDonald and Dr O’Connell were existing Members and both had previously acted as Senior Members. Ms Kirk was previously a Senator for South Australia and served on various parliamentary committees including the Joint Standing Committee on Migration. Mr Murphy was the Director of Internal Review for the Victorian WorkCover Authority and a previous Member of the Tribunals and of the Social Security Appeals Tribunal. Senior Members provide leadership, guidance and advice to a group of Members, and consider applications involving more complex legal and factual issues.

In the second appointment round, the Governor-General reappointed 31 Members and appointed 12 new Members with effect from 1 July 2009. Five of the new Members were appointed as full-time Members: Dr Jennifer Beard, Mr Tony Caravella, Mr Ismail Hasan, Mr Brook Hely and Ms Margret Holmes. Seven of the new Members were appointed as part-time Members: Mr Glen Cranwell, Ms Suhad Kamand, Mr Bruce MacCarthy, Ms Mara Moustafine, Ms Pamela Summers, Ms Belinda Wells and Ms Carolyn Wilson. The qualifications and experience of the new members enhance the breadth and depth of expertise which exists across the membership.

Six of the Members reappointed were part-time Members who have now been appointed as full-time Members: Ms Dione Dimitriadis, Mr Dominic Lennon, Ms Kira Raif, Mr James Silva, Mr Don Smyth and Ms Linda Symons. Mrs Mary Urquhart resigned as Deputy Principal Member of the RRT in order to take up appointment as a full-time Member to both Tribunals. I particularly thank Mrs Urquhart for the outstanding pastoral role she performed as the Deputy Principal Member of the RRT, and for the substantial contribution she made to Member professional development.

After the end of the year, the Governor-General appointed 8 part-time Members as full-time Members for the remainder of their terms. The appointments of these Members, and the appointments of a further 38 Members, will expire on 30 June 2010. These positions, and the vacant position of Deputy Principal Member, will be advertised during the course of 2009–10.

The need for the Tribunals to deal with an increased caseload in 2009–10 is also addressed in a Principal Member Direction on caseload and constitution arrangements which I issued on 31 July 2009. This sets out priorities, time standards and allocation arrangements which should support the completion of more than 10,000 reviews over the course of the year.

Despite the pressures of an increased caseload, it is important that the Tribunals continue to provide fair and high quality reviews – fair to individuals, and capable of improving the quality and consistency of migration and refugee decisions at the primary level.

During the year we developed or revised various Tribunal guidance documents. We developed, consulted on and published the Guidance on Vulnerable Persons, revised the Guidance on the Assessment of Credibility and issued Guidelines on Expert Opinion Evidence and on Referrals for Ministerial intervention. These documents, and all Principal Member Directions, are available on the Tribunal website.

The 90-day period for RRT reviews is an area that I consider needs to be reconsidered in any review of the merits review architecture of the Migration Act 1958. The 90-day period was introduced in 2005 when there were significant backlogs of protection visa cases at the primary and review levels, and when there were large numbers of protection visa applicants in immigration detention.

While most cases can be fairly decided within 90 days, the requirement for reports to be presented to Parliament every 4 months on all protection visa cases which exceed 90 days has the tendency to place greater emphasis on speed than on fairness to the applicant and distorts priorities between the two Tribunals. There is a case for this level of reporting to be maintained only for applicants who are in immigration detention. This would improve the capacity of those assisting applicants and our Members to continue to give high priority to detention cases. The timeliness of reviews involving persons not in immigration detention could be reported on satisfactorily in Annual Reports, in the same way as performance against time standards is reported across the MRT caseload.

I have suggested to Government that a comprehensive review be undertaken of the procedures and structure of the MRT and the RRT and of the judicial review framework in which the Tribunals operate. In my view, the way in which merits and judicial review operates in this jurisdiction needs to be brought more within the mainstream of Australian administrative law in order to deliver greater fairness to applicants and to reduce judicial review litigation.

A relatively simple reform which, in one step, would substantially enhance fairness for applicants and reduce the potential for litigation would be the introduction of a requirement for review applicants to be provided with a copy of all documents held by the Department relevant to the review. Currently, RRT applicants have to resort to a Freedom of Information Act request to get documents, while MRT applicants must use the facility in section 362A of the Migration Act to get documents. In my view, fairness demands that all relevant documents held by the Department be provided by the Department to review applicants as a matter of course after the lodgement of their application for review with the MRT or RRT.

I thank the Members and staff of the Tribunals for their professionalism and commitment over the year. I know that their efforts are underpinned by an appreciation that, for many applicants, the outcome of proceedings before us is a matter of life-changing importance.

Denis O’Brien
Principal Member