Part 4-Performance report

• Performance framework
• Financial performance
• Overview of caseload
• Lodgements
• Cases on hand
• Conduct of reviews
• Cases decided
• Outcomes of review
• Timeliness
• Judicial review
• Social justice and equity
• Complaints
• Community and interagency liaison
• Major reviews
• Significant changes in the nature of functions or services
• Developments since the end of the year

This Part provides a detailed picture of the operations of the Tribunals over 2007-08.

The Tribunals continued to contribute to Australia's migration and refugee determination programs during the year through the provision of quality and timely reviews of decisions. The Tribunals completed 7,537 reviews, making decisions favourable to applicants in 40% of the cases resolved.

Performance framework

The Migration Review Tribunal (MRT) and the Refugee Review Tribunal (RRT) provide an independent merits review of decisions made in relation to visas to travel to, enter or stay in Australia. The Tribunals are established under the Migration Act 1958 and the Tribunals' jurisdictions and powers are set out in the Migration Act and in the Migration Regulations 1994. 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.

There is a Statement of Expectations and a Statement of Intent, and the Tribunals' funding and performance expectations are set out annually in portfolio budget statements. During 2007-08, the Tribunals had one outcome:

To provide visa applicants and sponsors with fair, just, economical, informal and quick reviews of migration and refugee decisions.

Table 4.1 summarises the Tribunals' performance against the indicators and measures that were set out in the 2007-08 portfolio additional estimates statements.

Table 4.1 - Performance information and results

Financial performance

The MRT and the RRT are prescribed as a single agency, the 'Migration Review Tribunal and Refugee Review Tribunal' (the MRT-RRT) for the purposes of the Financial Management and Accountability Act 1997
(the FMA Act).

The Tribunals' funding is based on a funding agreement with the Department of Finance and Deregulation which takes into account the number of cases decided and an assessment of fixed and variable costs. The Tribunals were funded to decide 8,100 MRT cases and 3,050 RRT cases in 2007-08. The Tribunals decided 5,219 MRT cases and 2,318 RRT cases, and the Tribunals' revenue as set out below takes into account an adjustment to appropriation based on the number of cases decided.

The Tribunals' revenue from ordinary activities totalled $37.9m and expenditure totalled $40.4m, resulting in a net loss of $2.5m.

Table 4.2 sets out the budgeted and actual costs to Government in 2007-08, and the budgeted costs for 2008-09.

Table 4.2 - Price of outputs

* Actual as at 30 June, includes Members and staff.

The Tribunals administer application fees on behalf of Government. For the MRT, an application fee of $1,400 is payable at lodgement for most applications for review. The fee is refunded if the MRT makes a decision favourable to the applicant. For the RRT, a post-decision fee of $1,400 is payable if the Tribunal affirms the decision under review. Details of administered revenue are set out in the financial statements.

The financial statements for 2007-08, which are set out in Part 6, have been audited by the Australian National Audit Office and received an unqualified audit opinion.

Overview of caseload

The Tribunals received 8,609 cases during the year, and decided 7,537 cases.

The MRT received 6,325 cases, decided 5,219 cases and had 4,640 active cases at the end of the year.

The RRT received 2,284 cases, decided 2,318 cases and had 548 active cases at the end of the year.

Table 4.3 sets out the number of cases lodged and decided over the last 3 years, and the number of cases on hand at the end of each year.

Table 4.3 - Overview of caseload

The trends in lodgements, cases decided and cases on hand are shown by quarters in Figure 4.1.

Figure 4.1 - Lodgements, decisions and cases on hand

Lodgements

The MRT has jurisdiction to review a wide range of visa, sponsorship and other decisions relating to migration and temporary entry visas. The Department deals with very large numbers of migration and temporary entry visa applications (approximately 100,000 partner and family visa applications, 150,000 temporary residence visa applications, 300,000 student visa applications and 3 million visitor visa applications in a year). In the majority of cases, the visa applicant is granted a visa. For those cases where a visa is not granted, there is a right of review to the MRT if the visa applicant is within Australia, or if there is an Australian sponsor or nominator where the visa applicant is outside Australia.

The RRT has jurisdiction to review protection (refugee) visa decisions made within Australia. The Department deals with around 4,000 protection visa applications each year. All protection visa applicants have a right of review if a protection visa is not granted.

Lodgements of applications for review have fluctuated between years, affected by changes and trends in primary applications and in primary decision making, as well as changes to visa criteria and review rights. Table 4.4 sets out the number and types of cases lodged with each Tribunal, with MRT cases categorised by the type of decision under review, and RRT cases categorised by country of reference.

