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Part 3 – 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 9,737 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 2009–10, the key outcome agreed with Government was:

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 had one program contributing to this outcome, which was:

Final independent merits review of decisions concerning refugee status and the refusal or cancellation of migration and refugee visas.

Table 3.1 summarises the tribunals’ performance against the program deliverables and key performance indicators that were set out in the 2009–10 portfolio budget statements.

Table 3.1 – Performance information and results

Measure	Result
DELIVERABLES
7,700 MRT cases	The tribunals decided 7,580 MRT cases, which represented an increase of 31% when compared to 2008–09.
3,050 RRT cases	The tribunals decided 2,157 RRT cases, which represented a decrease of 12% when compared to 2008–09.
Key performance indicators
Less than 5% of tribunal decisions set aside by judicial review.	242 or 3% of MRT decisions and 508 or 24% of RRT decisions made in 2009–10 were appealed to the courts. 56 of 165 MRT judicial review matters and 31 of 299 RRT judicial review matters resolved were remitted to the MRT or RRT for reconsideration. At the time of this Report, less than 1% of tribunal decisions made in 2009–10 had been set aside by judicial review.
70% of cases decided within time standards.	89% of bridging visas (detention cases) were decided within 7 working days; 69% of RRT cases were decided within 90 calendar days; 52% of general MRT cases were decided within 350 days; and 76% of MRT visa cancellations were decided within 150 calendar days.
Less than 5 complaints per 1,000 cases decided.	The tribunals received 22 complaints, less than 3 complaints per 1,000 cases decided. 18 complaints were in relation to the MRT, and 4 were in relation to the RRT. 18 of the complaints were member related, 3 were staff related and 1 complaint related to an interpreter engaged by the tribunals.
40% of decisions published.	The tribunals published 46% of all decisions. 44% of MRT decisions were published. 54% of RRT decisions were published.

The tribunals have implemented a number of strategies to respond to a growth in the MRT caseload. These strategies include improved case management training for members; increasing the opportunities for members to specialise, recognising that appropriate specialisation can improve the timeliness, quality and consistency of decision-making; increased use of batching cases with like issues to enhance efficiency; and more regular feedback on performance for members, including closer monitoring of and reporting on older cases.

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 7,700 MRT cases and 3,050 RRT cases in 2009–10. The tribunals decided 7,580 MRT cases and 2,157 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 $40.2m and expenditure totalled $44.8m, resulting in a net loss of $4.6m.

Table 3.2 sets out the budgeted and actual costs to Government in 2009–10, and the budgeted costs for 2010–11.

Table 3.2 – Price of outputs

	Budget 2010–11 $’000	Actual 2009–10 $’000	Budget 2009–10 $’000
Price of outputs Independent merits review
Revenue from Government (total available annual appropriation)	43,298	40,062	41,014
Revenue from other sources	56	110	60
Total price of outputs	43,354	40,172	41,074
Average staffing levels*	320	316	315

* 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 2009–10, which are set out in Part 5, have been audited by the Australian National Audit Office and received an unqualified audit opinion.

Overview of caseload

The tribunals received 10,603 cases during the year and decided 9,737 cases.

The MRT received 8,332 cases, decided 7,580 cases and had 7,048 active cases at the end of the year.

The RRT received 2,271 cases and decided 2,157 cases, and had 738 active cases at the
end of the year.

Statistical tables and charts covering the MRT and RRT caseloads are set out on pages 28–34.

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. Only a small proportion of primary decisions made by the Department come to the MRT.

In 2009–10, the MRT had very large increases in the student refusal and student cancellation categories, as well as moderate increases in the family and visitor categories.

Approximately 30% of visa refusal applications 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 for a close relative to be identified in the application, 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. Over 3,000 protection visa applications were initially refused by the Department this year. All protection visa applicants within Australia have a right to apply for review if a protection visa is refused.

While lodgements to the RRT were made by applicants from over 80 countries, the majority were from the Asian region. 64% of the RRT’s lodgements involved nationals of 5 countries, the People’s Republic of China, Fiji, Malaysia, India 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 three times the number of applications received from the next largest source country, Fiji.

Applicants to both tribunals tend to be located in the larger metropolitan areas. 49% of all applicants resided in New South Wales, mostly in the Sydney region. Approximately 25% of applicants resided in Victoria, 11% in Queensland, 9% in Western Australia, 3% in South Australia, 2% in the Australian Capital Territory and Northern Territory combined and less than 1% in Tasmania.

