Contents

• Performance framework
• Financial performance
• Overview of caseload
• Lodgements
• Statistics
• Conduct of reviews
• Outcomes of review
• Timeliness
• Judicial review
• Social justice and equity
• Complaints
• Community and interagency liaison
• Major reviews
• Significant changes in the nature of functions or services
• Developments since the end of the year
• Case studies

Part 4 – Performance report

The Tribunals contributed to Australia’s migration and refugee programs during the year through the provision of quality and timely reviews of decisions, completing 8,229 reviews. The outcomes of review were favourable to applicants in 40% of the cases decided.

Performance framework

The Tribunals operate in a high volume decision making environment where the case law and legislation are complex and technical. In this context, fair and lawful reviews are dependent on a number of factors, including adequate resources, appropriate Member numbers and skilled staff support services.

Both Tribunals have the same statutory objective, set out respectively in sections 353 and 420 of the Migration Act:

The Tribunal shall, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

The key strategic priorities for the Tribunals are to meet the statutory objectives through the delivery of consistent, high quality reviews and timely and lawful decisions. Each review has to be conducted in a way that ensures, as far as practicable, that the applicant understands the issues and has a fair opportunity to comment on or respond to any matters which might lead to an adverse outcome. The Tribunals also aim to meet government and community expectations and to have effective working relationships with stakeholders. These priorities are reflected in the Tribunals’ Plan.

During 2008–09, the key outcome agreed with Government was:

To provide visa applicants and sponsors with fair, just, economical, informal and quick reviews of migration and refugee decisions.

Table 4.1 summarises the Tribunals’ performance against the indicators and measures that were set out in the 2008–09 portfolio budget statements.

Table 4.1 – Performance information and results

Measure	Result
Effectiveness in delivering outcomes
Extent to which the MRT and the RRT contribute to the quality and consistency of administrative decision making.	The Tribunals publish a range of guidance aimed at improving the quality and consistency of decision making. These include the Guide to Refugee Law, the Guidance on the Assessment of Credibility, the Interpreters’ Handbook and a range of Principal Member Directions on the conduct of reviews. The Tribunals’ Legal Services Section and Research and Information Services Section maintain extensive information holdings, and provide advice to Members on request. There is an active professional development program for Members which includes regular training sessions and attendance at conferences and seminars. The Tribunals liaise with the Department of Immigration and Citizenship (the Department) in relation to quality issues in decision making.
Extent to which there are professional and effective working relationships with stakeholders.	Regular community liaison meetings are held and the Tribunals consult on the development of new guidelines such as the Guidance on Vulnerable Persons. Regular liaison meetings with the Department are held to discuss operational issues, the impact of court decisions and caseload trends.
Performance Indicators
Less than 5% of Tribunal decisions set aside by judicial review.	248 or 4% of MRT decisions and 874 or 36% of RRT decisions made in 2008–09 were appealed to the courts. 51 of 164 MRT matters and 99 of 560 RRT matters resolved were remitted to the MRT or RRT for reconsideration. At the time of this Report, 1% of MRT and 4% of RRT decisions made in 2008–09 had been set aside by judicial review.
Less than 5 complaints per 1,000 cases decided.	The Tribunals received 31 complaints, less than 4 complaints per 1,000 cases decided. 21 complaints were in relation to the MRT, and 10 were in relation to the RRT.
70% of cases decided within time standards.	88% of bridging visa (detention cases) were decided within 7 working days; 73% of RRT cases were decided within 90 calendar days; 50% of general MRT cases were decided within 320 days; and 79% of MRT visa cancellations were decided within 150 calendar days.
7,500 MRT cases and 3,050 RRT cases decided.	The Tribunals decided 5,767 MRT cases and 2,462 RRT cases, which represented an increase of 17% for the MRT, and 11% for the RRT when compared to 2007–08.

As part of a review of agency outcome statements in response to the ‘Operation Sunlight’ report by former Senator Andrew Murray, the Government during the year settled a revised outcome statement for the Tribunals. The revised outcome statement, which will apply in 2009–10, is ‘To provide correct and preferable decisions for visa applicants and sponsors through independent, fair, just, economical, informal and quick merits reviews of migration and refugee decisions’.

The Tribunals are proceeding with a number of strategies to respond to a growth in the MRT caseload and to improve processing times for both MRT and RRT cases. These strategies include increasing the degree to which cases are allocated according to Member experience and proficiency, ensuring that appraisal and professional development and training activities are effective and outcome focussed, reviewing the information and research resources that are available to Members, and increasing the proportion of Members who are appointed on a full-time basis.

Financial performance

The MRT and the RRT are prescribed as a single agency, the ‘Migration Review Tribunal and Refugee Review Tribunal’ (the MRT-RRT) for the purposes of the Financial Management and Accountability Act 1997.

The Tribunals’ funding is based on a funding agreement with the Department of Finance and Deregulation which takes into account the number of cases decided and an assessment of fixed and variable costs. The Tribunals were funded to decide 7,500 MRT cases and 3,050 RRT cases in 2008–09. The Tribunals decided 5,767 MRT cases and 2,462 RRT cases, and the Tribunals’ revenue as set out below takes into account an adjustment to appropriation based on the number of cases decided.

The Tribunals’ revenues from ordinary activities totalled $38.3m and expenditure totalled $40.0m, resulting in a net loss of $1.7m.