Table 4.4 - Lodgements

For the MRT, lodgements were 9% higher than the previous year. There were proportionally fewer partner, family and student cancellation lodgements, and an increased proportion of visitor, skilled, temporary business, permanent business and student refusal lodgements. Figure 4.2 shows the MRT lodgements across case categories in 2008-09.

Figure 4.2 - MRT lodgements by case type

About 60% of MRT lodgements related to persons in Australia seeking a further visa or the review of a decision to cancel a visa. The MRT's jurisdiction in relation to visas applied for outside Australia depends on whether there is a requirement for an Australian sponsor or close relative, and these cases are mainly in the skilled, visitor, partner and family categories.

For the RRT, lodgements were 19% lower than the previous year. While over 55% of the RRT's lodgements involved cases from just 3 countries, the People's Republic of China, India and Indonesia, there were lodgements from 100 countries in total. Compared to lodgements in 2006-07, the Republic of Korea replaced the Philippines in the list of top ten countries. Figure 4.3 shows the RRT lodgements by country of reference (the country to which the applicant is seeking not to return).

Figure 4.3 - RRT lodgements by country of reference

Applicants to both Tribunals tend to be located in the larger metropolitan areas. 56% of all applicants resided in New South Wales, mostly in the Sydney region. Approximately 25% of applicants reside in Victoria, 7% in Queensland, 7% in Western Australia, 3% in South Australia, 1% in the Australian Capital Territory and Northern Territory and less than 1% in Tasmania.

Detention cases comprised less than 5% of the cases lodged with the Tribunals. Most of the non-citizens with whom the Tribunals deal hold a bridging visa or other visa during the course of the review.

Cases on hand

The number of MRT cases on hand increased over the year, while the number of RRT cases on hand fell to a record level. There was an increase in MRT lodgements which the Tribunals are seeking to address through the allocation of additional Member resources to the MRT caseload.

Table 4.5 sets out the number of cases on hand as at 30 June over the last 3 years.

Table 4.5 - Cases on hand

Figure 4.4 indicates the number and average age of cases at the end of each of the last 3 years.

Figure 4.4 - Number and age of cases on hand

Conduct of reviews

The Tribunals are usually constituted by a single Member. The Member usually has carriage of the case from the time the Member is allocated the case until a decision is made. The Member must ensure the review is fair and just, and that the applicant is given the opportunity to fully put his or her case, and to respond to any information which may lead to an adverse decision.

Unless a favourable decision can be made on the papers, an applicant must be invited to a hearing.
The applicant may arrange for other persons to attend the hearing to give evidence and may be accompanied to the hearing by a representative or a support person.

Applicants appointed a representative to assist or represent them in 68% of MRT cases decided and in 45% of RRT cases decided. In more than 90% of cases, the representative was a registered migration agent. Those cases where a representative is appointed have higher set aside rates. For the MRT, the set aside rate in represented cases was 54%, compared to an average set aside of 50%. For the RRT, the set aside rate in represented cases was 31%, compared to an average set aside of 18%.

Hearings were arranged in 3,685 or in 71% of the 5,219 MRT cases decided, and were held in 3,176 of these cases. Hearings were arranged in 2,070 or in 89% of the 2,318 RRT cases decided, and were held in 1,627 of these cases. Hearings did not proceed where applicants declined or did not respond to the invitation to appear, in cases where the application was withdrawn prior to the hearing date, and in cases where a decision favourable to the applicant was made prior to the hearing date. Hearings were held using video facilities in 14% of hearings.

Interpreters were used in 68% of MRT hearings and 89% of RRT hearings, with more than 80 languages and dialects used.

Amendments to the Migration Act which applied to applications for review lodged on or after 29 June 2007 permitted Members to put adverse information orally to an applicant at a hearing without being required to also put that information in writing to the applicant after the hearing. The Migration Act requires that Members provide clear particulars of the information, and advise the applicant that he or she may request additional time to comment or respond. Requests for additional time were made in 19% of MRT hearings and in 24% of RRT hearings, with more than 90% of requests granted. Written requests for information or to comment or respond to information continued to be used - in 40% of MRT cases and in 26% of RRT cases.

Cases decided

The MRT decided 5,219 cases over the year, and the RRT decided 2,318 cases. Table 4.6 sets out the number of cases decided over the last 3 years, by case category for MRT cases, and by country for RRT cases.

Table 4.6 - Cases decided

The Tribunals are required to provide a written statement of decision and reasons in each case. These statements give both the applicant and the Department a clear understanding of the basis of a decision.

