Chapter 5: Immigration Assessment Authority

The Immigration Assessment Authority is established under the Migration Act as a separate office within the AAT’s Migration and Refugee Division. It commenced operations in October 2015.

Role and function

The role of the IAA is to conduct reviews of fast track reviewable decisions. These are decisions, generally made by delegates of the Minister administering the Migration Act, to refuse to grant a protection visa to a fast track applicant. Fast track applicants are unauthorised maritime arrivals who entered Australia between 13 August 2012 and 31 December 2013 who have not been taken to an offshore processing country and have been permitted by the Minister to make a protection visa application. Fast track applicants are also other persons specified by the Minister by instrument.

The IAA’s objective is set out in section 473FA of the Migration Act. In carrying out its functions, the Authority must provide a mechanism of limited review that is efficient, quick, free of bias and consistent with the procedural requirements set out in the Migration Act. The IAA is independent of the Minister and the Department of Home Affairs.

Structure of the IAA

The IAA consists of the President of the AAT, the Division Head of the Migration and Refugee Division, the Senior Reviewer and the Reviewers.

The President and the Division Head are responsible for the overall operation and administration of the IAA. The Senior Reviewer is responsible for managing the IAA, subject to the directions of, and in accordance with policies determined by, the President and the Division Head. The Senior Reviewer must be a Senior Executive Service employee and the Reviewers must also be engaged under the Public Service Act. At 30 June 2018, Ms Sobet Haddad was the Senior Reviewer and there were 32 Reviewers.

For the purposes of the Public Governance, Performance and Accountability Act and the Public Service Act, the IAA is considered to be part of the AAT.

Figure 2.1 in Chapter 2 illustrates the organisational structure of the AAT, including the IAA. More information about IAA staffing is available in Appendix 2.

Steps in a review

The Department automatically refers fast track reviewable decisions to the IAA unless the applicant is an excluded fast track review applicant. Referrals are electronic and contain the decision-maker’s statement of reasons for the decision. The Department must also give the IAA any material provided by the referred applicant to the decision-maker before the decision was made and any other material considered by the Department to be relevant to the review.

In the majority of cases, the IAA reviews the decision on the papers. While the IAA has no duty to do so, it can get, request or accept any new information that was not before the Department, but may only consider it in exceptional circumstances. The IAA may request new information be given to it in writing or at an interview. The IAA does not conduct hearings. The President has issued a practice direction applying to procedures in the IAA to assist in the efficient conduct of reviews.

The IAA can:

  • affirm the fast-track reviewable decision to refuse the referred applicant a protection visa, or
  • remit the matter to the Department for reconsideration with directions, including that the referred applicant is a refugee within the meaning of subsection 5(1) of the Migration Act.

Structure of the IAA

The IAA consists of the President of the AAT, the Division Head of the Migration and Refugee Division, the Senior Reviewer and the Reviewers.

The President and the Division Head are responsible for the overall operation and administration of the IAA. The Senior Reviewer is responsible for managing the IAA, subject to the directions of, and in accordance with policies determined by, the President and the Division Head. The Senior Reviewer must be a Senior Executive Service employee and the Reviewers must also be engaged under the Public Service Act. At 30 June 2017,
Ms Sobet Haddad was the Senior Reviewer and there were 24 Reviewers.

For the purposes of the Public Governance, Performance and Accountability Act and the Public Service Act, the IAA is considered to be part of the AAT.

Figure 2.1 in Chapter 2 illustrates the organisational structure of the AAT, including the IAA. More information about IAA staffing is available in Appendix 2.

Steps in a review

The Department automatically refers fast track reviewable decisions to the IAA unless the applicant is an excluded fast track review applicant.

Referrals are electronic and contain the decision-maker’s statement of reasons for the decision. The Department must also give the IAA any material provided by the referred applicant to the decision-maker before the decision was made and any other material considered by the Department to be relevant to the review. In the majority of cases, the IAA reviews the decision on the papers. While the IAA has no duty to do so, it can get, request or accept any new information that was not before the Department, but may only consider it in exceptional circumstances. The IAA may request new information be given to it in writing or at an interview. The IAA does not conduct hearings. The President has issued a practice direction applying to procedures in the IAA to assist in the efficient conduct of reviews.

The IAA can:

  • affirm the fast track reviewable decision to refuse the referred applicant a protection visa, or
  • remit the matter to the Department for reconsideration with directions, including that the referred applicant is a refugee within the meaning of subsection 5(1) of the Migration Act.

Performance

Caseload information

As shown in Table 5.1, the number of referrals to the IAA was marginally lower in 2017–18 than in 2016–17. The IAA received an average of 185 referrals per month in 2017–18.

The top five countries of reference of referred applicants in 2017–18 were Sri Lanka, Iran, Vietnam, Afghanistan and Iraq. Chart 5.2 shows the number and proportion of referrals made for these five and all other countries.