Table 4.2 sets out the budgeted and actual costs to Government in 2008–09, and the budgeted costs for 2009–10.

Table 4.2 – Price of outputs

	Budget 2009–10 $’000	Actual 2008–09 $’000	Budget 2008–09 $’000
Price of outputs Independent merits review
Revenue from Government (appropriation)	41,014	38,266	39,837
Revenue from other sources	60	60	60
Total price of outputs	41,074	38,322	39,897
Average staffing levels*	315	305	325

* Including Members and staff.

The Tribunals administer application fees on behalf of Government. Details of administered revenue are set out in the financial statements.

The financial statements for 2008–09, which are set out in Part 6, have been audited by the Australian National Audit Office and received an unqualified audit opinion.

Overview of caseload

The Tribunals received 9,960 cases during the year and decided 8,229 cases.

The MRT received 7,422 cases, decided 5,767 cases and had 6,295 active cases at the end of the year.

The RRT received 2,538 cases and decided 2,462 cases, and had 624 active cases at the end of the year.

Statistical tables and charts covering the MRT and RRT caseloads are set out on pages 32–39.

Lodgements

Lodgements of applications for review tend to fluctuate between years, according to trends in primary applications and in primary decision making, as well as changes to visa criteria and jurisdiction.

The MRT has jurisdiction to review a wide range of visa, sponsorship and other decisions relating to migration and temporary entry visas. Across the categories that are MRT-reviewable, the Department deals with more than 500,000 cases annually. The primary grant rate across these categories is more than 90% and the percentage of cases which come to the MRT is less than 5% of all cases.

In 2008–09, the MRT had very large increases in the skilled, business and visitor categories. These increases reflected increasing demand for these visas.

About 40% of visa refusal lodgements to the MRT related to persons outside Australia seeking a visa. The MRT’s jurisdiction in relation to visas applied for outside Australia depends on whether there is a requirement for an Australian sponsor or close relative, and these cases are mainly in the skilled, visitor, partner and family categories.

The RRT has jurisdiction to review protection (refugee) visa decisions made within Australia. The Department deals with around 4,000 initial protection visa applications each year. All protection visa applicants within Australia have a right of review if a protection visa is not granted.

While lodgements to the RRT were made by applicants from over 90 countries, the majority were from the Asian region. 66% of the RRT’s lodgements involved nationals from 5 countries, the People’s Republic of China, India, Malaysia, Bangladesh and Indonesia. By far the largest numbers of applications were in relation to nationals of the People’s Republic of China. These amounted to more than triple the number of applications received from the next largest source country, India.

Applicants to both Tribunals tend to be located in the larger metropolitan areas. 52% of all applicants reside in New South Wales, mostly in the Sydney region. Approximately 25% of applicants reside in Victoria, 9% in Queensland, 8% in Western Australia, 3% in South Australia, 2% in the Australian Capital Territory and Northern Territory combined and less than 1% in Tasmania.

Detention cases comprised less than 3% of the cases before the Tribunals, with most applicants within Australia holding a bridging visa or other visa during the course of
the review.

Statistics

Caseload overview

	2008–09	2007–08	2006–07
Migration Review Tribunal
On hand at start of year	4,640	3,534	3,927
Lodged	7,422	6,325	5,810
Decided	5,767	5,219	6,203
On hand at end of year	6,295	4,640	3,534
Refugee Review Tribunal
On hand at start of year	548	582	849
Lodged	2,538	2,284	2,835
Decided	2,462	2,318	3,102
On hand at end of year	624	548	582

Lodgements

	2008–09	2007–08	2006–07	% change 2007–08 to 2008–09
Migration Review Tribunal
Visa refusal – Bridging	139	177	138	–21%
Visa refusal – Visitor	562	389	289	+44%
Visa refusal – Student	691	781	415	–12%
Visa refusal – Temporary business	684	626	243	+9%
Visa refusal – Permanent business	314	182	148	+73%
Visa refusal – Skilled	1,889	933	671	+102%
Visa refusal – Partner	1,372	1,474	1,927	–7%
Visa refusal – Family	536	537	559	–
Cancellation – Student	501	653	1,009	–23%
Sponsor approval refusal	209	113	52	+85%
Other	525	460	359	+14%
Total MRT	7,422	6,325	5,810	+17%
Refugee Review Tribunal
China (PRC)	999	890	1,081	+12%
India	287	215	364	+33%
Malaysia	165	126	86	+31%
Bangladesh	121	157	193	–23%
Indonesia	115	164	171	–30%
Lebanon	80	51	56	+57%
Sri Lanka	77	47	102	+64%
Korea, Republic of	60	41	43	+46%
Fiji	59	38	48	+55%
Pakistan	58	67	57	–13%
Other	517	488	634	+6%
Total RRT	2,538	2,284	2,835	+11%
Total MRT and RRT	9,960	8,609	8,645	+16%

MRT lodgements, decisions and cases on hand

 

RRT lodgements, decisions and cases on hand

 

MRT lodgements by case type

 

RRT lodgements by country of reference

 