Outcomes of review

The MRT set aside or remitted the primary decision in 50% of cases decided and affirmed the primary decision in 36% of cases decided. The remaining 14% of cases were either withdrawn by the applicant or were cases where the Tribunal decided it had no jurisdiction to conduct the review.

The RRT set aside or remitted the primary decision in 18% of cases decided and affirmed the primary decision in 72% of cases decided. The remaining 10% of cases were either withdrawn by the applicant or were cases where the Tribunal decided it had no jurisdiction to conduct the review.

Table 4.7 sets out the decisions made by the Tribunals over the last 3 years.

Table 4.7 - Outcomes of review

* No jurisdiction decisions include applications not made within the prescribed time limit. The Tribunals' procedures provide for an applicant to be given an opportunity to comment on any jurisdiction issue before a decision is made. Some cases raise complex questions as to whether a matter is reviewable and whether a person has been properly notified of a decision and of review rights.

The primary migration caseload is characterised by very high volumes and high visa grant rates, with decisions made in a large number of locations in Australia and at overseas posts.

The fact that a decision is set aside by the MRT is not necessarily a reflection on the quality of the primary decision, which may have been a sound decision at the time of the decision. The Department deals with a very large volume of cases and most are decided favourably. Where an unfavourable decision is made, the applicant is provided with written reasons for the decision, and advised of appeal rights.

Applicants who apply to the MRT typically respond to the concerns of the primary decision maker by providing submissions and further evidence to the Tribunal. By the time of the Tribunal's decision, there is often considerable further information before the Tribunal. There may also have been court judgments or legislative changes which affect the outcome of the case.

The primary refugee caseload is characterised by relatively small volumes and a strong interest by visa applicants to pursue all avenues of appeal. Although the Department invests very significant resources into primary decision making in refugee cases, more than 90 percent of persons refused a protection visa apply to the RRT.

A RRT review typically involves a thorough reassessment of the applicant's claims and evidence, and of any developments in relation to country circumstances. Higher RRT set aside rates have usually reflected a change in country circumstances, as was the case in relation to Nepal during 2007-08, with the RRT setting aside 47% of the decisions reviewed.

Table 4.8 shows set aside rates across case categories and countries.

Table 4.8 - Set aside rates

Timeliness

The Tribunals aim for a speedy resolution of cases consistently with conducting a thorough review and making quality decisions. Members actively manage their caseloads from the time of allocation until decision. Members are expected to quickly identify the relevant issues in a review and the necessary courses of action to enable the review to be conducted as effectively and efficiently as possible.

The time it takes to decide a case has a considerable impact on the persons involved. Applicants may be in immigration detention or separated from their family or partner, and employers may not be able to fill positions or expand their business. In many cases, it is difficult for the persons involved to make any settled plans until their status is resolved.

On the other hand, some applicants seek to use the review process to prolong their stay in Australia. Both the MRT and the RRT deal with a proportion of cases where no claims are made or no action is taken to seek review of related decisions and where the applicant does not respond to letters or attend the hearing when scheduled. The Tribunals do not have power to dismiss such cases, and must make a decision on the merits of the case and provide a formal statement of decision and reasons.

The following time standards were applied by the Tribunals in 2007-08:

• Bridging visa (detention) cases - 7 working days from lodgement to decision.
• Protection visa cases - 90 calendar days from receipt of the Department's documents to decision.
• MRT visa cancellation cases - 90 calendar days from lodgement to decision.
• All other MRT cases - 250 calendar days from lodgement to decision.

Table 4.9 sets out the average time taken to decide cases, and performance against the above time standards. The number of days is taken from lodgement for MRT cases, and from receipt of the Department's documents for RRT cases, consistent with provisions of the Migration Act and Migration Regulations.

Table 4.9 - Timeliness of reviews

* Comparable figures provided for 2005-06, where applicable.

In some cases it is not possible to decide a case within the relevant time standard. These include cases where hearings need to be rescheduled because of illness or the unavailability of an interpreter, cases where the applicant requests further time to comment or respond to information, cases where new information becomes available, and cases where another body or agency is required to provide a report or an assessment.

There is still some way to go in improving MRT processing times. While the number of MRT cases on hand has been reduced from over 8,000 cases in 2002, there are still delays before cases can be allocated to a Member. During 2007-08, 57% of MRT visa cancellation cases were decided within 90 days of allocation to a Member, and 80% of all other MRT cases were decided within 200 days of allocation to a Member.

