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Part 2 –The role of the tribunals

The tribunals are statutory bodies providing final, independent merits review of visa and visa-related decisions made by the Minister or by officers of the department acting as delegates of the Minister.

The tribunals are established under the Migration Act. The tribunals’ jurisdictions, powers and procedures are set out in the Migration Act and the Migration Regulations. The tribunals comprise members (appointed for fixed terms by the Governor-General, under the Migration Act) and staff (appointed under the Migration Act and employed under the Public Service Act 1999 (the Public Service Act)).

All members and staff are cross-appointed to both tribunals and the tribunals operate as a single agency for the purposes of the Financial Management and Accountability Act 1997 (the FMA Act). With effect from 1 July 2014, the FMA Act will be replaced by the Public Governance, Performance and Accountability Act 2013 (the PGPA Act).

The MRT reviews a wide range of decisions for visas other than protection visas. The RRT reviews decisions for protection visas.

A visa is required by anyone who is not an Australian citizen and who wishes to travel to, and remain in, Australia. The Migration Act and the Migration Regulations set out the criteria for visas. There are specific criteria for particular visas and general criteria for matters such as health and character.

An application made to the department will result in a delegate not granting the visa if the delegate is not satisfied that a person meets the criteria for the visa. A visa may be cancelled if, for example, it was obtained by making false statements or if the visa holder has not abided by the conditions of the visa.

In reviewing a decision by a delegate to refuse to grant, or to cancel a visa, the tribunals are required to conduct a ‘merits review’ that is ‘independent, fair, just, economical, informal and quick’.

Merits review

Merits review is an administrative reconsideration of a case. A merits review body makes decisions within the same legislative framework as the primary decision maker, and may exercise all the powers and discretions conferred on the primary decision maker.

The principal objective of merits review is to ensure that the correct or preferable decision is reached in the particular case. The decision and reasons of a merits review body should also improve the general quality and consistency of decision making, and enhance openness and accountability of an area of government decision making.

The tribunals reconsider each case in light of the facts before them, the law and government policy. A decision made by a member in one case does not bind members in other cases but it is generally expected that a decision in a particular case would be consistent with other decisions in like matters.

The tribunals have the power to affirm the primary decision, vary the primary decision, set-aside the primary decision and substitute a new decision, or remit (return) a matter to the department for reconsideration with specific directions. For example, a matter may be remitted if a member is satisfied that a visa applicant meets one or more of the criteria for the visa. The department may then need to undertake further processing for other requirements for the visa such as health, security and character checks.

Matters reviewed by the MRT

The MRT reviews decisions for a wide range of visas. Reviewable decisions include decisions to refuse to grant visas, to cancel visas, to refuse to approve sponsors, and to refuse to approve a nominated position or business activity.

Bridging visas provide temporary lawful status to non-citizens in Australia, for example, while a temporary entrant is awaiting the outcome of an application for permanent residence. Visitor visas are for tourists and persons visiting relatives in Australia. Student visas are granted to persons enrolled at schools, colleges and universities in Australia.

Temporary work visas are for skilled workers to work in businesses in Australia. Business skills visas are for successful business people who obtain a substantial ownership interest in a new or existing business in Australia and actively participate in that business at a senior management level. Skilled visas are for persons in skilled occupations who have the education, skills and employability to contribute to the Australian economy.

Partner visas are for partners of Australian citizens or permanent residents. Family visas provide for the sponsorship, by Australian citizens and permanent residents, of children, parents, remaining relatives (persons who have limited family contacts other than relatives living in Australia), aged dependent relatives (elderly overseas relatives who have been financially supported by a close Australian relative for a reasonable period) and carers (persons who are able and willing to provide assistance needed by a relative in Australia). On 2 June 2014, the Migration Regulations were amended to remove a number of family visas (parent; aged parent; aged dependent relative; remaining relative; and carer). The amendments, with limited exceptions, apply to visa applications made on or after 2 June 2014 and do not affect cases that were before the MRT at that date.

