Part 1 – Principal Member’s Report

I am pleased to provide this report on the tribunals’ operations in a year which has again been a challenging one because of the large increase in review applications.

A combined total of 13,281 applications was received between 1 July 2010 and 30 June 2011, representing increases of 24% for the MRT and 31% for the RRT.

The tribunals finalised 9,181 cases. While RRT decision output increased by 21% compared with 2009–10, the total output from both tribunals was 6% less than in 2009–10. The decrease in finalisations can be attributed to: the increase in the number of RRT applications, which are more complex and to which we must give priority; the large changeover of members in July 2010, with 21 experienced members not reappointed or not seeking reappointment and new members taking time to become fully productive; and the absence on leave of eight experienced RRT members who have taken up positions as Independent Protection Assessors, dealing with the refugee claims of irregular maritime arrivals.

As lodgements exceeded the tribunals’ decisions during the year, the number of cases on hand increased by 53% compared with 2009–10.

For the MRT, trends showed significantly increased lodgements of permanent business refusals, bridging visa refusals and student visa refusals, and decreased lodgements of skilled visa refusals compared with 2009–10.

For the RRT, the top five source countries for lodgements were China (28%), Fiji (9%), India (8%), Egypt (6%) and Malaysia (6%). Lodgements relating to China declined as a proportion of RRT lodgements from 33% in 2009–10 to 28% this year, while lodgements for several other countries increased significantly, notably India and Egypt.

Compliance with the 90 day standard for RRT case finalisation was 71% for the full year. However, compliance with the 90 day target declined in the latter part of the year, due to member capacity issues arising from the combined impact of the increase in RRT cases and the appointment of experienced members as Independent Protection Assessors. Meeting the target of finalising 70% of RRT cases within 90 days will be a significant challenge in 2011–12. There will also be an impact on our timeliness in deciding MRT cases.

The quality of our decision making remains high, as the continuing reduction in judicial review applications and remittals shows. Only 8% of tribunal decisions made in 2010–11 were the subject of a judicial review application. Tribunal decisions (made in 2010–11 or earlier) were set aside by a court in only 94 (11%) of the 823 matters finalised by the courts in 2010–11. The application of the decision of the High Court in Berenguel v MIAC (dealing with the application of certain ‘time of application’ criteria) was the predominant reason for remittal of MRT decisions.

As I have said in previous reports, the operations of the tribunals and the experience of clients in negotiating the review process would be enhanced if legislative changes were made to abolish the procedural code relating to the putting of adverse information to the applicant, to repeal the privative clause and to return migration and refugee decision making to judicial review under the umbrella of the Administrative Decisions (Judicial Review) Act 1977. The code has not brought the certainty intended for it and instead spawns a deal of unproductive litigation.

The Principal Member Direction on Caseload and Constitution for 2011-12 sets an objective for the tribunals to finalise at least 11,500 cases in 2011-12. This target is 25% higher than the finalisations achieved in 2010–11 and represents the tribunals’ commitment to slowing the growth of cases on hand. The target is achievable, subject to the extent to which members are unavailable due to their undertaking Independent Protection Assessment work.

A number of strategies were implemented during the year to introduce processing efficiencies. These strategies have primarily involved allocating groups or batches of like cases to members or groups of members. This has allowed members to focus on particular case types, thereby increasing efficiency in the disposition of the cases. The benefits of these strategies were reflected in the increase in decision outputs towards the end of the year.

The National Members’ Conference was held in March 2011. The keynote speaker was Chief Justice French of the High Court of Australia. Six members of the New Zealand Immigration and Protection Tribunal also attended.

The tribunals held community liaison meetings across the country in December and May. At the meetings the tribunals provided reports on the caseload and discussed policy and procedural changes. Community liaison members raised issues relating to a number of matters, including caseload priorities, communication with representatives and application forms.

As part of the tribunals’ community liaison program, the tribunals held open days at the Melbourne and Sydney Registries during Refugee Week in June 2011. Members and tribunal staff gave short presentations and a mock RRT hearing gave visitors an insight into how RRT hearings are conducted.

In June the Governor-General appointed five Senior Members, 10 full-time members and 12 part-time members to the tribunals for a term of five years with effect from 1 July 2011. The increase in member numbers will increase the operational capacity of the tribunals.

Due to the increased membership in Brisbane, including a senior member located there, the Administrative Appeals Tribunal (AAT) has no longer been able to accommodate us. As a result, the tribunals have leased separate office space near the AAT. The AAT will continue to provide the tribunals with counter, lodgement and hearing facilities under a Memorandum of Understanding.

Eight members (seven members and one senior member) and four staff took up appointments as Independent Protection Assessors during the year. With a further 17 staff taking up staff roles with the Independent Protection Assessment Office, there has inevitably been an impact on the tribunals’ capacity to deal with its caseload. The tribunals continue to provide legal and country advice services to Independent Protection Assessors in relation to refugee status assessments in accordance with a Memorandum of Understanding (MoU) with the department. Over the course of the year, the tribunals provided a total of 690 legal opinions and 213 country research advices to Independent Protection Assessors.

The 2011–12 Federal Budget made increased appropriations to the tribunals of $13.9 million over the four years of the forward estimates. The increased appropriations are offset by increases in the MRT and RRT application fees and new refund and fee reduction provisions. The application fee has increased from $1,400 to $1,540. Application fees had not increased since 1999 for the MRT and since 2003 for the RRT.

The tribunals will still face significant financial challenges in the coming year. In particular, the tribunals will have significantly increased costs from the net increase in active membership from 81 to 105 members and from increases in member remuneration.

The tribunals are implementing an enhanced governance and business planning framework. The Tribunals’ Plan 2011–13 was developed during the year and is a key element of the tribunals’ planning framework. It provides overall strategic direction for the next three years. It is the keystone for the new governance structure for the tribunals.

Colin Plowman joined the tribunals in January 2011 as Registrar following the transfer of John Lynch to the Department of Immigration and Citizenship last year to head the Independent Protection Assessment Office. I thank John for the work he did as Registrar, particularly his key role some years ago in amalgamating the operations of the MRT and the RRT into a single agency. Colin Plowman comes to the tribunals with extensive experience as a senior executive in the Commonwealth and NSW State public sectors.

Finally, I acknowledge the significant effort staff and members of the tribunals have made during the year as we have sought to deal with our significantly increased workload.