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Part 3 – Performance report

The tribunals contributed to Australia’s migration and refugee programs during the year through the provision of quality and timely reviews of decisions, completing 9,181 reviews. The outcomes of review were favourable to applicants in 37% of the cases decided.

Performance framework

The tribunals operate in a high volume decision making environment where the case law and legislation are complex and technical. In this context, fair and lawful reviews are dependent on a number of factors, including resources, member numbers and skilled staff support services.

Both tribunals have identical statutory objectives, set out in sections 353 and 420 of the Migration Act:

The Tribunal shall, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

The key strategic priorities for the tribunals are to meet the statutory objectives through the delivery of consistent, high quality reviews and timely and lawful decisions. Each review has to be conducted in a way that ensures, as far as practicable, that the applicant understands the issues and has a fair opportunity to comment on or respond to any matters which might lead to an adverse outcome. The tribunals also aim to meet government and community expectations and to have effective working relationships with stakeholders. These priorities are reflected in the Tribunals’ Plan.

During 2010–11, the key outcome agreed with Government was:

To provide correct and preferable decisions for visa applicants and sponsors through independent, fair, just, economical, informal and quick merits reviews of migration and refugee decisions.

The tribunals had one program contributing to this outcome, which was:

Final independent merits review of decisions concerning refugee status and the refusal or cancellation of migration and refugee visas.

Table 3.1 summarises the tribunals’ performance against the program deliverables and key performance indicators that were set out in the 2010–11 portfolio budget statements.

Table 3.1 – Performance information and results

Measure	Result
DELIVERABLES
8,300 cases	The tribunals decided 9,181 cases.
Key performance indicators
Less than 5% of tribunal decisions set aside by judicial review	At the time of this report, 0.3% of MRT and 1.1% of RRT decisions made in 2010–11 had been set aside by judicial review.
70% of cases decided within time standards	96% of bridging visas (detention cases) were decided within 7 working days. 71% of RRT cases were decided within 90 calendar days. 60% of MRT visa cancellations were decided within 150 calendar days. 55% of general MRT cases were decided within 350 days.
Less than 5 complaints per 1,000 cases decided	The tribunals received less than 3 complaints per 1,000 cases decided.
40% of decisions published	The tribunals published 43% of all decisions.

A feature of 2010–11 has been the very large increase in lodgements for both the MRT and the RRT and the transfer of eight members including a senior member to the Independent Protection Assessment Office.

The IPAO makes and reviews assessments of protection claims made by offshore entry persons who cannot apply for a visa unless permitted to do so by the Minister personally. These assessments are not reviewable by the MRT or RRT. Members and staff who are among those appointed as reviewers and assessors are on leave of absence from the tribunals while conducting those duties.

As lodgements exceeded the tribunals’ decisions during the year, the number of cases on hand increased by 53% compared to 2009–10.  The tribunals have responded to these challenges with strategies to improve processing efficiency.  The strategies have primarily involved allocating groups or batches of like cases to members or groups of members. This has allowed members to develop greater expertise in relation to these case types, to reduce hearing times and to reduce the number of days taken to finalise cases from constitution to decision. 

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 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 8,300 cases in 2010–11. The tribunals decided 9,181 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’ revenues from ordinary activities totalled $42.9m and expenditure totalled $45.5m, resulting in a net loss of $2.6m. The tribunals received approval from the Finance Minister for an operating loss of up to $4.4m for the financial year.

The 2011–12 Federal Budget provided increased appropriations of $13.9m less the increase in the efficiency dividend applicable across the public sector over the four years of the forward estimates. The increased appropriations to the tribunals are offset by increases in the MRT and RRT application fees and new refund and fee reduction procedures with effect from 1 July 2011.

The tribunals administer application fees on behalf of government. Details of administered revenue are set out in the financial statements.

The financial statements for 2010–11, which are set out in Part 5, have been audited by the Australian National Audit Office and received an unqualified audit opinion.

Overview of caseload

The tribunals received 13,281 cases during the year and decided 9,181 cases:

• The MRT received 10,315 cases, decided 6,577 cases and had 10,786 active cases at the end of the year.
• The RRT received 2,966 cases and decided 2,604 cases, and had 1,100 active cases at the end of the year.

Statistical tables and charts covering the MRT and RRT caseloads are set out on pages 30–38.

Lodgements

Lodgements of applications for review tend to fluctuate between years, according to trends in primary applications and in primary decision making and changes to visa criteria and jurisdiction.

