1/06/2018

The Administrative Appeals Tribunal (AAT) issues further corrections to address inaccurate media reporting.

In 2015, Mr Mustafa Kunduraci pleaded guilty to the 2013 murders of Ms Korinne Aylward and Mr Gregory Tucker and was sentenced to 35 years imprisonment by the Supreme Court of Victoria. The AAT extends its sympathy to Ms Aylward’s and Mr Tucker’s family and friends. We also respect their right to comment.

Recent media commentary appears to connect the AAT with the 2013 crimes of Mr Kunduraci through decisions made by the former Immigration Review Tribunal (IRT) in 1996 and the former Migration Review Tribunal (MRT) in 2007.

Published decision records for both of these matters are available online. A summary of the facts was provided to media outlets who sought information from the AAT about the background to these matters.

In neither case before the tribunals was criminal conduct or character a basis upon which the visa was refused by the then Department of Immigration (the Department).

Below is a chronology of relevant facts:

  • 1996 – A published decision record shows the former IRT set aside a decision to refuse a three month visitor visa.
  • 1996 to 2006 – Mr Kunduraci applied for, and was granted, a separate visa (or visas) by the then Department of Immigration.
  • 2007 – A published decision record shows the former MRT remitted a partner visa application to the then Department for reconsideration. The Department originally refused the application because Mr Kunduraci had not been the spouse of his sponsor for two years. However, the visa could also be granted if an applicant and their sponsoring spouse had obligations concerning custody, contact or access of a child. Mr Kunduraci produced new evidence about a child of the relationship including a birth certificate and Family Court orders relating to the child.
  • 2007 to 2013 – In order to legally remain in Australia, Mr Kunduraci needed to hold a visa issued by the Department. There was no further application made to review any decisions related to Kunduraci and the Tribunal had no further involvement.
  • 2013 – Mr Kunduraci was charged with two counts of murder.
  • 2015 – Mr Kunduraci was sentenced to 35 years’ imprisonment for two counts of murder.

Facts about the AAT requiring correction

  1. Inaccurate reports that the AAT set aside more decisions than it affirmed

“Affirmed” means that the AAT upheld the original decision made by the Department of Home Affairs (previously known as the Department of Immigration).

It has been reported that the AAT was “overruling” more visa decisions by delegates of the Home Affairs Minister than it was “upholding”. This is incorrect; the AAT affirmed more of these decisions than it set aside. Reliance appears to have been placed on unrelated and incorrect statistics to report on AAT decisions on visa cancellations and refusals on character grounds.

The AAT first issued a statement to address these inaccuracies in April 2018.

  1. Inaccurate reports that members of the AAT are public servants who can overrule ministerial decisions

AAT decisions are made by independent statutory officers known as members, not public servants who are engaged under the Public Service Act 1999. The Governor-General appoints all AAT members upon the recommendation of Government. Information about member appointments is available on the AAT website.

Members do not have the power to review decisions made personally by the Minister where it relates to a visa cancellation or refusal. The Minister may appeal to the courts where they disagree with a decision made by the AAT. The Minister also has the power to personally substitute a decision made by the AAT.

  1. Inaccurate reports that an inquiry has been launched into the AAT

Information about current parliamentary inquiries is published on the Parliament of Australia website. There is an inquiry by the Joint Standing Committee on Migration to review processes associated with visa cancellations made on criminal grounds and the AAT has made a submission to this inquiry.

Background

The AAT provides people with the opportunity for independent review of decisions made under more than 400 Commonwealth Acts, including matters relating to taxation, social security, the NDIS, workers’ compensation and veterans’ appeals.

The AAT is required to consider additional information that may not have been before the original decision maker and conducts hearings to test evidence.

The AAT does not set targets on its “affirm” or “set aside” rates. The AAT considers every matter on its merits and measures the quality of its decisions by the yearly appeal rate. 

As outlined in a recent opening statement to a Budget Estimates Hearing, the role of the AAT is to apply the law enacted by the Federal Parliament, including relevant ministerial directions.

The review of decisions to refuse or cancel a visa on character grounds is a small component of the broad range of decisions about visas reviewed by the AAT, and an even smaller component of the overall caseload managed by the AAT.

To put these matters in context, in 2016–17, the AAT finalised 42,224 reviews. Of these, 168 decisions (or less than 0.4 per cent) related to visa cancellations and refusals on character grounds.

Media contact: 02 9276 5461 or media@aat.gov.au