Cases involving applicants held in immigration detention 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

	2009–10	2008–09	2007–08
Migration Review Tribunal
On hand at start of year	6,295	4,640	3,534
Lodged	8,332	7,422	6,325
Decided	7,580	5,767	5,219
On hand at end of year	7,048	6,295	4,640
Refugee Review Tribunal
On hand at start of year	624	548	582
Lodged	2,271	2,538	2,284
Decided	2,157	2,462	2,318
On hand at end of year	738	624	548

Lodgements

	2009–10	2008–09	2007–08	% change 2008–09 to 2009–10
Migration Review Tribunal
Visa refusal – Bridging	139	139	177	–
Visa refusal – Visitor	690	562	389	+23%
Visa refusal – Student	1,937	691	781	+180%
Visa refusal – Temporary business	567	684	626	–17%
Visa refusal – Permanent business	285	314	182	–9%
Visa refusal – Skilled	1,182	1,889	933	–37%
Visa refusal – Partner	1,157	1,372	1,474	–16%
Visa refusal – Family	739	536	537	+38
Cancellation – Student	875	501	653	+75%
Sponsor approval refusal	187	209	113	–11%
Other	574	525	460	+9%
Total MRT	8,332	7,422	6,325	+12%
Refugee Review Tribunal
China (PRC)	751	999	890	–25%
Fiji	243	59	38	+312%
Malaysia	201	165	126	+22%
India	138	287	215	–52%
Indonesia	115	115	164	–
Lebanon	84	80	51	+5%
Sri Lanka	54	77	47	–30%
Pakistan	53	58	67	–9%
Egypt	52	39	18	+33%
Zimbabwe	52	40	31	+30%
Other	528	619	637	–15%
Total RRT	2,271	2,538	2,284	–11%
Total MRT and RRT	10,603	9,960	8,609	+6%

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

	2009–10	2008–09	2007–08
Migration Review Tribunal
Visa refusal – Bridging	12	24	18
Visa refusal – Visitor	189	178	254
Visa refusal – Student	1,898	699	571
Visa refusal – Temporary business	645	649	525
Visa refusal – Permanent business	328	322	173
Visa refusal – Skilled	1,034	1,746	815
Visa refusal – Partner	1,320	1,431	1,279
Visa refusal – Family	632	439	460
Cancellation – Student	289	224	135
Sponsor approval refusal	247	214	100
Other	454	369	310
Total MRT	7,048	6,295	4,640
Refugee Review Tribunal
China (PRC)	219	229	215
Fiji	130	14	9
Malaysia	32	27	28
India	39	70	48
Indonesia	10	17	31
Lebanon	19	15	14
Sri Lanka	18	32	13
Pakistan	16	15	11
Egypt	18	10	6
Zimbabwe	23	26	8
Other	199	169	165
Total RRT	738	624	548
Total MRT and RRT	7,786	6,919	5,188

Timeliness of reviews

	2009–10	2008–09	2007–08
Average time taken in calendar days
Bridging (detention) cases (MRT)	7	7	7
Visa cancellations (MRT)	123	114	136
All other MRT cases	311	293	284
Protection visa cases	99	86	85
Percentage decided within time standards*
Bridging (detention) cases (MRT) – 7 working days	89%	88%	93%
Visa cancellations (MRT) – 150 calendar days	76%	79%	66%
All other MRT cases – 350 calendar days†	52%	50%	41%
Protection visa cases – 90 calendar days	69%	73%	70%

* Time standards as set out in the Migration Act and Migration Regulations or in the 2009–10 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 19 days for MRT cases and 6 days for RRT cases.

†In 2008–09, the applicable time standard was 320 days. In 2007–08, the applicable time standard was 250 days. Figures shown are against the time standard which applied in the relevant financial year.

Number and age of cases on hand

Percentage of cases decided within time standards

In 2008-09, the applicable time standard was 320 days. In 2007-08, the applicable time standard was 250 days. Figures shown are against the time standard which applied in the relevant financial year.