Cases on hand

	2008–09	2007–08	2006–07
Migration Review Tribunal
Visa refusal – Bridging	24	18	10
Visa refusal – Visitor	178	254	158
Visa refusal – Student	699	571	250
Visa refusal – Temporary business	649	525	196
Visa refusal – Permanent business	322	173	123
Visa refusal – Skilled	1,746	815	459
Visa refusal – Partner	1,431	1,279	1,273
Visa refusal – Family	439	460	437
Cancellation – Student	224	135	333
Sponsor approval refusal	214	100	40
Other	369	310	255
Total MRT	6,295	4,640	3,534
Refugee Review Tribunal
China (PRC)	228	215	191
India	70	48	133
Malaysia	27	28	14
Bangladesh	18	38	33
Indonesia	17	31	21
Lebanon	15	14	13
Sri Lanka	32	13	20
Korea, Republic of	9	11	2
Fiji	14	9	12
Pakistan	15	11	14
Other	179	130	129
Total RRT	624	548	582
Total MRT and RRT	6,919	5,188	4,116

Timeliness of reviews

	2008–09	2007–08	2006–07
Average time taken in calendar days
Bridging (detention) cases (MRT)	7	7	7
Visa cancellations (MRT)	114	136	146
All other MRT cases	293	284	288
Protection visa cases	86	85	79
Percentage decided within time standards*
Bridging (detention) cases (MRT) – 7 working days	88%	93%	83%
Visa cancellations (MRT) – 150 calendar days	79%	66%	61%
All other MRT cases – 320 calendar days	50%	62%	65%
Protection visa cases – 90 calendar days	73%	70%	77%

* Time standards as set out in the Migration Act and Migration Regulations or in the 2008–09 Portfolio Budget Statement. For MRT cases, time taken is calculated from date of lodgement. For RRT cases, time taken is calculated from the date the Department’s documents are provided to the RRT. The average time from lodgement of an application for review to receipt of the Department’s documents was 18 days for MRT cases and 6 days for RRT cases.

Number and age of cases on hand

 

Percentage of cases decided within time standards

 

Outcomes of review

	2008–09	2007–08	2006–07
Migration Review Tribunal
Primary decision set aside or remitted	2,783	2,611	3,290
Primary decision affirmed	2,005	1,875	2,138
Application withdrawn by applicant	495	369	386
No jurisdiction to review*	484	364	389
Total	5,767	5,219	6,203
Refugee Review Tribunal
Primary decision set aside or remitted	468	422	649
Primary decision affirmed	1,787	1,661	2,202
Application withdrawn by applicant	29	33	52
No jurisdiction to review*	178	202	199
Total	2,462	2,318	3,102

* No jurisdiction decisions include applications not made within the prescribed time limit, not made in respect of reviewable decisions or not made by a person with standing to apply for review. The Tribunals’ procedures provide for an applicant to be given an opportunity to comment on any jurisdiction issue before a decision is made. Some cases raise complex questions as to whether a matter is reviewable and whether a person has been properly notified of a decision and of review rights.

Cases decided and set aside rates

	2008–09		2007–08		2006–07
	Cases	% set aside	Cases	% set aside	Cases	% set aside
Migration Review Tribunal
Visa refusal – Bridging	133	12%	169	25%	142	18%
Visa refusal – Visitor	637	59%	294	48%	232	44%
Visa refusal – Student	564	37%	459	49%	361	37%
Visa refusal – Temporary business	560	37%	294	37%	237	27%
Visa refusal – Permanent business	165	42%	131	47%	172	47%
Visa refusal – Skilled	958	51%	577	53%	728	62%
Visa refusal – Partner	1,221	67%	1,468	62%	2,267	69%
Visa refusal – Family	557	45%	517	43%	622	45%
Cancellation – Student	412	40%	853	51%	1,041	44%
Sponsor approval refusal	96	27%	55	36%	78	29%
Other	464	35%	402	32%	323	31%
Total MRT	5,767	48%	5,219	50%	6,203	53%
Refugee Review Tribunal
China (PRC)	986	21%	866	22%	1,189	22%
India	265	4%	300	5%	359	6%
Malaysia	166	7%	112	1%	95	2%
Bangladesh	141	9%	152	11%	230	11%
Indonesia	129	8%	154	3%	193	7%
Lebanon	79	32%	50	24%	54	15%
Korea, Republic of	62	5%	32	3%	49	4%
Sri Lanka	58	38%	55	31%	116	49%
Fiji	54	13%	41	12%	46	7%
Pakistan	54	17%	70	24%	65	20%
Other	468	32%	486	29%	706	35%
Total RRT	2,462	19%	2,318	18%	3,102	22%
Total MRT and RRT	8,229	40%	7,537	40%	9,305	42%

Conduct of reviews

The procedures of the MRT and the RRT are inquisitorial rather than adversarial in nature. Proceedings before the Tribunals do not take the form of litigation between parties. The review is an inquiry in which the Member defines the issues or criteria in dispute, initiates investigations or inquiries to supplement evidence provided by the applicant and the Department and ensures procedural momentum. At the same time, the Member must maintain an open and impartial mind.

Applicants appointed a representative to assist or represent them in 68% of MRT cases decided and in 46% of RRT cases decided.

In the 5,767 MRT cases decided, hearings were arranged in 3,979 cases, and held in 3,508 or 61% of the cases decided. In the 2,462 RRT cases decided, hearings were arranged in 2,240 cases, and held in 1,775 or 72% of the cases decided.

The cases which do not proceed to hearing include cases where a decision favourable to the applicant is made prior to the hearing date, cases where the applicant does not attend the hearing, and cases where the applicant withdraws his or her application before the hearing. Favourable decisions on the papers were made in 7.6% of MRT cases (including in 20% of skilled visa refusal cases) and in 0.2% of RRT cases.