For the RRT, the Principal Member provides reports every 4 months to the Minister for Immigration and Citizenship for tabling in Parliament in relation to the operation of the 90 day period for RRT reviews.
The reports set out the reasons cases have taken more than 90 days to decide. In many cases there are several reasons. The most significant reasons in 2007-08 were providing time for applicants to respond to adverse information (69% of cases), the need to consider additional information provided by applicants after cases had been heard (30% of cases), further investigations or reports (37% of cases), and rescheduled hearings (26% of cases).

A review cannot commence until the Department's documents are provided to the Tribunals. The average time to receive the Department's documents for MRT cases was 24 days in 2007-08. This includes cases where documents needed to be provided from overseas. The average time for RRT cases was 6 days.

At the end of a review, the Tribunals have been required in most cases to invite the applicant and the Department to the handing down of the decision. In 2007-08, this process meant that most decisions were not given or sent to the applicant or the Department until 2 weeks after the decision was made. Legislation recently passed by Parliament will remove this requirement, and enable the Tribunal to directly notify the applicant and the Department of decisions without any delay.

Judicial review

Both MRT and RRT decisions are subject to judicial review by the courts. There are two avenues of judicial review available. One is to the Federal Magistrates Court for review under section 476 of the Migration Act. The other is to the High Court pursuant to paragraph 75(v) of the Commonwealth Constitution.

New applications for judicial review decreased for the MRT and the RRT compared with last year. Judicial review applications in relation to RRT decisions continued at a much higher level than those in relation to MRT decisions. As at the end of August, applications for judicial review had been filed in respect of 239 MRT decisions and 1,044 RRT decisions made during 2007-08. This comprises 4.6% of the 5,219 MRT cases decided, and 45.3% of the 2,318 RRT cases decided.

Both the applicant and the Minister for Immigration and Citizenship may seek judicial review of a Tribunal decision. Most applications for judicial review are made by applicants.

The applicant and the Minister are generally the parties to a judicial review of a Tribunal decision. Although required to be joined as a party to proceedings, the Tribunals do not take an active role in litigation. As a matter of course, the Tribunals enter a submitting appearance, consistently with the principle that an administrative tribunal should generally not be an active party in judicial proceedings challenging its decisions.

52 MRT and 58 RRT decisions were set aside and remitted for reconsideration during the year (relating to decisions made during 2007-08). The majority of these were remitted by consent, that is, by order of the court following an agreement between the parties. Table 4.10 sets the out judicial review applications and outcomes in relation to the Tribunal decisions made over the last 3 years.

Table 4.10 - Judicial review applications and outcomes

* The outcome of judicial review applications is reported on completion of all court appeals against a Tribunal decision. Previous years' figures are affected if a further court appeal is made in relation to a case previously counted as completed.

In the majority of cases decided by the courts, the Tribunal decision was not set aside. In 86% of the judicial review applications resolved in relation to RRT decisions made in 2007-08, the Tribunal decision was not set aside. The proportion for MRT decisions, at 63%, was lower. A number of student visa cases were remitted by consent following the Full Federal Court's judgment in Dai v MIAC. This judgment effectively concluded that student visa condition 8202(3)(b) (relating to satisfactory academic performance) was not valid.

If a decision is remitted by a court, the matter is returned to the MRT or the RRT for reconsideration by the Tribunal (usually constituted by a different Member). The reconstituted Tribunal is not bound by the findings of the previously constituted Tribunal and makes a fresh decision. There may be further evidence or changed circumstances to consider. In about 30% of RRT cases and 50% of MRT cases, the reconstituted Tribunal remits the application for reconsideration by the Department.

Decision making under the Migration Act remains an area where the level of court scrutiny is very intense and where the same Tribunal decision or same legal point may be upheld or overturned at successive levels of appeal.

A summary of some of the most significant judicial decisions over the year is set out below. These decisions had an impact on the Tribunals' decision making or procedures, or on the operation of judicial review in relation to Tribunal decisions.

There are restrictions on identifying applicants for protection visas, and letter codes or reference numbers are used by the courts. The Minister for Immigration and Citizenship is formally a party in most cases, and 'MIAC', 'MIMA' or 'MIMIA' is used to identify the Minister in the abbreviated citations provided:

SZFDE v MIAC & Anor [2007] HCA 35 - The applicants, Lebanese nationals, applied for protection visas claiming to fear persecution by reason of one of the applicant's published views questioning the position of women in the Islamic tradition. The RRT affirmed a decision to refuse the applicants protection visas after the applicants declined to attend a hearing before the Tribunal. The applicants claimed that they had acted on the fraudulent advice of their migration agent. In a unanimous judgment, the High Court held that fraudulent conduct by a third party that precludes a Tribunal from exercising its imperative statutory functions will constitute a fraud perpetrated on the Tribunal as well as on the applicants. In this case, the advice given by a deregistered migration agent and solicitor to the visa applicants not to attend the Tribunal hearing constituted such fraud.