Outcomes of review

	2009–10	2008–09	2007–08
Migration Review Tribunal
Primary decision set aside or remitted	3,429	2,783	2,611
Primary decision affirmed	2,700	2,005	1,875
Application withdrawn by applicant	796	495	369
No jurisdiction to review*	655	484	364
Total	7,580	5,767	5,219
Refugee Review Tribunal
Primary decision set aside or remitted	514	468	422
Primary decision affirmed	1,540	1,787	1,661
Application withdrawn by applicant	21	29	33
No jurisdiction to review*	82	178	202
Total	2,157	2,462	2,318

* 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

	2009–10			2008–09			2007–08
	Cases	% set aside		Cases	% set aside		Cases	% set aside
Migration Review Tribunal
Visa refusal – Bridging	151	15%		133	12%		169	25%
Visa refusal – Visitor	679	58%		637	59%		294	48%
Visa refusal – Student	738	42%		564	37%		459	49%
Visa refusal – Temporary business	571	30%		560	37%		294	37%
Visa refusal – Permanent business	278	46%		165	42%		131	47%
Visa refusal – Skilled	1,895	42%		958	51%		577	53%
Visa refusal – Partner	1,268	66%		1,221	67%		1,468	62%
Visa refusal – Family	546	42%		557	45%		517	43%
Cancellation – Student	811	41%		412	40%		853	51%
Sponsor approval refusal	161	21%		96	27%		55	36%
Other	482	38%		464	35%		402	32%
Total MRT	7,580	45%		5,767	48%		5,219	50%
Refugee Review Tribunal
China (PRC)	761	27%		986	21%		866	22%
Fiji	127	15%		54	13%		41	12%
Malaysia	196	3%		166	7%		112	1%
India	169	6%		265	4%		300	5%
Indonesia	122	7%		129	8%		154	3%
Lebanon	80	26%		79	32%		50	24%
Sri Lanka	68	32%		58	38%		55	31%
Pakistan	52	42%		54	17%		70	24%
Egypt	44	52%		35	31%		17	24%
Zimbabwe	55	58%		22	55%		31	58%
Other	483	30%		614	23%		622	22%
Total RRT	2,157	24%		2,462	19%		2,318	18%
Total MRT and RRT	9,737	40%		8,229	40%		7,537	40%

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 69% of MRT cases decided and in 55% of RRT cases decided.

In the 7,580 MRT cases decided, hearings were arranged in 5,154 cases, and held in 4,244 or 56% of the cases decided. In the 2,157 RRT cases decided, hearings were arranged in 2,070 cases, and held in 1,617 or 75% 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 8% of MRT cases (including in 15% of skilled visa refusal cases) and in less than 0.1% of RRT cases.

Most hearings are held in person. Video links were used in 18% of hearings. The average duration of MRT hearings was 74 minutes, and the average duration of RRT hearings was 131 minutes. Two or more hearings were held in 14% of RRT cases and in 3% of MRT cases.

Interpreters at hearings

The tribunals aim to identify, implement and promote best practice in interpreting at hearings. High quality interpreting services are fundamental to the work of the tribunals. In 2009–10, the tribunals arranged 9,523 hearings. Interpreters were required for 61% of MRT hearings and for 86% of RRT hearings, across approximately 90 languages and dialects.

The tribunals have an Interpreter Advisory Group (IAG) which has the primary objective of ensuring that the tribunals have access to a high standard of interpreters. The IAG monitors developments in the use of interpreters and makes recommendations to the Management Board and the Member Professional Development Committee. The IAG arranges or conducts training for both new and existing members on best practice in working with interpreters, and monitors the standardised languages list.

The IAG has a national membership. The IAG is chaired by Member Philippa McIntosh, and comprises Senior Member Irene O’Connell, Members Paul Fisher and Don Smyth, and five registry officers.

Outcomes of review

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

The MRT set aside or remitted the primary decision in 45% of cases decided and affirmed the primary decision in 36% of cases decided. The remaining 19% 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 24% of cases decided and affirmed the primary decision in 71% of cases decided. The remaining 5% 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 on the information available 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 the majority of cases.

Applicants for review typically address the issues identified by 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 additional information before the tribunal, and there may be court judgments or legislative changes which affect the outcome of the review.

Applicants were represented in 66% 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 47% compared with 28% for unrepresented applicants. The difference was most notable for RRT cases where the set aside rate was 34% for represented applicants and 11% 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 almost 90% of applicants who have a representative. For the MRT, there was also an appreciable difference in outcome for unrepresented applicants. The set aside rate was 50% for represented applicants and 35% 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 46% 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 326 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 to resolve cases quickly. Members actively manage their caseloads from the time of allocation until decision. Members are expected to identify quickly 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 reviewed by Senior Members to assist in minimising unnecessary delays.

