Part 1-Principal Member's report

I am pleased to provide this report on the Tribunals' operations for the financial year 2007-08. The report is a key part of the accountability framework applying to the Tribunals.

I was appointed as the Principal Member of both Tribunals last September. From a personal and professional perspective, it has been an interesting, challenging and rewarding time.

My aim, following appointment, was to better understand the operations of the Tribunals and to lift our performance in several respects. I was aware that the legislation set out procedures for the conduct of reviews, that there was a high level of judicial and community scrutiny of our operations and that there were concerns expressed by some practitioners about the fairness, quality and consistency of some of our decision making. I also knew that the Tribunals had a cohort of members who were committed to the work they do in the interests of applicants and the people of Australia. It was important that I gained first hand experience of the jurisdiction by personally dealing with a range of MRT and RRT cases and that I engaged with persons within and outside the Tribunals about how the Tribunals were operating.

One of the most striking things about the Tribunals is the extent to which the review procedures are prescribed. The level of prescription was no doubt intended to ensure that the Tribunals provided reviews which were fair and just. In practice, I believe there has been too much of a focus on procedural steps rather than on the overall fairness of the process.

Not long before I was appointed, the Migration Amendment (Review Provisions) Act 2007 made amendments to the Migration Act 1958 which were designed to provide a discretion for the Tribunals to put adverse information orally to applicants at hearings and to invite responses or comment. Some may have thought these amendments to be surprising; they would have assumed that the putting of adverse material to applicants at hearings was sufficient. However, the amendments were made following a series of court judgments which found that the prescriptive code in the Migration Act required that an invitation to comment or respond to adverse information had to be made in writing and that merely to have put such information orally at a hearing would result in the Tribunal decision being overturned. In a number of these judgments it was recognised that the applicant had been given what would otherwise be regarded as an appropriate and fair opportunity to comment or respond to adverse information, and that no practical injustice had occurred.

More recently there have been problematic court decisions in relation to the Tribunals' seeking information from applicants and third parties. The Tribunals may obtain 'information' by whatever method is considered appropriate but can only obtain 'additional information' by making a request in writing which is sent to an address provided for the purposes of the review and for which there is a prescribed period for a response. If any information so obtained is adverse to the applicant, the Tribunals will put the information to the applicant and give him or her an opportunity to respond. That opportunity was given in the cases the subject of the court decisions in question. However, the mandatory nature of the obligations under the code resulted in findings that the Tribunal's processes had miscarried for not seeking the additional information in writing.

These decisions will potentially have a significant impact on the timeliness of reviews and I have drawn the Department's attention to legislative measures which I believe are necessary to ameliorate the position.

I am pleased that the Minister has recently stated in the Parliament that he believes there is a case for a major overhaul of the Migration Act.

In the meantime, the Tribunals strive to comply with the legislation as it stands and as it has been interpreted by the courts. We also seek to ensure that we make fair and just decisions. During the year I issued a new Principal Member Direction on the Conduct of hearings, and a policy guideline Guiding principles for quality decision making. These documents seek to strengthen the conduct of reviews by the Tribunals. The documents are publicly available on the Tribunals' website.

The new Government has made changes to immigration detention arrangements, abolished temporary protection visas and made changes to selection arrangements for Member and Senior Member appointments to the Tribunals. The Government also introduced a Bill to make changes to the legislative framework relating to the Tribunals, including the establishment of an office of Deputy Principal Member for the MRT, and the removal of the provisions relating to the handing down of Tribunal decisions.

The Tribunals completed 5,219 MRT reviews and 2,318 RRT reviews during the year. The numbers were fewer than in 2006-07, reflecting a reduction in RRT lodgements, an increase in the complexity of reviews, the loss of a number of experienced Members from the end of June 2007 and the time taken for an intake of new Members to become familiar with the Tribunals' work.

While the number of decisions increased substantially in the second half of the year, further Member resources are required to improve the level of compliance with the statutory 90 day time limit for RRT reviews and to deal with the growth in MRT cases. Both the number of MRT cases lodged and the number of MRT cases on hand increased over the year. With some changes I have made to case allocation arrangements, I am hopeful that the MRT on hand caseload will decline in 2008-09. However, resources are an issue. I have raised with the Government the need for an increase in the number of Members and in the proportion of Members who are appointed on a full-time basis.

I thank Members and staff for the commitment to their work which they have demonstrated over the year.
I also thank them for making me feel so welcome as the new Principal Member.

Denis O'Brien
Principal Member