The MRT has jurisdiction to review a wide range of visa, sponsorship and other decisions relating to migration and temporary entry visas. Only a small proportion of primary decisions made by the Department come to the MRT.

In 2010–11, the MRT had very large increases in student refusal and student cancellation lodgements, as well as moderate increases in permanent business, partner and visitor lodgements.

Approximately 27% of visa refusal applications to the MRT related to persons outside Australia seeking 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 for a close relative to be identified in the application, and these cases are mainly in the skilled, visitor, partner and family categories.

The RRT has jurisdiction to review protection (refugee) visa decisions made within Australia. Over 4,000 protection visa applications were initially refused at the primary level. All protection visa applicants within Australia have a right to apply for review if a protection visa is refused.

While lodgements to the RRT were made by applicants from over 106 countries, 55% of the RRT’s lodgements involved nationals of five countries, the People’s Republic of China (PRC), Fiji, India, Egypt and Malaysia. The largest number of applications was from nationals of the PRC: these applications were over three times the number of applications received from the next largest source country, Fiji.

Applicants to both tribunals tend to be located in the larger metropolitan areas. 48% of all applicants resided in New South Wales, mostly in the Sydney region. Approximately 25% of applicants resided in Victoria, 12% in Queensland, 8% in Western Australia, 4% in South Australia, 2% in the Australian Capital Territory and Northern Territory combined and less than 1% in Tasmania.

Cases involving applicants held in immigration detention comprised 3.3% of the cases before the tribunals, with most applicants within Australia holding a bridging visa or other visa during the course of the review.

Statistics

Caseload overview

	2010–11	2009–10	2008–09
MIGRATION REVIEW TRIBUNAL
On hand at start of year	7,048	6,295	4,640
Lodged	10,315	8,332	7,422
Decided	6,577	7,580	5,767
On hand at end of year	10,786	7,048	6,295
REFUGEE REVIEW TRIBUNAL
On hand at start of year	738	624	548
Lodged	2,966	2,271	2,538
Decided	2,604	2,157	2,462
On hand at end of year	1,100	738	624
TOTAL MRT AND RRT
On hand at start of year	7,786	6,919	5,188
Lodged	13,281	10,603	9,960
Decided	9,181	9,737	8,229
On hand at end of year	11,886	7,786	6,919

Lodgements

	2010–11	2009–10	2008–09	% change 2009–10 to 2010–11
MIGRATION REVIEW TRIBUNAL
Visa refusal - Bridging	264	139	139	+90%
Visa refusal – Visitor	920	690	562	+33%
Visa refusal – Student	3,138	1,937	691	+62%
Visa refusal – Temporary business	621	567	684	+10%
Visa refusal – Permanent business	661	285	314	+132%
Visa refusal - Skilled	635	1,182	1,889	-46%
Visa refusal – Partner	1,348	1,157	1,372	+17%
Visa refusal – Family	672	739	536	-9%
Cancellation – Student	1,107	875	501	+27%
Sponsor approval refusal	174	187	209	-7%
Other	775	574	525	+35%
Total MRT	10,315	8,332	7,422	+24%
REFUGEE REVIEW TRIBUNAL
China (PRC)	819	751	999	9%
Fiji	252	243	59	4%
India	221	138	287	60%
Egypt	181	52	39	248%
Malaysia	172	201	165	-14%
Indonesia	146	115	115	27%
Lebanon	125	84	80	49%
Nepal	107	28	25	282%
Pakistan	102	53	58	92%
Zimbabwe	84	52	40	62%
Other	757	554	671	37%
Total RRT	2,966	2,271	2,538	31%
Total MRT and RRT	13,281	10,603	9,960	25%

MRT lodgements, decisions and cases on hand

MRT lodgements by case type

MRT and RRT cases on hand

RRT lodgements, decisions and cases on hand

RRT lodgements by country of reference

MRT and RRT decisions 2010-11

Cases on hand

	2010–11	2009–10	2008–09
MIGRATION REVIEW TRIBUNAL
Visa refusal – Bridging	9	12	24
Visa refusal – Visitor	357	189	178
Visa refusal – Student	3,716	1,898	699
Visa refusal – Temporary business	911	645	649
Visa refusal – Permanent business	841	328	322
Visa refusal – Skilled	711	1,034	1,746
Visa refusal – Partner	1,731	1,320	1,431
Visa refusal – Family	833	632	439
Cancellation – Student	600	289	224
Sponsor approval refusal	296	247	214
Other	781	454	369
Total MRT	10,786	7,048	6,295
REFUGEE REVIEW TRIBUNAL
China (PRC)	279	219	229
Fiji	64	130	14
India	80	39	70
Egypt	112	18	10
Malaysia	17	32	27
Indonesia	36	10	17
Lebanon	49	19	15
Nepal	56	13	6
Pakistan	59	16	15
Zimbabwe	30	23	26
Other	318	219	195
Total RRT	1,100	738	624
Total MRT and RRT	11,886	7,786	6,919