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. During 2009–10, cases on hand increased by 12%. The tribunals have responded by enhancing business intelligence to enable increased batching of cases to improve efficiency, and increasing the days worked by part-time members. Member appointment processes in 2009 and 2010 resulted in the number of full-time members increasing from 6 to 30, and this has effectively increased member resources even though the overall number has not increased.

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, 69% of RRT cases were decided within 90 days. The average time to decision was 99 days. The reasons why cases exceeded 90 days included compliance with statutory procedural requirements (58% of cases), further investigations, submission of further material after the hearing, 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 Constitution. 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.

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 2009–10 the number and percentage of decisions taken to judicial review decreased in comparison with previous years. Table 3.3 sets out judicial review applications and outcomes in relation to the tribunal decisions made over the last 3 years.

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 32% of RRT cases reconsidered, the tribunal makes a decision favourable to the applicant.

Table 3.3 – Judicial review applications and outcomes as at 31 August 2010

		MRT				RRT
		2009–10	2008–09	2007–08		2009–10	2008–09	2007–08
Tribunal decisions		7,580	5,767	5,217		2,157	2,462	2,318
Court applications		242	243	244		508	847	1,090
% of Tribunal decisions		3.2%	4.4%	4.7%		23.6%	34.4%	47.0%
Applications resolved		165	236	241		299	817	1,090
– decision upheld or otherwise resolved		109	162	150		268	702	921
– set aside by consent or judgment		56	74	91		31	115	169
– set aside decisions as % of judicial applications resolved		33.9%	31.6%	37.8%		10.4%	14.1%	15.5%
– set aside decisions as % of MRT/RRT decisions made		0.7%	1.3%	1.7%		1.4%	4.7%	7.3%

Note: The table above shows the number of Tribunal decisions made during the reporting period that have been the subject of a judicial review application. The table also includes the judicial review outcome for those cases.

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.

Summaries of some significant judicial decisions since 1 July 2009 are 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.

As there are restrictions on identifying applicants for protection visas, letter codes or reference numbers are used by the courts in these cases. 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” is used to identify the Minister in the abbreviated citations provided.

RRT – Duty to inquire

The visa applicant applied for a protection visa on the basis that he feared persecution in Bangladesh by reason of his conversion to the Ahmadiyya faith. In support of his claim to have converted, he supplied certificates, each of which included the address and telephone number of its author. The RRT made an inquiry of the Ahmadiyya Muslim Association of Australia (the Association) as to whether the visa applicant was known to the Ahmadiyya Muslim Jamaat in Bangladesh (AMJ). The Association advised that the AMJ had informed it that the visa applicant’s name was not in their records and that both certificates were fake and forged. The RRT invited the visa applicant to comment on that information pursuant to section 424A of the Migration Act 1958. In reply, the visa applicant maintained that he was an Ahmadi, however, he could not otherwise prove that to be so. The RRT affirmed the decision not to grant the visa. On appeal, the High Court overturned the decision of the Full Court of the Federal Court that had found that the RRT had unreasonably failed to make further inquiries of the authors of the certificates or the Association. The High Court held there was no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise unreasonable. The Court did indicate however that a failure to make inquiries could, in limited circumstances, constitute jurisdictional error, for example, for failing to conduct a review. [MIAC v SZIAI & Anor [2009] HCA 39]

RRT – Inviting comment on adverse information

The visa applicant applied for a protection visa on the basis of his claimed involvement with Falun Gong. The RRT affirmed the decision to refuse to grant the protection visa. It rejected the visa applicant’s claim that he was a Falun Gong practitioner, based on inconsistencies in his evidence. Prior to the hearing, a tribunal officer recorded a file note of a telephone conversation with a representative from a local Falun Dafa organisation, who confirmed some aspects, but not others, of the visa applicant’s claims. The RRT did not make any findings in relation to the file note. The Federal Magistrates Court on review found the RRT breached section 424A of the Migration Act by not giving the applicant an opportunity to comment on the file note. On appeal, the High Court rejected this approach, finding that the operation of section 424A depends on the RRT’s “consideration”, that is, its opinion, that certain information would be the reason or part of the reason for affirming the decision under review. There was no evidence or necessary inference in this case that the RRT “considered” or had any opinion about the file note. [MIAC v SZLFX & Anor [2009] HCA 31]