SZATV v MIAC [2007] HCA 40 and SZFDV v MIAC [2007] HCA 41 - The visa applicants were a journalist from the Ukraine and a trade unionist from India. The RRT had affirmed decisions to refuse the visa applicants protection visas, finding that harm they faced was localised in one area of their home country, and that it was reasonable for them to relocate to another part of the country. The High Court upheld the principle of relocation as an element of assessing well-founded fear, but indicated that because the Refugees Convention is concerned with 'persecution' and not, for example, living standards, in assessing the reasonableness of relocation, the RRT should focus on whether the conduct or attribute of the applicant which attracts the apprehended persecution would receive different treatment in another part of the country so as to remove the basis for a well-founded fear. Whether it is reasonable or practicable to relocate to another part of the country depends upon the particular circumstances and the impact upon the person of relocation.

MIAC v SZKKC [2007] FCAFC 105 - In July 1999, the RRT made a decision refusing the visa applicant a protection visa. A copy of that decision was sent to the visa applicant's migration agent who was authorised to act on her behalf. In 2007, the visa applicant applied for judicial review of the RRT's decision. She gave evidence to the Federal Magistrates Court that she was told of the decision but not physically given a copy of the written statement of reasons until March 2007. The Full Court of the Federal Court considered the requirements and time limits for applying for judicial review in the Federal Magistrates Court under section 477 of the Migration Act. Noting the provisions which otherwise provide for decisions to be conveyed by mail or through an authorised recipient, the Court held that the time limits for applying for judicial review contained in section 477 only apply where the written statement of the Tribunal's decision has been physically delivered to the applicant personally.

SZGSI v MIAC [2007] FCAFC 110 - The visa applicants were Chinese nationals who applied for protection visas claiming the primary visa applicant had a well founded fear of persecution in China for reasons of her Christian religion. In affirming the decision to refuse the primary visa applicant the visa, the Tribunal relied upon oral evidence given by her husband, in the applicant's presence. The Full Federal Court unanimously held that section 424A of the Migration Act applies to each applicant in a combined application for review. The Tribunal was obliged under section 424A to provide particulars of the oral evidence that had been given in her presence, to the primary visa applicant, and to invite her to comment, in writing.

Dai v MIAC [2007] FCAFC 199 - The appellant was a student in hotel and tourism management. She failed to maintain a satisfactory academic performance as required by her visa conditions, and was placed on academic probation. Her education provider notified her that her enrolment had been cancelled as a result of unsatisfactory academic progress and advised the Department of Immigration and Citizenship, which cancelled her visa for breach of condition 8202. The Tribunal affirmed the decision to cancel the visa. The Full Federal Court set aside the Tribunal decision and held that condition 8202, relating to satisfactory academic performance as in force immediately prior to 1 July 2007, was not valid.

Sok v MIAC [2008] FCAFC 18 - The visa applicant applied for a partner visa on the basis of his marriage to an Australian citizen. His application for the visa was refused by a delegate of the Minister on the basis that the spousal relationship was not genuine and continuing. On review before the Tribunal, the visa applicant claimed for the first time that the relationship had broken down due to domestic violence committed against him. The Tribunal found that the relationship between the applicant and his wife had ceased and, relying on an independent expert opinion from a social worker, that the applicant had not suffered relevant domestic violence. The Full Court of the Federal Court held that a 'non-judicially determined' claim of domestic violence could only be made at the time the visa application was being considered by the Minister, and as such the legislative regime providing for the seeking of the opinion of an independent expert was not available to the Tribunal in conducting a review.

SZKTI v MIAC [2008] FCAFC 83 - The visa applicant applied for a protection visa on the basis that he feared persecution in China for reason of his religion. In support of his application, the visa applicant provided to the RRT a letter from two church elders attesting to his activities with the church in Australia. A telephone number for one of the church elders was provided, together with an invitation from the applicant to contact the elders if the RRT had any questions. A Tribunal officer telephoned the elder and questioned him about the visa applicant. The RRT then wrote to the visa applicant under section 424A of the Migration Act, seeking his comments on the additional information. The Tribunal affirmed the decision to refuse the visa. The Full Court of the Federal Court, in setting aside a judgment of the Federal Magistrates Court upholding the RRT's decision, held that if the Tribunal requires 'additional information' as distinct from 'information' to be provided by a person, it must do so under subsection 424(2), and issue a written invitation. The telephone call to the church elder meant that the RRT had made a jurisdictional error. This judgment was followed in SZKCQ v MIAC [2008] FCAFC 119 and SZLFX v MIAC [2008] FMCA 451.