Timeliness of reviews

	2010–11	2009–10	2008–09
AVERAGE TIME TAKEN (DAYS)*
Bridging (detention) cases (MRT)	7	7	7
Visa cancellations (MRT)	150	123	114
All other MRT cases	337	311	293
Protection visa cases	99	99	86
PERCENTAGE DECIDED WITHIN TIME STANDARDS*
Bridging (detention) cases (MRT ) – 7 working days	96%	89%	88%
Visa cancellations (MRT) – 150 calendar days	60%	76%	79%
All other MRT cases – 350 calendar days †	55%	52%	50%
Protection visa cases – 90 calendar days	71%	69%	73%

* Calendar days other than for bridging (detention) cases which is by working days. Time standards as set out in the Migration Act and Migration Regulations or in the 2010–11 Portfolio Budget Statement. For MRT cases, time taken is calculated from date of lodgement. For RRT cases, time taken is calculated from the date the Department’s documents are provided to the RRT. The average time from lodgement of an application for review to receipt of the Department’s documents was 21 days for MRT cases and 6 days for RRT cases.

†In 2008-09, the applicable time standard was 320 days. Figures shown are against the time standard which applied in the relevant financial year.

Number and age of cases on hand

Percentage of cases decided within time standards

Outcomes of review

	2010–11	2009–10	2008-09
MIGRATION REVIEW TRIBUNAL
Primary decision set aside or remitted	2,728	3,429	2,783
Primary decision affirmed	2,356	2,700	2,005
Application withdrawn by applicant	754	796	495
No jurisdiction to review*	739	655	484
Total	6,577	7,580	5,767
REFUGEE REVIEW TRIBUNAL
Primary decision set aside or remitted	626	514	468
Primary decision affirmed	1,815	1,540	1,787
Application withdrawn by applicant	53	21	29
No jurisdiction to review*	110	82	178
Total	2,604	2,157	2,462

* No jurisdiction decisions include applications not made within the prescribed time limit, not made in respect of reviewable decisions or not made by a person with standing to apply for review. 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.

Cases decided and set aside rates

	2010–11		2009–10		2008–09
	Cases	% set aside	Cases	% set aside	Cases	% set aside
MIGRATION REVIEW TRIBUNAL
Visa refusal – Bridging	267	12%	151	15%	133	12%
Visa refusal – Visitor	752	59%	679	58%	637	59%
Visa refusal – Student	1,320	36%	738	42%	564	37%
Visa refusal – Temporary business	355	25%	571	30%	560	37%
Visa refusal – Permanent business	148	32%	278	46%	165	42%
Visa refusal – Skilled	958	53%	1,895	42%	958	51%
Visa refusal – Partner	937	62%	1,268	66%	1,221	67%
Visa refusal - Family	471	39%	546	42%	557	45%
Cancellation – Student	796	25%	811	41%	412	40%
Sponsor approval refusal	126	22%	161	21%	96	27%
Other	447	32%	482	38%	464	35%
Total MRT	6,577	41%	7,580	45%	5,767	48%
REFUGEE REVIEW TRIBUNAL
China (PRC)	759	22%	761	27%	986	21%
Fiji	318	13%	127	15%	54	13%
India	181	7%	169	6%	265	4%
Egypt	87	36%	44	52%	35	31%
Malaysia	187	2%	196	3%	166	7%
Indonesia	120	4%	122	7%	129	8%
Lebanon	95	31%	80	26%	79	32%
Nepal	64	16%	21	33%	33	27%
Pakistan	59	36%	52	42%	54	17%
Zimbabwe	77	61%	55	58%	22	55%
Other	657	39%	530	25%	639	26%
Total RRT	2,604	24%	2,157	24%	2,462	19%
Total MRT and RRT	9,181	37%	9,737	40%	8,229	40%

Conduct of reviews

The procedures of the MRT and the RRT are inquisitorial rather than adversarial in nature. Proceedings before the tribunals do not take the form of litigation between parties. The review is an inquiry in which the member identifies the issues or criteria in dispute, initiates investigations or inquiries to supplement evidence provided by the applicant and the Department and ensures procedural momentum. At the same time, the member must maintain an open and impartial mind.