Matters reviewed by the RRT

The RRT reviews decisions to refuse to grant or to cancel protection visas within Australia. The review of these decisions involves initial consideration of whether or not the applicant is a person to whom Australia has protection obligations. This involves consideration of whether they are a ‘refugee’ within the meaning of the 1951 United Nations (UN) Convention Relating to the Status of Refugees, as amended by the 1967 UN Protocol Relating to the Status of Refugees.

Where the applicant does not meet the definition of a refugee under the Refugees Convention, consideration is given to whether a protection visa may be granted if there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm if returned to another country. This is an alternate basis for the grant of a protection visa on ‘complementary protection’ grounds.

The term ‘refugee’ is defined in article 1A(2) of the Refugees Convention as a person who:

... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it ...

Other provisions of the Refugees Convention may be relevant to an assessment of the entitlement to a protection visa.

A number of provisions of the Migration Act expressly qualify certain aspects of the Refugees Convention. These provisions focus principally on the concepts of persecution and the nature and seriousness of certain crimes relevant to the determination of whether Australia has protection obligations to an asylum seeker. Many aspects of the Refugees Convention, however, are not specifically defined by the legislation and must be interpreted in accordance with established legal principles.

In order for a person to satisfy the complementary protection grounds, there must be substantial grounds for believing that, as a necessary and foreseeable consequence of a person being removed from Australia to a receiving country, there is a real risk they will suffer significant harm.

The legislation provides that a person would suffer ‘significant harm’ if:

• the person will be arbitrarily deprived of his or her life
• the death penalty will be carried out on the person
• the person will be subjected to torture
• the person will be subjected to cruel or inhuman treatment or punishment
• the person will be subjected to degrading treatment or punishment.

Some of these concepts are further qualified in the legislation.

Applying for review

Whenever a decision is made that is reviewable by the MRT or the RRT, the department is required by law to advise the persons involved of their review rights. This includes setting out who can apply for review, where an application can be made and the time limit within which the application must be made.

It is important that persons who receive a departmental decision consider the information about their review rights carefully. The tribunals do not have discretion to accept an application that has been lodged outside the relevant time limit or by a person who is not entitled to apply for review.

From 31 January 2014, the tribunals began to accept online applications. Copies of relevant application forms are available on the tribunals’ website, from the New South Wales and Victoria registries of the tribunals, and the Adelaide, Brisbane and Perth offices of the AAT.

A fee is payable for all MRT applications, except applications for review of a bridging visa decision, and any related decision to require a security bond regarding persons in immigration detention.

For applications lodged with the MRT, a fee of $1,604 applies. This may be reduced to $802 in cases of severe financial hardship. There is no fee at the time of application for the RRT. For RRT applications, if the RRT affirms the primary decision, a post-decision fee of $1,604 applies.

The fees payable for tribunal reviews are adjusted every two years in line with the Consumer Price Index. The next fee increase is scheduled for 1 July 2015.

The conduct of reviews

The tribunals are usually constituted for each review by a single member. The member is required to conduct an independent review and reach an independent decision.

An applicant may appoint a representative to assist with their case. With very limited exceptions, only a registered migration agent can act as a representative or provide immigration assistance to an applicant before the tribunals. A significant proportion of applicants are not represented, and tribunal procedures and information are designed to assist those applicants.

The applicant (or their representative) can request a copy of the documents before the tribunal and can at any time provide written submissions and written evidence.

The member must ensure that an applicant has the opportunity to address the issues arising in the review, particularly any information which may be the reason or part of the reason for affirming the decision under review. The tribunals can invite an applicant in writing or at a hearing to comment on or respond to relevant information.

In most cases, the applicant is invited to attend a hearing to give oral evidence and present arguments on the issues arising in the review. The applicant can ask that an interpreter be provided, and can be accompanied by a representative and/or a friend, relative or support person. The applicant can also request that the tribunal take evidence from other persons.

The hearings do not have a strict procedure; however, evidence is usually taken under oath or affirmation. The member will explain the procedures and ask questions. The applicant may or may not choose to make a statement. Neither the Minister nor the department is represented.

Hearings may be held in person, or through video or telephone links. All hearings are audio recorded and the applicant can request a copy of the recording.