Most hearings are held in person. Video links were used in 16% of hearings. The average duration of MRT hearings was 75 minutes, and the average duration of RRT hearings was 129 minutes. Two or more hearings were held in 9% of RRT cases and in 3% of MRT cases.

There were a number of legislative changes to procedural provisions during the year. These included changes to the powers to obtain information and the removal of the requirement to formally hand down decisions.

Outcomes of review

A written statement of decision and reasons is prepared in each case and these are provided to both the applicant and the Department.

The MRT set aside or remitted the primary decision in 48% of cases decided and affirmed the primary decision in 35% of cases decided. The remaining 17% of cases were either withdrawn by the applicant or were cases where the Tribunal decided it had no jurisdiction to conduct the review.

The RRT set aside or remitted the primary decision in 19% of cases decided and affirmed the primary decision in 73% of cases decided. The remaining 8% of cases were either withdrawn by the applicant or were cases where the Tribunal decided it had no jurisdiction to conduct the review.

The fact that a decision is set aside by the Tribunal is not necessarily a reflection on the quality of the primary decision, which may have been correct and reasonable at the time of the decision. Departmental officers in general make sound decisions across a very large volume of cases and make favourable decisions in a large proportion of cases.

Applicants who apply for Tribunal review typically respond to the concerns of the primary decision maker by providing submissions and further evidence to the Tribunal. By the time of the Tribunal’s decision, there is often considerable further information before the Tribunal, and there may be court judgments or legislative changes which may affect the outcome of the review.

Applicants were represented in 61% of cases before the Tribunals. Most commonly representation was by a registered migration agent. In cases where applicants were represented the set aside rate was 48% compared with 27% for unrepresented applicants. The difference was most notable for RRT cases where the set aside rate was 32% for represented applicants and 8% for unrepresented applicants. Unrepresented applicants may or may not have sought advice on their prospects of success before applying for review, and fewer than 60% of unrepresented applicants to the RRT attend hearings, compared to more than 90% of applicants who have a representative.

For the MRT, this difference was still notable with a set aside rate of 52% for represented applicants and 40% for unrepresented applicants.

Set aside rates also vary by gender of the review applicant. For the MRT, the set aside rate was 52% for females and 47% for males. For the RRT, the set aside rate for female review applicants was 26% and the set aside rate for male applicants was 16%.

A total of 233 cases (3% of the cases decided) were referred to the Department during the year for consideration under the Minister’s ministerial intervention guidelines. These cases raised humanitarian or compassionate circumstances which Members considered should be drawn to the attention of the Minister.

Timeliness

The Tribunals aim for a speedy resolution of cases. Members actively manage their caseloads from the time of allocation until decision. Members are expected to quickly identify the relevant issues in a review and the necessary courses of action to enable the review to be conducted as effectively and efficiently as possible. Older cases are regularly reviewed by Senior Members.

Some cases cannot be decided within the relevant time standard. These include cases where hearings need to be rescheduled because of illness or the unavailability of an interpreter, cases where the applicant requests further time to comment or respond to information, cases where new information becomes available, and cases where an assessment or information needs to be obtained from another body or agency.

The number of MRT cases on hand has increased over the last 3 years. Over the year, cases on hand increased by 36%. The Tribunals have responded by enhancing business intelligence to enable an increased batching of cases for efficiency gains, and increasing the days worked by part-time Members. Member appointments and reappointments since the end of the year have increased the proportion of full-time Members and this will have a positive impact in 2009–10.

As required by section 441A of the Migration Act, the Principal Member provided reports every 4 months to the Minister for Immigration and Citizenship for tabling in Parliament in relation to the operation of the 90 day period for RRT reviews. Over the year, 73% of RRT cases were decided within 90 days. The reasons why cases exceeded 90 days included compliance with statutory procedural requirements (55% of cases), further investigations, requests for further time to provide documents or submissions, and the postponement or adjournment of hearings.

Judicial review

For persons wishing to challenge a MRT or RRT decision, two avenues of judicial review are available. One is to the Federal Magistrates Court for review under section 476 of the Migration Act. The other is to the High Court pursuant to paragraph 75(v) of the Commonwealth Constitution.

The applicant and the Minister are generally the parties to a judicial review of a Tribunal decision. Although frequently joined as a party to proceedings, the Tribunals do not take an active role in litigation. As a matter of course, the Tribunals enter a submitting appearance, consistently with the principle that an administrative tribunal should generally not be an active party in judicial proceedings challenging its decisions.

In 2008–09 the number and percentage of decisions taken to judicial review decreased in comparison with previous years. Table 4.3 sets out judicial review applications and outcomes in relation to the Tribunal decisions made over the last 3 years.

Decision making under the Migration Act remains an area where the level of court scrutiny is very intense and where the same Tribunal decision or same legal point may be upheld or overturned at successive levels of appeal.

If a Tribunal decision is set aside or quashed, the court order is usually for the matter to be remitted to the Tribunal to be reconsidered. In such cases, the Tribunal (usually constituted by a different Member) must reconsider the case and make a fresh decision, taking into account the decision of the court and any further evidence or changed circumstances. In about 60% of MRT cases and 30% of RRT cases reconsidered, the reconstituted Tribunal makes a decision favourable to the applicant.