RRT – compliance with statutory procedural requirements

The visa applicants, a family, applied for protection visas on the basis of the father’s claim to be a refugee. Their application was refused by a delegate of the Minister, and they sought review of that decision by the RRT. In their application for review, the daughter was nominated by the family, in accordance with section 441G of the Migration Act, as the person authorised to receive communications from the RRT (the authorised recipient). The RRT subsequently sent an invitation to attend a hearing to the visa applicants, addressed to the father and not the authorised recipient. The visa applicants responded to the invitation and each attended the hearing. On appeal, the High Court overturned the decision of the Federal Court that had found that by sending the invitation to the father, and not the authorised recipient, the tribunal had failed to comply with the Act and such failure was a jurisdictional error. The High Court held that despite the detailed prescription of the legislative regime and the use of imperative language, it was an error to conclude that sections 441G and 441A were inviolable restraints conditioning the RRT’s jurisdiction to conduct and decide a review. They were procedural steps designed to ensure that an applicant for review was able to properly advance his or her case at the hearing; a failure to comply with them requires consideration of whether, in the events that occurred, the applicant was denied natural justice. In the present case, there was no denial of natural justice. [MIAC v SZIZO [2009] HCA 37]

RRT – Conduct in Australia of protection visa applicants

The visa applicants applied for protection visas on the basis of their claimed involvement with Falun Gong. A delegate of the Minister refused the applications and those decisions were subsequently affirmed by the RRT. In each case, the RRT determined that under subsection 91R(3) of the Migration Act, it should disregard the visa applicants Falun Gong related activities in Australia when determining whether each applicant had a well founded fear of persecution as such actions were for the purpose of strengthening their claim to be a refugee. The High Court overturned a decision of the Full Court of the Federal Court that found the RRT had erred by taking into account, adversely to the visa applicants, and contrary to subsection 91R(3) of the Act, conduct in which they had engaged in Australia. The High Court held that subsection 91R(3) does not require conduct falling within the terms of that provision to be disregarded for all purposes. The conduct, and its motivation, may be taken into account if it would not strengthen the claim to be a refugee. [MIAC v SZJGV; MIAC v SZJXO [2009] HCA 40]

MRT – English language requirements for skilled visas

Mr Berenguel applied for Skilled (Residence) (Class VB) visa in April 2008. On his application form he indicated that he had booked an International English Language Testing System (IELTS) test. After the application had been lodged, he sat the test and achieved a score sufficient to meet the standard of “competent English”. A delegate of the Minster subsequently refused to grant the visa on the basis that Mr Berenguel did not meet clause 885.213 of Schedule 2 to the Migration Regulations 1994 which appeared under the heading ‘Criteria to be satisfied at time of application’ and required visa applicants to have ‘vocational English’ or ‘competent English’ as defined in regulations 1.15B and 1.15C. Those regulations require a person to have achieved a specified score, in a test conducted not more than 2 years before the day on which the application was lodged. The delegate found that as the IELTS test result was achieved in a test conducted after the application was made, he did not meet the requirement of having the requisite level of English at time of application. The High Court set aside the delegate’s decision finding that the criterion that “the applicant has competent English”, even if appearing under heading as a “time of application” criterion, can be met if the visa applicant sits a test after the date of application and provides evidence to the Minister or the tribunal of a satisfactory test score. [Berenguel v MIAC [2010] HCA 8]

Mr Grant applied for a temporary skilled visa. He sought to satisfy the English language proficiency requirement in subclause 485.215(c) of Schedule 2 to the Migration Regulations 1994 on the basis that he had arranged and undergone an English language test before he applied for the visa in which he did not achieve the necessary test score. After lodging the visa application, Mr Grant made arrangements to undergo a further test, in which he subsequently achieved the necessary test score. The MRT found that Mr Grant did not satisfy clause 485.215, as he neither demonstrated the necessary English language proficiency at the time the application was made, nor had he made arrangements at that time to undergo a test. On appeal, the Federal Court overturned the Federal Magistrates Court orders that had set aside the MRT decision. The Federal Court held Mr Grant did not satisfy clause 485.215(c) because he had not ”made arrangements to undergo” a relevant language test. Rather he had taken the language test but not achieved the necessary standard of English as required by clause 485.215(b). The fact that he subsequently proved that he had competent English by the taking of a test at a later time was insufficient. [MIAC v Grant [2009] FCA 1059]