MRT hearings are open to the public, unless this is not practical or there is a public interest reason for conducting the hearing in private. RRT hearings are not open to the public.

Since 2012–13 the MRT has used hearing lists in some of its caseloads and in 2013–14 expanded the use of hearing lists to include a wider coverage of student and skilled cases, and for business cases. Hearing lists involve a group of cases that have common issues being scheduled for hearings at the same session. Hearing lists allow for a high volume of cases to be reviewed and contribute towards a reduction in overall processing times, without affecting the quality of decision making. They have proved to be an effective means of streamlining hearing processes, reducing duplication of routine aspects of the hearing process such as the presentation of introductory information to each applicant.

Case management

Each year the tribunals determine a strategy for managing the combined MRT and RRT caseload, which comprises the applications for review on hand at the start of the year and the applications expected to be received during the year.

Decisions about processing priorities and the resources to be allocated to each category of case are influenced by the number of cases on hand in each category, projected lodgements, any prioritisation required by legislation or policy, the impact of processing delays on applicants, and the availability of resources.

Members work in teams led by a senior member. Member teams in Sydney comprised three specialist protection teams; one specialist family, partner and visitor team; one skilled team; and one business and students team. In Melbourne there is one specialist protection team; one student team; one skilled and business team; and one family, partner and visitor team. Member teams in Brisbane, Adelaide and Perth are not specialist teams but members in these teams individually specialise in particular categories of cases. The focus and composition of member teams are adjusted from time to time to reflect changes in the tribunals’ caseload or priorities.

Senior members act as practice leaders in their team’s area of specialisation and are responsible for managing their teams to achieve caseload targets. Their role includes managing their team’s caseload, providing advice and guidance on the quality and efficiency of reviews to members, and identifying and implementing strategies designed to increase the efficiency of the tribunals’ operations.

There are 137 tribunal members in 12 teams across Adelaide, Brisbane, Melbourne, Perth and Sydney

Following a successful trial of hearing lists to hear multiple cases consecutively in 2012–13, the use of hearing lists was extended to the majority of the skilled and student caseloads in 2013–14. More than half of the reviews completed in these caseloads in 2013–14 were heard in a hearing list format. A trial of hearing lists in some sections of the business caseload was undertaken in 2013–14.

The use of other strategies introduced in 2012–13 to improve efficiency continued in 2013–14, including the preparation of issues-based reasons for decisions and batching of protection cases by country of reference and protection issues raised.

Information available to assist applicants

The tribunals provide information to applicants about procedures and processes throughout a review, and publish a wide range of information that can assist applicants, or those assisting applicants, to engage effectively in the review process. Information that is available on the tribunals’ website includes:

• Principal Member directions on the conduct of reviews
• the Guide to Refugee Law in Australia
• guidelines on the assessment of credibility, vulnerable persons, expert opinion evidence, the use of interpreters, gender considerations, referrals of cases for ministerial intervention consideration
• forms, brochures and factsheets
• statistics on caseloads and the timeliness of reviews
• a table of processing times
• the tribunals’ service charter
• a webpage specifically aimed at the use of representatives
• a daily schedule for tribunal hearings
• a list of questions commonly asked by applicants and representatives.

Tribunal decisions of particular interest are published on the Australasian Legal Information Institute (AustLII) website at www.austlii.edu.au. The tribunals publish a bulletin, Précis, which summarises selected tribunal decisions, court judgments and caseload statistics.

Decisions

The member may make an oral decision at the end of a hearing; however, in many cases the member either allows time for further documents to be lodged or needs more time to consider the case.

In most cases (except where a case is withdrawn or where the tribunals are notified of the applicant’s death), a written statement of decision and reasons is prepared and provided to the applicant and the department.

Vision, purpose and values

The tribunals provide an independent and final merits review of decisions. The review must be fair, just, economical, informal and quick. We seek to treat all those with whom we deal, with courtesy, respect and dignity.

The Strategic Plan 2013–16, Member Code of Conduct, service charter and Interpreters’ Handbook promote and uphold these values. All of these documents are available on the tribunals’ website.

Of the 24,729 decisions made in 2013–14, 4,611 were published on AustLII