Table 4.3 – Judicial review applications and outcomes

	MRT			RRT
	2008–09	2007–08	2006–07	2008–09	2007–08	2006–07
Tribunal decisions	5,767	5,219	6,203	2,462	2,318	3,102
Court applications	248	250	353	874	1,069	1,566
% of Tribunal decisions	4.3%	4.8%	5.7%	35.5%	46.1%	50.5%
Applications resolved	164	236	343	560	1,018	1,542
– decision upheld or otherwise resolved	113	144	229	461	867	1,296
– set aside by consent or judgment	51	92	114	99	151	246
– % set aside of judicial applications resolved	31.1%	39.0%	33.2%	17.7%	14.8%	16.0%
– % of total MRT/RRT decisions set aside	0.9%	1.8%	1.8%	4.0%	6.5%	7.9%

The outcome of judicial review applications is reported on completion of all court appeals against a Tribunal decision.
Previous years’ figures are affected if a further court appeal is made in relation to a case previously counted as completed.

A summary of some significant judicial decisions since 1 July 2008 is set out below. These decisions had an impact on the Tribunals’ decision making or procedures, or on the operation of judicial review in relation to Tribunal decisions.

There are restrictions on identifying applicants for protection visas, and letter codes or reference numbers are used by the courts. Unless stated otherwise, references are to the Migration Act and Migration Regulations. The Minister for Immigration and Citizenship is a party in most cases, and ‘MIAC’, ‘MIMA’ or ‘MIMIA’ is used to identify the Minister in the abbreviated citations provided:

Domestic violence

Mr Sok applied for a partner visa on the basis of his marriage to an Australian citizen. His application was refused by a delegate of the Minister on the grounds that the relationship had ceased. On review before the MRT, Mr Sok claimed for the first time that the relationship had ceased due to domestic violence committed against him. The MRT, relying on an independent expert’s opinion from a social worker, found that Mr Sok had not suffered domestic violence. Overturning a judgment of the Full Court of the Federal Court that found that such claims of domestic violence could not be considered by the MRT if not raised in the original visa application, the High Court held that the MRT may exercise all the powers and discretions conferred on the Minister in relation to claims of ‘non-judicially determined domestic violence’. As such it had been correct for the MRT to consider if Mr Sok had suffered domestic violence. [Sok v MIAC [2008] HCA 50]

Information provided in confidence

Mr Kumar applied for a partner visa on the basis of his marriage to an Australian citizen. A delegate of the Minister decided not to grant the visa on the basis that the relationship was not a genuine spousal relationship. As part of the review, the MRT invited Mr Kumar in writing to comment on information, received by the MRT ‘in confidence, stating that your marriage to your nominator is contrived for the sole purpose of migrating to Australia’. Mr Kumar denied the allegation. Relying in part on the ‘confidential information’ the MRT affirmed the decision under review. On appeal, the High Court overturned a decision of the Full Court of the Federal Court that had found that adverse information provided to the MRT by a third party was not non-disclosable information if it concerned the commission of crimes and frauds and that the MRT should have also disclosed the identity of the informant and the full nature of the information. The High Court held that the legislation intended to afford a measure of procedural fairness to applicants, while protecting the public interest in protecting informants, lest information be withheld which assists in the proper administration of the Act. [MIAC v Kumar [2009] HCA 10]

Power to obtain information

The visa applicant applied for a protection visa on the basis that he feared persecution in Bangladesh by reason of his Ahmadiyya faith. In support of his application, the applicant provided to the RRT a letter of support from an Ahmadiyya association in Bangladesh. The RRT sent an email to the Department of Foreign Affairs and Trade (DFAT) requesting that it contact the head of the association to verify the authenticity of the letter. DFAT passed on the request to its post in Dhaka which, after meeting with the head of the organisation, provided a report to the RRT. The RRT affirmed the decision not to grant the visa. Dismissing an appeal, a Full Court of the Federal Court held that the RRT had not been required to issue a formal invitation to DFAT under subsection 424(2). The Court held that subsection 424(2) only applied to information that was additional to that already placed before the RRT by the invitee. The Court also observed that ‘documents’ were not ‘information’ and that the provision was directed at obtaining information from a natural person whose identity is known at the time of the invitation. [SZLPO v MIAC [2009] FCAFC 51] More recently, the High Court has confirmed that the Tribunals have a general power to obtain information, and that the Tribunals have a discretion to issue a formal invitation [MIAC v SZKTI [2009] HCA 30].

Inviting comment on adverse information

The visa applicant applied for a protection visa on the basis that he suffered persecution by religious extremists in Pakistan. A delegate of the Minister refused to grant the visa and that decision was subsequently affirmed by the RRT. The RRT invited the applicant at a hearing to comment on country information that indicated that he did not face a real chance of persecution throughout Pakistan, and subsequently relied upon that information in reaching its decision. A Full Court of the Federal Court agreed that there was no requirement for the RRT to also send a written invitation to the applicant to comment on the information and that the requirement to disclose ‘information’ could be done either at hearing or in writing. [SZMCD v MIAC [2009] FCAFC 46]