RRT – Illogicality and irrationality in fact finding

The visa applicant applied for a protection visa on the basis of his claimed homosexuality. He had travelled to and lived in the United Arab Emirates (UAE) and claimed to have had relationships with two other men. The RRT was not satisfied that he was a homosexual who feared persecution. It found that his return to Pakistan for three weeks in 2007 and his failure to seek asylum when he briefly visited the United Kingdom in 2006 were inconsistent with a fear of persecution. On appeal, the High Court set aside the decision of the Federal Court that had found that the RRT’s reasoning was illogical and irrational. The High Court held that whilst illogicality or irrationality in jurisdictional fact finding can be a jurisdictional error, the RRT’s decision was not illogical or irrational. The Court held that if reasonable minds might differ in respect of the conclusions to be drawn from probative evidence, a decision cannot be said to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion. [MIAC v SZMDS [2010] HCA 16]

MRT – Proper construction of condition 8202

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 Full Court of the Federal Court upheld the Federal Magistrates Court decision at first instance finding that, after 1 July 2007, it is the certification by the education provider which constitutes non-conformity with the condition. [Maan v MIAC [2009] FCAFC 150]

MRT – Automatic cancellation of student visas

Mr Mo and Mr Hossain had been granted student visas to undertake study in Australia. During the course of their studies, their education providers issued both visa holders with a notice under section 20 of the Education for Overseas Students Act 2007 (ESOS Act). The notice informed the students that they had been certified as not achieving satisfactory course progress/attendance for condition 8202(3) of the Migration Regulations 1994, and that they had 28 days in which to attend a specified Department of Immigration office for the purpose of making any submissions about the breach of condition 8202. Neither responded to the notice, and their visas were automatically cancelled by operation of section 137J of the Migration Act. Mr Mo and Mr Hossain unsuccessfully sought revocation of the automatic visa cancellation. On appeal, the Federal Court held that as the Education Services for Overseas Students Regulations 2001 (ESOS Regulations) did not prescribe a student visa condition for s.20(1) of the ESOS Act at the relevant time, the notices sent to Mr Mo and Mr Hossain were ineffective for the purpose of section 20 of the ESOS Act and section 137J of the Migration Act. It followed that s.137J did not operate to automatically cancel the visas. [Hossain v MIAC [2010] FCA 161; Mo v MIAC [2010] FCA 162]

MRT – Domestic violence

Ms Muliyana entered Australia on a temporary spouse visa, having applied for a permanent Partner visa. Unknown to her, within days after her arrival her sponsoring husband informed the Department of Immigration that their relationship was not continuing. Shortly thereafter, the parties travelled to India and Ms Muliyana was abandoned by the sponsor. She gave evidence that when she returned to Australia her husband was violent. She subsequently obtained an intervention order against him. The MRT found that Ms Muliyana had suffered domestic violence at the hands of her husband on her most recent return to Australia, but that such violence had occurred after the cessation of the spousal relationship. As it found that paragraph 100.221(4)(c) of Schedule 2 to the Migration Regulations impliedly required the violence to have occurred during the currency of the relationship, it concluded that Ms Muliyana did not meet the criteria for the grant of the visa. On appeal, the Full Court of the Federal Court held that for the domestic violence provisions in paragraph 100.221(4)(c) it matters not when the violence occurred, whether before or after cessation of the spousal relationship, provided it was ‘domestic violence’ as defined. [Muliyana v MIAC [2010] FCAFC 24]

MRT – Notification of primary decisions

Mr Abdul Manaf’s application for a temporary business visa was refused by a delegate of the Minister in August 2007. Notification of that decision was sent by registered post to an address for correspondence provided by Mr Abdul Manaf at the time of visa application. He subsequently advised the Department of Immigration and Citizenship of a change of address. Shortly thereafter, a further letter enclosing the first notification letter was sent to Mr Abdul Manaf. However, the second notification letter was incorrectly sent to an address that did not exist. Mr Abdul Manaf later applied for review. The MRT found that it did not have jurisdiction to review the decision because the application had not been made within time. It found that valid notification of the delegate’s decision had occurred with the first notification in August 2007, and that the review application was not made within the prescribed 21 days. On appeal, the Federal Court overturned the Federal Magistrates Court decision that had found the second notification invalidated the first notification. The Federal Court held that a valid notification of a decision exhausts the Minister’s obligation under section 66 of the Migration Act and any further ‘notifications’ are of no legal consequence. [MIAC v Abdul Manaf [2009] FCA 963]