SZJGV v MIAC [2008] FCAFC 105 - The visa applicant applied for a protection visa claiming to have a well founded fear of persecution in China as a result of his practice of Falun Gong in China and later in Australia. The RRT affirmed the decision not to grant the visa. It found that under subsection 91R(3) of Migration Act, the visa applicant's Falun Gong related activities in Australia were to be disregarded as it had found that they were engaged in for the purpose of strengthening his claim to protection. The Tribunal relied in part upon this conclusion to also reject the visa applicant's claim to have been a Falun Gong adherent in China. Setting aside the RRT decision, the Full Court of the Federal Court held that once the Tribunal has found it is not satisfied that a visa applicant's conduct was undertaken for a purpose other than that of enhancing his or her claim to be a refugee, such conduct cannot lawfully be brought into account to assess the remainder of the claims. The Court also held that inaction can constitute conduct within the meaning of subsection 91R(3).

MIAC v SZKPQ [2008] FCAFC 21 - The visa applicant applied for a protection visa in December 2003. A delegate of the Minister refused the application in March 2004, and the visa applicant was sent the decision on the same day. The accompanying letter sent under section 66 of the Migration Act was sent by post and the envelope addressed to his nominated “authorised recipient”. The address block on the letter, however, was that of the visa applicant. The visa applicant's application for review was lodged some three years later, and the RRT concluded that the application was not filed within the statutory time periods and was thus not valid. Overturning a decision of the Federal Magistrates Court, the Full Court of the Federal Court held that there is no basis for importing a requirement that documents given for the purposes of section 66 of the Act must contain a particular address. So long as the document is posted to the authorised recipient at the authorised recipient's address, the statutory notification requirement is met. It was irrelevant that an address other than the address of an applicant's authorised recipient was included in notification documents.

SZHKA v MIAC [2008] FCAFC 138 - The visa applicant had unsuccessfully sought a protection visa on the basis of a fear of persecution in China arising from his practice of Falun Gong. The RRT conducted a hearing and affirmed the decision, but that decision was quashed by the Federal Magistrates Court, and the matter returned to the RRT for reconsideration. On reconsideration, a differently constituted Tribunal affirmed the decision to refuse the visa without inviting the visa applicant to a further hearing. A majority of the Full Court of the Federal Court held that on remittal from the Court, a reconstituted Tribunal must invite an applicant to a further hearing.

Applicant Y v MIAC [2008] FCA 367 - The visa applicant applied for a partner visa that was refused by a delegate of the Minister because she did not meet the health criteria in Item 4007 of Schedule 4 to the Migration Regulations. The delegate had refused the visa on the basis of an opinion of the Medical Officer of the Commonwealth (the MOC) of May 2003 which concluded that the appellant did not satisfy the requirements of Item 4007 as she had been diagnosed as HIV positive, was receiving therapy and the cost of her health care would be significant. On review, the visa applicant indicated to the Tribunal that she did not wish to obtain a new MOC assessment, but provided additional reports from her own doctors that her prognosis was generally very good. In April 2005 the Tribunal affirmed the decision under review. On appeal, the Federal Court held that whilst the Tribunal was required to take the opinion of the MOC to be correct such opinion should be current at the time of the Tribunal's consideration. The Tribunal should take into account the amount of time that has elapsed since the MOC's report, and any evidence of change in the applicant's health, and if necessary, obtain a further MOC report.

Social justice and equity

The role of the Tribunals is to enable people affected by Government decisions to have access to a review process that is fair, just, economical, informal and quick. How strongly this is embedded in our culture is reflected in how we interact with our clients and stakeholders and in the outcomes of reviews.

The Tribunals' Service Charter expresses our commitment to providing a professional and courteous service to review applicants and other persons with whom we deal. It sets out general standards for client service covering day to day contact with the Tribunals, responding to correspondence, arrangements for attending hearings, the use of interpreters and the use of clear language in decisions.

Table 4.11 sets out the Tribunals' performance during the year against service standards contained in the Service Charter.