Table 5.1 IAA caseload overview, 2015–16 to 2017–18
REFERRALS FINALISATIONS ON HAND AT
YEAR END
MEDIAN TIME TO FINALISE (WEEKS)
2015–16a 264 130 134 5
2016–17 2,664 1,604 1,194 11
2017–18 2,223 2,481 936 28

a The IAA commenced operations in October 2015.

 

Chart 5.2 IAA referrals by country of reference, 2017–18
Pie chart showing referrals to the Immigration Assessment Authority by country of reference in 2017–18. 
The country of origin categories are ‘Sri Lanka’, ‘Iran’, ‘Vietnam’, ‘Afghanistan’, ‘Iraq’, and ‘Other’.

The IAA finalised 2,481 cases in 2017–18, 55 per cent more than the number finalised in 2016–17. The significant increase in finalisations resulted in a 22 per cent decrease in the number of on-hand cases as at 30 June 2018 compared with the end of the previous reporting year. The median number of weeks from referral to decision for the reporting period was 28 weeks.

The IAA affirmed the decision under review in 2,217 cases. The decision was remitted to the Department for reconsideration in 238 cases. Twenty-six cases were finalised on the basis that they were referred to the IAA in error. Table 5.3 shows the outcomes for cases finalised in 2015–16, 2016–17 and 2017–18.

Table 5.3 Outcomes of IAA reviews, 2015–16 to 2017–18
DECISION AFFIRMED DECISION REMITTED OTHERa
No % of total No % of total No % of total
2015–16 94 72% 36 28% 0 N/A
2016–17 1,333 83% 261 16% 10 <1%
2017–18 2,217 89% 238 10% 26 1%

a Cases referred to the IAA in error.

Appeals

An applicant or the Minister may seek judicial review of decisions made by the IAA under Part 8 of the Migration Act. Applications must be made to the Federal Circuit Court and decisions may be subject to further appeal. As shown in Table 5.4, a significant proportion of IAA decisions are subject to judicial review. In the period to 30 June 2018, all initial applications have been lodged by applicants who did not receive a favourable decision.

During the reporting year, the Federal Circuit Court finalised 462 judicial review applications. In 88 of those applications (19 per cent), the case was remitted to the IAA: 62 by consent and 26 by judgment. There have been 234 further appeals lodged, including 198 to the Federal Court and 36 to the High Court. Of these appeals, four were Minister’s appeals and the remaining 230 were by applicants appealing a decision to dismiss the judicial review application.

Table 5.4 shows the outcomes of judicial review applications that have been finally determined in the last three financial years. As at 30 June 2018, a total of 2,653 applications remain unresolved, including appeals against decisions of the Federal Circuit Court.

Table 5.4 IAA court appeals lodged and finalised, 2015–16 to 2017–18
COURT APPEALS LODGED COURT APPEALS FINALISEDc
Lodgeda Proportion of total IAA decisionsb Allowed Dismissed or Discontinued Total appeals finalised
No % No No No
2015–16 46 35.4% 1 0 1
2016–17 1,056 65.8% 19 34 53
2017–18 1,933 77.9% 100 228 328
TOTAL 3,035 72.0% 120 262 382

a These figures include some appeals lodged in relation to decisions made in a previous year.

b This figure represents the number of appeals lodged in each period as a proportion of all IAA decisions made in that reporting year that could have been appealed to the courts.

c Where a decision of a judge of the Federal Circuit Court, a single judge of the Federal Court or the Full Court of the Federal Court has been appealed, only the ultimate result is counted for the purpose of these statistics.

Significant court decision

Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16

In this case, the High Court considered for the first time the legislative provisions relating to the IAA’s review process. The applicant sought to have the decisions of both the Minister’s delegate and the IAA quashed on the basis that the delegate did not invite him to comment on certain information and thereby failed to comply with the procedural fairness obligations set out in the code of procedure in the Migration Act. Following referral to the IAA, the applicant requested that the IAA interview him and other persons, and submitted further documents responding to the information obtained by the delegate. The IAA was satisfied it could take one of the further documents into account but declined to conduct interviews as it considered he had been given an opportunity to present his claims and respond to relevant issues.

The High Court held that the delegate’s decision was a ‘fast track reviewable decision’ regardless of whether there was compliance with the code of procedure. The IAA’s task was to consider the application afresh and determine for itself whether or not it was satisfied that the criteria for the grant of the visa were met. The High Court did observe, however, that where a delegate fails to put information in accordance with the code of procedure, the IAA may need to consider exercising its discretion to invite the applicant to give new information in response to the relevant information. In this case, the delegate did not fail to comply with the code of procedure in respect of the particular information and so the issue did not arise. The High Court also held that the IAA had not acted unreasonably in deciding not to conduct interviews.

Complaints

During 2017–18, the IAA did not receive any complaints.

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