Mr Hasan’s application for a skilled visa was refused by a delegate of the Minister in October 2008 and notice of that decision was sent to Mr Hasan by email. The decision notification letter advised that “the enclosed brochure … provides more information about the review processes and where applications for review can be lodged”. The letter itself included the addresses of the New South Wales and Victorian registries of the MRT as places where applications for review could be lodged. The relevant brochure identified the New South Wales and Victorian registries of the MRT as well as registries of the Administrative Appeals Tribunal in Queensland, South Australia and Western Australia but was not in fact enclosed with the letter. Mr Hasan lodged a review application in March 2009, some five months after receipt of the delegate’s decision. In finding the review application was lodged outside the prescribed time period, the MRT was satisfied that the decision notification letter complied with the requirements of section 66 of the Migration Act, including by stating where an application for review could be made. On appeal, the Federal Court held that subparagraph 66(2)(d)(iv) requires the decision notification to include every place at which an application for review may be lodged. Furthermore, the period for giving an application to the MRT will only commence to run when the Minister notifies a person in accordance with sub paragraph 66(2)(d)(iv). [Hasan v MIAC [2010] FCA 375] More recently the Full Court of the Federal Court has concluded that the Act does not require notification of all possible places of lodgement to all potential applicants for review regardless of where they reside. Consideration must be given to the extent and consequences of not listing all possible places of lodgement. Also, lodging a review application prior to the prescribed period commencing did not necessarily result in an invalid review application. [SZOFE v MIAC [2010] FCAFC 79]

RRT – Power to obtain information

The visa applicant’s application for a protection visa was refused by a delegate of the Minister, and he subsequently sought review of that decision by the RRT. The RRT sent a letter to the visa applicant acknowledging receipt of the application. The acknowledgment letter stated, “you should … immediately send us any documents, information or other evidence you want the Tribunal to consider.” The Federal Magistrates Court set aside the subsequent RRT decision concluding that the acknowledgment letter was an invitation to provide additional information pursuant to section 424 of the Migration Act and, as it did not comply with the requirement in subsection 424B(2) to specify the prescribed period in which to provide the information, the RRT breached section 424. On appeal, the Federal Court found the Federal Magistrate erred in characterising the acknowledgment letter as an invitation under section 424(2). The RRT had other powers under which to say what it did in the acknowledgment letter (sections 415(1) and 424(1)) and the exercise of that power did not contravene any provision of the Act [MIAC v SZNAV [2009] FCAFC 109].

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. A review of the Service Charter will be finalised in the latter half of 2010. In reviewing the Service Charter, the tribunals have undertaken extensive stakeholder consultation.

Table 3.4 sets out the tribunals’ performance during the year against service standards contained in the Service Charter.

Table 3.4 – Report against service standards

Service standard	Report against standard for 2009–10	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 attended by all staff in both registries. The course focussed on providing positive service outcomes for clients.	Achieved
2. Use language that is clear and easily understood	Clear English is used in correspondence and forms. Staff use professional interpreters 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 69% of hearings held (61% MRT and 86% RRT) in 2009–10. The tribunals employ staff from diverse backgrounds who speak more than 30 languages. Staff use professional interpreters 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 2009–10, an acknowledgement letter was sent within 2 working days of lodgement in more than 98% 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 tribunal procedures at several stages during the review process. The tribunals’ website includes a significant amount of information, including forms and factsheets. Case officers are available in the NSW and Victorian registries to explain procedures over the counter or the telephone. The tribunals provide an email enquiries address applicants can use to seek general information about procedures.	Achieved
7. Provide information about where you can get advice and assistance	The tribunals’ 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 69% of hearings (61% MRT and 86% RRT) in 2009–10.	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). 893 fee waiver applications were considered, with the $1,400 application fee waived in 496 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 tribunals’ website. The tribunals’ Management Board receives reports each month on the numbers of priority cases constituted to Members.	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. The tribunals have published an online processing times calculator allowing applicants to get an estimate of the processing time for their application.	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 tribunals’ 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 Service Charter is available on the 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 new ‘Information for Representatives’ webpage is specifically aimed at supporting representatives, bringing together most often used resources and information. A new Frequently Asked Questions page answers representatives’ most commonly asked questions.