Table 4.11- Report against service standards

The Tribunals are particularly conscious that a high proportion of clients have a language other than English as their first language. Clear language in letters and forms and the availability of staff to assist applicants are important to ensuring that applicants understand their rights and our procedures and processes. Interpreters are used extensively, being present in more than 68% of MRT hearings and 89% of RRT hearings. The Tribunals' Interpreters Working Group reports to the Joint Management Board on the Tribunals' use of interpreters and training for Members and staff in the use of interpreters.

The Service Charter is available on the Tribunals' website, along with the Tribunals' Plan, the Member Code of Conduct, the Interpreters' Handbook and Principal Member Directions relating to the conduct of reviews.

The Tribunals' website is a significant information resource for applicants and others interested in the work of the Tribunals. The publications and forms available on the website are regularly reviewed to ensure that information and advice are up-to-date and readily understood by clients.

The Tribunals have offices in Sydney and Melbourne which are open between 9.00am and 4.30pm on working days. There is an arrangement with the Administrative Appeals Tribunal (the AAT) for documents to be lodged and for hearings to be held at AAT offices in Brisbane, Adelaide and Perth. Our offices are wheelchair accessible and hearing loops are available in hearing rooms. The Tribunals also have a national enquiry number - 1300 361 969 - available from anywhere in Australia (calls are charged at the cost of a local call - not available from mobile telephones). Persons who need the assistance of an interpreter can contact the Translating and Interpreting Service (TIS) on 131 450 for the cost of a local call.

The Tribunals have a Disability Action Plan and Workplace Diversity Program. Further information about these strategies and plans is in Part 5.

Complaints

As mentioned above, the Tribunals' Service Charter sets out the standards of service that clients can expect. It also sets out how clients can comment on or complain about the services provided by the Tribunals.

On 1 July 2008 the Tribunals issued more comprehensive guidance on complaints handling to Members and staff, thereby fulfilling a recommendation of the ANAO Audit Report No. 44 2006-07.

A person who is dissatisfied with how we have dealt with a matter or with the standard of service they have received, and who has not been able to resolve this by contacting the office or the officer dealing with their case, can forward a written complaint marked 'confidential' to the Complaints Officer. A complaints and compliments page is on the Tribunals' website.

The Tribunals will acknowledge receipt of a complaint within 5 working days. A Senior Member or officer will investigate the complaint and the Tribunals aim to provide a written response to the complaint within 20 working days of receipt of the complaint.

The Tribunals investigated and provided a written response to 28 complaints during the year, 19 in relation to MRT cases and 9 in relation to RRT cases. 100% of complaints were responded to within 20 working days. Table 4.12 sets out the number of complaints finalised over the last 3 years.

TABLE 4.12 - Complaints

The majority of complaints related to the conduct of the review process, while smaller numbers were about the timeliness of the review, or the decisions made or requested the case be constituted to another Member. The Tribunals considered that 21% of the complaints made during the year related to matters that could have been handled more appropriately. The Tribunals have responded to specific issues through changes to procedures and through training and development activities. The Tribunals' complaints policy provides that management and Members will receive systematic feedback on complaints in order to further improve service to clients.

The Commonwealth Ombudsman resolved 28 complaints and made 2 findings of administrative deficiency against the Tribunals during 2007-08 (see Table 4.13).

TABLE 4.13 - Complaints to the Commonwealth Ombudsman

Over 62% of applicants had a person acting as their representative during the review. With limited exceptions, a person acting as a representative is required to be a registered migration agent. Registered migration agents are covered by a Code of Conduct and are required to conduct themselves in accordance with the code. The Migration Agents Registration Authority (MARA) is responsible for the registration of migration agents, monitoring the conduct of registered migration agents, and investigating complaints about, and taking appropriate disciplinary action against registered migration agents who breach the Code of Conduct or otherwise behave in an unprofessional or unethical way. The Tribunals referred 4 matters to MARA during 2007-08 relating to the conduct of migration agents.

Community and interagency liaison

The Tribunals hold regular community liaison meetings to provide a forum for the Tribunals to meet, exchange information and consult with interested stakeholders. Representatives who attend the meetings are from migration and refugee advocacy groups, migration agents associations, human rights bodies and other government agencies.

The aim of the meetings is to facilitate the distribution and exchange of information in relation to the Tribunals' procedures and caseloads, to provide participants with updates on relevant developments and to consult with them regarding these matters.