Obligation to be fair and just

The visa applicants applied for protection visas on the basis that the husband feared persecution because of his role as a political journalist for a newspaper and his membership of a political party. He claimed for the first time at the RRT hearing that there were false proceedings pending against him in Bangladesh. The RRT permitted him a week to provide documentary evidence but made it clear that it would probably not accept the claim as credible as it had not been mentioned previously and there were no details. The RRT subsequently found the documents provided by the applicant were not genuine. On appeal from a judgment by a Federal Magistrate quashing the RRT’s decision, a Full Court of the Federal Court held that there was nothing unfair or unjust in the manner in which the RRT proceeded. The Court held that the requirement that the RRT ‘must act in a way that is fair and just’ did not impose procedural requirements beyond what was provided for in the Act. [MIAC v SZMOK [2009] FCAFC 83]

Proper construction of visa condition 8202

Mr Brar’s student visa was granted in January 2007. He was studying commercial cookery. The education provider notified him in June 2007 that he had failed to maintain satisfactory course attendance, as required by visa condition 8202, and his visa was subsequently cancelled. On review, the MRT found that Mr Brar had breached the condition by failing to attend 80% of contact hours during term 2 of 2007, and that the breach was not due to exceptional circumstances beyond his control. The MRT decision in March 2008 applied the version of condition 8202 as it existed prior to 1 July 2007. A Federal Magistrate quashed the MRT’s decision. On appeal, a Full Court of the Federal Court held that condition 8202, as it was immediately prior to 1 July 2007, was not invalid and had been correctly applied by the MRT. [MIAC v Brar [2009] FCAFC 53]

Mr Maan’s student visa was granted in March 2007. Prior to 1 July 2007, he received a number of warning notices from his education provider in relation to inadequate course attendance. In September 2007, he was certified as not achieving satisfactory course attendance by his education provider. The MRT found, based upon the education provider’s certification, that mandatory grounds for cancellation existed as the applicant’s non-compliance with visa condition 8202 was not due to exceptional circumstances. A Federal Magistrate agreed with the approach adopted by the MRT, that non-compliance with condition 8202 occurs when the non-compliance is certified by the education provider not when the relevant student conduct occurs. In the case of certification of non-compliance after 1 July 2007, it is the current form of the condition which is applicable. [Maan v MRT & Anor [2008] FMCA 1738. At the time of this Report, this judgment was on appeal.]

Time limits for judicial review

The visa applicant applied for a protection visa in 1997. A delegate of the Minister refused to grant the visa and that decision was affirmed by the RRT in 1999. A copy of the RRT’s decision was sent to the applicant on the same day. Shortly thereafter, the applicant unsuccessfully asked the Minister to set aside the RRT decision and make a more favourable decision. In 2007, the applicant commenced a proceeding in the Federal Magistrates Court in respect of the RRT decision. A Full Court of the Federal Court found that the application for judicial review was not made within the statutory time limit. The Court held that if an applicant has physically received a copy of the RRT’s decision and reasons, there has been actual notification of the decision for the purposes of section 477 of the Act, and the time limits for lodging an application to the Courts will start to run. [SZKNX v MIAC [2008] FCAFC 176]

English language requirements for student visas

Mr Shah applied for a student visa in March 2007. A delegate of the Minister refused to grant the visa on the basis that the applicant had not provided evidence that he met the English language requirements for the visa. On review, the applicant submitted documents to the RRT, including English language test results showing he had been tested in August 2007 and obtained the necessary test score. In affirming the delegate’s decision, the MRT found that the regulations required the language test to have been conducted no more than 2 years prior to the application. [This was an area in which Members had different views as to whether or not later English language results could be considered.] A Federal Magistrate held that the expression, ‘less than two years before’ meant that the test must be conducted before the application was made, not during the processing of the application. [Shah v MIAC [2008] FMCA 108]

In a similar case involving a Mr Kamal, another Federal Magistrate concluded that the same words, ‘less than two years before’, did not preclude a test taken after the date of visa application. [Kamal v MIAC [2009] FMCA 238]. This judgment has been recently upheld on appeal by a Full Court of the Federal Court. [MIAC v Kamal [2009] FCAFC 98]

The High Court is expected to decide two cases dealing with subsection 91R(3) this year, and these are expected to clarify an area of some uncertainty – whether delegates and the RRT are precluded from having regard to ‘any conduct’ engaged in after arriving in Australia for the purpose of strengthening an applicant’s claim to be a refugee, whether or not it would support or undermine an applicant’s claims.

Social justice and equity

The Tribunals’ Service Charter expresses our commitment to providing a professional and courteous service to review applicants and other persons with whom we deal. It sets out general standards for client service covering day to day contact with the Tribunals, responding to correspondence, arrangements for attending hearings, the use of interpreters and the use of clear language in decisions. In 2009–10 the Tribunals plan to review and update the Service Charter in consultation with stakeholders.

Table 4.4 sets out the Tribunals’ performance during the year against service standards contained in the Service Charter.