The tribunals value our relations with stakeholders in the community and hold regular community liaison meetings. Our Stakeholder Engagement Plan 2010–11 sets out how we seek to involve stakeholders and to understand stakeholders’ perspectives.

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 4.

Complaints

As outlined 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 tribunals’ website.

A person who is dissatisfied with how the tribunals 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 tribunals’ 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 2009–10 were responded to within 20 working days.

Table 3.5 sets out the number of complaints finalised over the last 3 years.

Table 3.5 – Complaints

	2009–10	2008–09	2007–08
Migration Review Tribunal
Complaints resolved	18	21	19
Cases decided	7,580	5,767	5,219
Complaints per 1,000 cases	2.4	3.6	3.6
Refugee Review Tribunal
Complaints resolved	4	10	9
Cases decided	2,157	2,462	2,318
Complaints per 1,000 cases	1.9	4	3.9

The majority of complaints related to the conduct of the review process. Others were about the timeliness of the review or the decision. Following investigation, the tribunals formed the view that 27% of the complaints made during the year related to matters that could have been handled more appropriately. The tribunals respond to specific issues raised in complaints and also consider changes to procedures and training and development needs. Set out below are summaries of 5 of the complaints upheld in 2009–10:

Case 1 – The applicant claimed that it had been two years since the application was lodged and almost one year since the hearing was conducted and that the member had not yet made a decision, which was an unreasonably long time. The delay was acknowledged and the member gave an undertaking to make a decision or write to the applicant before the end of the month.

Case 2 – The applicant claimed that during the hearing, the member said that if he was thinking of making an unfavourable decision, he would give the applicant an opportunity to comment on the reasons for that decision. The member made an unfavourable decision without giving the applicant an opportunity to comment. An apology was given to the applicant and the member’s decision vacated.

Case 3 – The applicant claimed that there had been a significant delay in determining whether amendments in relation to the health criteria were applicable to the secondary review applicant. The member made a decision that the public interest criterion was applicable to the secondary review applicant.

Case 4 – The applicant felt the member demonstrated bias and the member’s manner was aggressive, adversarial and intimidating. An apology was made regarding the member’s conduct and the case was reconstituted to a different member.

Case 5 – The interpreter raised concerns regarding the member’s treatment of her during a hearing. An apology was made.

Table 3.6 sets out the complaints made to the Commonwealth Ombudsman over the last 3 years and the outcomes of the complaints resolved.

Table 3.6 – Complaints to the Commonwealth Ombudsman

	2009–10	2008–09	2007–08
New complaints	19	28	31
Complaints resolved	18	32	28
Administrative deficiency found	0	1	2

MIGRATION AGENTS

More than 66% of applicants were represented in relation to their review application. With limited exceptions, a person acting as a representative is required to be a registered migration agent. Registered migration agents are required to conduct themselves in accordance with a code of conduct. The tribunals referred 6 matters to the Office of the Migration Agents Registration Authority (OMARA) during 2009–10 relating to the conduct of migration agents. OMARA is responsible for the registration of migration agents, monitoring the conduct of registered migration agents and investigating complaints and taking appropriate disciplinary action against registered migration agents who breach the code of conduct or behave in an unprofessional or unethical way.

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 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, the tribunals’ Stakeholder Engagement Plan was developed in May 2010 and is available on the tribunals’ website. The Stakeholder Engagement Plan sets out how the tribunals will engage with stakeholders and the engagement activities planned for 2010–11 and beyond.

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 Memorandum of Understanding with the Department reflects the statutory and operational relationships between the agencies and is available on the tribunals’ website.

In August 2009, the Principal Member delivered a speech on controlling migration litigation to the National Administrative Law Forum, Canberra (now published in AIAL Forum, No. 63 (September 2010)). In February 2010, tribunal members attended the Australian Chapter Regional Conference of the IARLJ. The Principal Member delivered a speech on Credibility, Bad Faith Claims and s.91R(3) at this conference.

Major reviews

There were no major reviews in 2009–10.

Significant changes in the nature of functions or services

Significant reforms are being made to the Freedom of Information Act 1982 with the passage of the Australian Information Commissioner Act 2010 and the Freedom of Information Amendment (Reform) Act 2010. The first tranche of reforms come into force on 1 November 2010. The tribunals have developed an implementation plan for the reforms which will shape the way the tribunals process requests and affect the kinds of information the tribunals publish.

Developments since the end of the year

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