The Tribunals place great importance on maintaining regular contact with key stakeholders in migration, refugee and advocate organisations. During the year the Tribunals met and consulted with senior representatives from a number of peak bodies, including the UNHCR Regional Office for Australia, New Zealand, Papua New Guinea and the South Pacific and Amnesty International Australia. The NSW District Registrar delivered presentations at continuing professional development seminars conducted by the Migration Institute of Australia (MIA) in Sydney, and the Principal Member presented a paper on effective advocacy at the MIA's Immigration Law Conference, and the Migration Law CPD Intensive sessions. A Member of the Tribunals delivered a lecture in the Migration and Refugee Law Unit for the LLB students at Deakin University on the topic of Convention Grounds and Persecution. Members also presented sessions at the University of NSW and Macquarie University.

The Tribunals also hold regular high level and local liaison meetings with DIAC to discuss policy, operational and general business issues. There is also ongoing operational contact between the agencies. A joint Memorandum of Understanding (MOU) with DIAC reflects the statutory and operational relationships between the agencies. The MOU, which is under review, is available on the Tribunals' website.

In May 2008, the Minister for Immigration and Citizenship, Senator Chris Evans, visited the Tribunals' Principal and NSW Registries and met with the senior leadership team of the Tribunals.

Reflecting the value the Tribunals place on networking with like organisations, Members and senior officers of the Tribunals continued an active participation in several bodies concerned with the operations of tribunals, including the national and state chapters of the Council of Australasian Tribunals, the Australasian Institute of Judicial Administration (AIJA), the Australian Institute of Administrative Law (AIAL) and the International Association of Refugee Law Judges (IARLJ).

Commensurate with the high regard in which the Tribunals are held there have been numerous requests for briefings by the Tribunals and information from the Tribunals over the last year. For example, in May 2008 the Tribunals hosted a visit by a Japanese judge from the Yokohama Court and a Japanese Professor from the Graduate School of Law, Kyoto University. In December 2007, the Tribunals briefed a visiting member of the Immigration Law Committee of the UK Law Society. The Assistant Secretary Onshore Protection Branch, DIAC and Assistant Secretary, Review Coordination Branch, DIAC spent several days observing the Tribunals' operations during January and March 2008.

The Tribunals value and benefit from interacting and exchanging information and ideas with colleagues, academics and researchers. Ten Members attended the International Conference on Best Practices for Refugee Status Determination: Principles and Standards for State Responsibility in Prato, Italy, during May 2008. Five Members including the Principal Member delivered papers at the Conference. The purpose of this conference was to bring together practitioners, academics, decision makers and policy makers from common law and civil law jurisdictions, to consider the question of 'best practices' for refugee status determination in the current global asylum context.

The Principal Member and a number of Members and staff attended the 11th Annual AIJA Tribunals Conference in June 2008 where the Principal Member delivered a paper on the subject of Issues for Merits Review Tribunals: Perspectives from the MRT and the RRT.

Kristen Walker, a barrister and former Associate Professor at the University of Melbourne and Jamie Gardiner, a Member of the Victorian Equal Opportunity and Human Rights Commission visited the Tribunals and conducted seminars with Members in Melbourne and Sydney on sexuality and refugee status. In February 2008, a Uyghur delegation, comprising a Nobel Peace Prize Nominee, Mrs Rebiya Kadeer of the World Uyghur Congress, Dolkun Isa (General Secretary), Alim Seytoff (Chairman), Omer Kanat from the World Uyghur Congress Association and Graham Thom, Amnesty International's Refugee Coordinator, provided a briefing to Sydney Members on human rights in Xinjiang Province in western China. During March 2008, Paul White, former RRT Member and Senior United Nations Protection Officer, visited the Tribunals and conducted seminars on Female Genital Mutilation/Cutting and Protection by Presence in Darfur.
Dr Michelle Foster, Senior Lecturer and Director of the International Refugee Law research programme in the Institute for International Law and the Humanities of Melbourne University Law School, conducted a seminar on International Human Rights Law, the Refugee Convention and section 91R.

During the year the Tribunals discussed the Tribunals' operations and caseloads with senior Australian diplomats, including the Australian Ambassador Designate to Burma, the Australian Ambassador to Lebanon and the Australian Ambassador to Jordan.

Major reviews

There were no major reviews of the Tribunals during 2007-08.

Significant changes in the nature of functions or services

The Migration Amendment (Review Provisions) Act 2007 made amendments to the Migration Act in relation to the provision of information to applicants during hearings. These amendments applied to all applications lodged with the Tribunals on or after 29 June 2007. Principal Member Direction 3/2007: Conduct of hearings was issued on 21 September 2007 to provide guidance to Members of the Tribunals about the provision of information to applicants during hearings of the Tribunals.

Developments since the end of the year

There were no significant developments since the end of the year.