Table 4.4 – Report against service standards

Service standard ice standard	Report against standard for 2008–09	Outcome
1. Be helpful, prompt and respectful when we deal with you	New Members and staff attend induction training emphasising the importance of providing quality service to clients. A ‘building client satisfaction’ course was designed during the year with the assistance of an external provider and, at the time of this Report, 127 staff had attended this course.	Achieved
2. Use language that is clear and easily understood	Clear English is used in correspondence and forms. Staff use the Translating and Interpreting Service to communicate with clients from non-English speaking backgrounds. There is a language register listing staff available to speak to applicants in their language.	Achieved
3. Listen carefully to what you say to us	The Tribunals book interpreters for hearings whenever they are requested by applicants. Interpreters were used in 76% of hearings held (67% MRT and 90% RRT) in 2008–09. The Tribunals employ staff from diverse backgrounds who speak more than 30 languages. Staff use the Translating and Interpreting Service to communicate with clients from non-English speaking backgrounds. Wherever possible, accredited interpreters are used in hearings.	Achieved
4. Acknowledge applications for review in writing within 2 working days	In 2008–09, an acknowledgement letter was sent within 2 working days of lodgement in more than 95% of cases.	Achieved
5. Include a contact name and telephone number on all our correspondence	All letters include a contact name and telephone number.	Achieved
6. Help you to understand our procedures	The Tribunals provide applicants with information about the Tribunals’ procedures at several stages during the review process. The Tribunal website includes a significant amount of information, including forms and factsheets. Tribunal case officers are available in each Registry to explain procedures over the counter or the telephone. There is an email enquiries address where applicants can seek general information about procedures.	Achieved
7. Provide information about where you can get advice and assistance	The Tribunal website, Service Charter and application forms provide information about where applicants can get advice and assistance. Factsheet MR2: Immigration Assistance notifies applicants of organisations and individuals who can provide them with immigration assistance. Factsheet MR4: Multilingual Advice explains in 16 community languages how applicants may contact the Translating and Interpreting Service.	Achieved
8. Engage interpreters for hearings, where required	The Tribunals book interpreters for hearings whenever they are requested by applicants. Interpreters were used for 76% of hearings (67% MRT and 90% RRT) in 2008–09.	Achieved
9. Attempt to assist you if you have special needs	The Tribunals employ a range of strategies to assist applicants with special needs. Our offices are wheelchair accessible and hearing loops are available for use in hearing rooms. Wherever possible, requests for interpreters of a particular gender, dialect, ethnicity or religion are met. Hearings can be held by video. A national enquiry number is available from anywhere in Australia (calls are charged at the cost of a local call – not available from mobile telephones). 698 fee waiver applications were considered, with the $1,400 application fee waived in 338 cases.	Achieved
10. Provide written reasons when we make a decision	In all cases, a written record of decision and the reasons for decision is provided to the review applicant and to the Department.	Achieved
11. Publish and adhere to guidelines relating to the priority to be given to particular cases	Guidelines relating to the priority to be given to particular cases are published in Principal Member Directions which are available on the Tribunal website. The Tribunals’ procedures require that the Principal Member be provided with a report each week on priority cases which have not been allocated to Members within specified timeframes.	Achieved
12. Publish the time standards within which we aim to complete reviews	Time standards are set out in Principal Member Direction 1/2009 and are published on the Tribunal website.	Achieved
13. Abide by the Australian Public Service Values and Code of Conduct (staff)	New staff attend induction training, which includes training on the APS Values and the Code of Conduct. Ongoing staff complete refresher training at regular intervals.	Achieved
14. Abide by the Member Code of Conduct (Members)	New Members attend induction training, which covers the Member Code of Conduct. All Members complete annual conflict of interest declaration forms and undergo performance appraisals by Senior Members.	Achieved

The Tribunals are particularly conscious that a high proportion of clients have a language other than English as their first language. Clear language in letters and forms and the availability of staff to assist applicants are important to ensuring that applicants understand their rights and our procedures and processes.

The Service Charter is available on the Tribunal website, along with the Tribunals’ Plan, the Member Code of Conduct, the Interpreters’ Handbook and Principal Member Directions relating to the conduct of reviews.

The Tribunal website is a significant information resource for applicants and others interested in the work of the Tribunals. The publications and forms available on the website are regularly reviewed to ensure that information and advice are up-to-date and readily understood by clients.

The Tribunals have offices in Sydney and Melbourne which are open between 8.30am and 5pm on working days. The Tribunals have an arrangement with the Administrative Appeals Tribunal (the AAT) for documents to be lodged and for hearings to be held at AAT offices in Brisbane, Adelaide and Perth. The Tribunals also have a national enquiry number – 1300 361 969 – available from anywhere in Australia (calls are charged at the cost of a local call – not available from mobile telephones). Persons who need the assistance of an interpreter can contact the Translating and Interpreting Service (TIS) on 131 450 for the cost of a local call.

The Tribunals have a Disability Action Plan and Workplace Diversity Program. Further information about these strategies and plans is set out in Part 5.

Complaints

As mentioned above, the Tribunals’ Service Charter sets out the standards of service that clients can expect. It also sets out how clients can comment on or complain about the services provided by the Tribunals. The Service Charter is available on the ‘complaints and compliments’ page on the Tribunal website.

A person who is dissatisfied with how we have dealt with a matter or with the standard of service they have received, and who has not been able to resolve this by contacting the office or the officer dealing with their case, can forward a written complaint marked ‘confidential’ to the Complaints Officer. A complaints and compliments button on the homepage of the Tribunal website makes it easier for clients to make a complaint.

Alternatively, a person can make a complaint to the Commonwealth Ombudsman, although, as a general rule, the Ombudsman will not investigate complaints until they have been raised with the relevant agency.

The Tribunals will acknowledge receipt of a complaint within 5 working days. A senior officer will investigate the complaint and aim to provide a written response to the complaint within 20 working days of receipt of the complaint. 100% of complaints dealt with in 2008–09 were responded to within 20 working days.

