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Part 2 –The role of the tribunals
Contents
The role of the tribunals
The tribunals were statutory bodies providing final, independent merits review of visa and visa-related decisions made by the Minister for Immigration and Border Protection (the Minister), or by officers of the Department of Immigration and Border Protection (the department) acting as delegates of the Minister.
The tribunals were established under the Migration Act. The tribunals’ jurisdictions, powers and procedures were set out in the Migration Act and the Migration Regulations. The tribunals comprised 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 were cross-appointed to both tribunals and the tribunals operated as a single agency for the purposes of the Public Governance, Performance and Accountability Act 2013 (the PGPA Act).
The MRT reviewed a wide range of decisions for visas other than protection visas. The RRT reviewed 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 were required to conduct a ‘merits review’ that was ‘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 reconsidered each case in light of the facts before them, the law and government policy. A decision made by a member in one case did not bind members in other cases but it was generally expected that a decision in a particular case would be consistent with other decisions in like matters.
The tribunals had 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 have been remitted if a member was satisfied that a visa applicant met one or more of the criteria for the visa. The department may then have needed to undertake further processing for other requirements for the visa such as health, security and character checks.
Matters reviewed by the MRT
The MRT reviewed decisions for a wide range of visas. Reviewable decisions included 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).
Matters reviewed by the RRT
The RRT reviewed decisions to refuse to grant or to cancel protection visas within Australia. The review of these decisions involved initial consideration of whether or not the applicant is a person to whom Australia has protection obligations. This involved 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.
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 have been relevant to an assessment of the entitlement to a protection visa.
For applications made on or after 16 December 2014 to the department, the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 amended the Migration Act to incorporate the definition of ‘refugee’ into the Act. The amended Act refers to a person in respect of whom Australia has protection obligations because the person is a ‘refugee‘. The term ‘refugee’ is defined in section 5H(1) of the Act as follows:
(1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a) in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Other provisions of the amended Act may have been relevant to an assessment of the entitlement to a protection visa.
Where the applicant did not meet the definition of a refugee under the Refugees Convention, or the amended Migration Act for applications lodged on or after 16 December 2014, consideration was given to whether a protection visa may be granted if there were substantial grounds for believing that there is a real risk the applicant would have suffered significant harm if returned to another country. This was an alternate basis for the grant of a protection visa on ‘complementary protection’ grounds.
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, as defined in the legislation.
Applying for review
Whenever a decision was made that was reviewable by the MRT or the RRT, the department was required by law to advise the persons involved of their review rights. This included setting out who could apply for review, where an application could be made and the time limit within which the application must have been made.
It was important that persons who received a departmental decision considered the information about their review rights carefully. The tribunals did not have discretion to accept an application that had been lodged outside the relevant time limit or by a person who was not entitled to apply for review.
Applications for review could be lodged online. Copies of paper application forms were also 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 was 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 applied. This was able to be reduced to $802 in cases of severe financial hardship. There was no fee at the time of application for the RRT. For RRT applications, if the RRT affirmed the primary decision, a post-decision fee of $1,604 applied.
The fees payable for tribunal reviews were adjusted every two years in line with the Consumer Price Index. With a fee increase scheduled for 1 July 2015.
The conduct of reviews
The tribunals were usually constituted for each review by a single member. The member was required to conduct an independent review and reach an independent decision.
An applicant was able to appoint a representative to assist with their case. With very limited exceptions, only a registered migration agent could act as a representative or provide immigration assistance to an applicant before the tribunals. A significant proportion of applicants were not represented, and tribunal procedures and information were designed to assist those applicants.
The applicant (or their representative) could request a copy of the documents before the tribunal. They could also, at any time until a decision on the review was made, provide written submissions and written evidence.
The member was required to ensure that an applicant had the opportunity to address the issues arising in the review, particularly any information which may have been the reason or part of the reason for affirming the decision under review. The tribunals could invite an applicant in writing or at a hearing to comment on or respond to relevant information.
In most cases, the applicant was invited to attend a hearing to give oral evidence and present arguments on the issues arising in the review. The applicant could ask that an interpreter be provided, and could be accompanied by a representative and/or a friend, relative or support person. The applicant could also request that the tribunal take evidence from other persons.
The hearings did not have a strict procedure; however, evidence was usually taken under oath or affirmation. The member would explain the procedures and ask questions. The applicant may or may not have chosen to make a statement. Neither the Minister nor the department were represented.
Hearings may have been held in person, or through video or telephone links. All hearings were audio recorded and the applicant could request a copy of the recording. MRT hearings were open to the public, unless this was not practical or there was a public interest reason for conducting the hearing in private. RRT hearings were not open to the public.
Hearing lists involve a group of MRT cases that have common issues being scheduled for hearings at the same session. The use of these lists continued; they allowed for a high volume of cases to be reviewed and contributed towards a reduction in overall processing times, without affecting the quality of decision making. They continued 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
A caseload management strategy for the combined MRT and RRT caseload was determined prior to the beginning of each financial year. The strategy took into consideration the applications for review on hand at the start of the year and the applications expected to be received during the year. The assignment of resources was influenced by the quantity of cases on hand in each category, projected lodgements, the availability of decision-making resources, any prioritisation required by legislation or policy and the impact of processing delays on applicants.
Cases were allocated to members on a fortnightly basis and followed a set pattern, allowing members to effectively manage their caseloads. The tribunals allocated a combination of younger and older cases in certain caseloads that helped to mitigate against potentially unmeritorious applications, while at the same time allocating finalised cases in order of age from lodgement to reduce applicant wait times.
In 2014–15 members worked in 11 teams, each led by a senior member, an increase of one team from 2013–14 that allowed the tribunals to address a large backlog of protection cases. Member teams in Sydney comprised four specialist protection teams (including one team with a student focus), one specialist family and partner team and one business, skilled and visitor team. Member teams in Melbourne comprised a combined protection and student team, a partner and family team and a business, skilled and visitor team. Member teams in Brisbane, Adelaide and Perth consisted of members who individually specialised in particular categories of cases.
Senior members acted as practice leaders in their team’s area of specialisation and were responsible for managing their teams to achieve caseload targets. Their role included 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.
Information available to assist applicants
The tribunals provided information to applicants about procedures and processes throughout a review, and published a wide range of information that can assist applicants, or those assisting applicants, to engage effectively in the review process. Information that was available on the tribunals’ website included:
- 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
- the tribunals’ service charter
- a daily schedule for tribunal hearings
- a list of questions commonly asked by applicants and representatives.
Tribunal decisions of particular interest were published on the Australasian Legal Information Institute (AustLII) website at www.austlii.edu.au. The tribunals published a quarterly bulletin, Précis, which summarised selected tribunal decisions and court judgments.
Decisions
The Migration Amendment (Protection and Other Measures) Act 2015 introduced a number of provisions, including the option for members to issue oral decisions and reasons without providing a written statement of reasons. However, in many cases the member either allowed time for further documents to be lodged or needed more time to consider the case.
In most cases (except where a case was withdrawn or where the tribunals were notified of the applicant’s death), a written statement of decision and reasons was prepared and provided to the applicant and the department.
Vision, purpose and values
The tribunals provided an independent and final merits review of decisions. The review was required to be fair, just, economical, informal and quick. We sought to treat all those with whom we dealt with courtesy, respect and dignity.
In 2014–15, 3,049 decisions were published on AustLII
The Strategic Plan 2013–16, Member Code of Conduct, service charter and Interpreters’ Handbook promoted and upheld these values. All of these documents were available on the tribunals’ website.