Table 4.5 sets out the number of complaints finalised over the last 3 years.

Table 4.5 – Complaints

	2008–09	2007–08	2006–07
Migration Review Tribunal
Complaints resolved	21	19	20
Cases decided	5,767	5,219	6,203
Complaints per 1,000 cases	3.6	3.6	3.2
Refugee Review Tribunal
Complaints resolved	10	9	9
Cases decided	2,462	2,318	3,102
Complaints per 1,000 cases	4	3.9	2.9

The majority of complaints related to the conduct of the review process. Others were about the timeliness of the review or the decision. The Tribunals considered that 26% of the complaints made during the year related to matters that could have been handled more appropriately. The Tribunals respond to specific issues and also consider changes to procedures and training and development needs. Set out below are summaries of 5 of the complaints received in 2008–09:

Table 4.6 sets out the complaints made to the Commonwealth Ombudsman over the last 3 years and the outcomes of the complaints resolved.

Table 4.6 – Complaints to the Commonwealth Ombudsman

	2008–09	2007–08	2006–07
New complaints	28	31	30
Complaints resolved	32	28	30
Administrative deficiency found	1	2	0

The finding of administrative deficiency in 2008–09 related to a failure to continue a redirection service in relation to a PO Box address which was being phased out.

The Tribunals referred 4 matters to Migration Agents Registration Authority (MARA) during 2008–09 relating to the conduct of migration agents. MARA is responsible for the registration of migration agents and monitoring the conduct of registered migration agents. The Migration Institute of Australia ceased to operate as MARA with effect from 1 July 2009 with the functions taken over by the Office of the Migration Agents Registration Authority, a discrete office attached to the Department of Immigration and Citizenship.

Community and interagency liaison

The Tribunals hold regular community liaison meetings to provide a forum for the Tribunals to meet, exchange information and consult with interested stakeholders. Representatives who attend the meetings are from migration and refugee advocacy groups, migration agents associations, human rights bodies and other government agencies. The aim of the meetings is to facilitate the distribution and exchange of information in relation to the Tribunals’ procedures and caseloads, to provide participants with updates on relevant developments and to consult with them, as appropriate, regarding these matters.

The Tribunals place great importance on maintaining regular contact with key stakeholders in migration, refugee and advocate organisations. With the aim of providing better access to justice, in June 2009, the Management Board endorsed a draft Tribunal Stakeholder Engagement Plan and the establishment of a Stakeholder Engagement Steering Committee to consult on the final form of the Plan and its subsequent implementation. The draft Plan envisages an increase in liaison, consultation and education activities.

Reflecting the value the Tribunals place on networking with like organisations, Members and senior officers of the Tribunals continued an active participation in several bodies concerned with the operations of tribunals, including the national and state chapters of the Council of Australasian Tribunals, the Australasian Institute of Judicial Administration (AIJA), the Australian Institute of Administrative Law (AIAL) and the International Association of Refugee Law Judges (IARLJ).

The Tribunals hold regular high level and local liaison meetings with the Department to discuss policy, operational and general business issues. The agencies also have ongoing daily operational contact. A joint Memorandum of Understanding (MOU) with the Department reflects the statutory and operational relationships between the agencies and is available on the Tribunal website.

In September 2008, the Principal Member and the Deputy Principal Member of the RRT attended the ‘Human Rights at the Frontier: Conference in New Zealand’ where the theme was New Zealand’s Immigration Legislation – an International Human Rights Law Perspective. They also took the opportunity to meet with the New Zealand migration and refugee appeals tribunals. In October 2008, the Principal Member delivered a speech on developments in the MRT and the RRT at the Migration Institute of Australia’s Immigration Law Conference. In December 2008, the Shadow Minister for Immigration and Citizenship, Dr Sharman Stone, visited the Tribunals’ Principal and NSW Registries and met with the senior leadership team of the Tribunals.

In January 2009, the Deputy Principal Member of the RRT, a Senior Member and seven Members attended the 8th World Conference of the IARLJ in Cape Town, South Africa where the theme was: ‘Where to Now: Changing the Future Course of International Protection’. The Deputy Principal Member chaired the working party session at the conference on procedures in respect of vulnerable persons.

There have been numerous requests for briefings by the Tribunals and information from the Tribunals over the last year. For example, in March 2009, the Tribunals hosted a visit by Mr John Vines, Chief Inspector for the UK Border Agency. In February 2009, Mr Brian Lewis, Registrar of the New Zealand Refugee Status Appeals Authority, visited the Victoria Registry to exchange information concerning caseload and current challenges. The Victoria Registry also hosted a visit from Justice North of the Federal Court of Australia who was interested to learn about information resources available to the Tribunals. The Tribunals also provided briefings on the Tribunals’ operations and caseloads to senior Australian diplomats, including the Australian Ambassador Designate and Consul-General Designate to Vietnam and the Australian Ambassador Designate to Amman, Jordan.

Major reviews

There were no major reviews in 2008–09.

Significant changes in the nature of functions or services

The Migration Legislation Amendment Act (No. 1) 2008 commenced on 27 October 2008 and removed the procedure for the handing down of Tribunal decisions and created an office of Deputy Principal Member of the MRT. The removal of the handing down requirement means that the Tribunals can now directly notify the applicant and the Department as soon as a decision is made.

Developments since the end of the year

There have been no significant developments since the end of the year.