Applicants appointed a representative to assist or represent them in 65% of MRT cases decided and in 53% of RRT cases decided.

In the 6,577 MRT cases decided, hearings were arranged in 4,209 cases, and held in 3,485 or 53% of the cases decided. In the 2,604 RRT cases decided, hearings were arranged in 2,473 cases, and held in 1,927 or 74% of the cases decided.

The cases which do not proceed to hearing include cases where a decision favourable to the applicant is made prior to the hearing date, cases where the applicant does not attend the hearing or which can be decided without a hearing being required, and cases where the applicant withdraws his or her application before the hearing. Favourable decisions on the papers were made in 9% of MRT cases (including in 29% of skilled visa refusal cases) and in less than 1% of RRT cases.

Most hearings are held in person. Video links were used in 15% of hearings. The average duration of MRT hearings was 75 minutes, and the average duration of RRT hearings was 135 minutes. Two or more hearings were held in 11% of RRT cases and in 4% of MRT cases.

Interpreters at hearings

The tribunals aim to identify, implement and promote best practice in interpreting at hearings. High quality interpreting services are fundamental to the work of the tribunals. In 2010–11, the tribunals arranged 8,769 hearings. Interpreters were required for 65% of MRT hearings and for 83% of RRT hearings, across approximately 89 languages and dialects.

The tribunals have an Interpreter Advisory Group (IAG), which has the overall objective of ensuring, as far as possible, that the tribunals maintain access to a high standard of interpreters and that tribunal practices facilitate this. The IAG has a national membership comprising both members and tribunal officers. The IAG monitors developments in the use of interpreters and makes recommendations to the Management Board and the Member Professional Development Committees. The IAG also arranges or conducts training for both new and existing members.

The IAG has a national membership. The IAG is chaired by Member Paul Fisher, and comprises Senior Members Shahyar Roushan and Don Smyth, Members Paul Millar and Rosie Mathlin, and five registry officers.

Outcomes of review

A written statement of decision and reasons is prepared in each case and provided to both the applicant and the Department.

The MRT set aside or remitted the primary decision in 41% of cases decided and affirmed the primary decision in 36% of cases decided. The remaining 23% 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 24% of cases decided and affirmed the primary decision in 70% of cases decided. The remaining 6% of cases were either withdrawn by the applicant or were cases where the tribunal decided it had no jurisdiction to conduct the review.

The fact that a decision is set aside by the tribunal is not necessarily a reflection on the quality of the primary decision, which may have been correct and reasonable on the information available at the time of the decision. Departmental officers in general make sound decisions across a very large volume of cases and make favourable decisions in the majority of cases.

Applicants for review typically address the issues identified by 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 additional information before the tribunal, and there may be court judgments or legislative changes which affect the outcome of the review.

Applicants were represented in 61% of cases before the tribunals. Most commonly, representation was by a registered migration agent. In cases where applicants were represented, the set aside rate was higher than for unrepresented applicants. The difference was most notable for RRT cases where the set aside rate was 35% for represented applicants and 12% for unrepresented applicants. Unrepresented applicants may or may not have sought advice on their prospects of success before applying for review, and only 50% of unrepresented applicants to the RRT attend hearings, compared to almost 87% of applicants who have a representative. For the MRT, there was also an appreciable difference in outcome for unrepresented applicants. The set aside rate was 45% for represented applicants and 35% for unrepresented applicants.

Set aside rates also vary by gender of the review applicant. For the MRT, the set aside rate was 46% for females and 39% for males. For the RRT, the set aside rate for females was 28% and the set aside rate for males was 22.4%.

A total of 215 cases (2% of the cases decided) were referred to the Department during the year for consideration under the Minister’s intervention guidelines. These cases raised humanitarian or compassionate circumstances which members considered should be drawn to the attention of the Minister.

Timeliness

The tribunals aim to resolve cases quickly. Members actively manage their caseloads from the time of allocation until decision. Members are expected to identify quickly 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. Older cases are monitored by Senior Members to assist in minimising unnecessary delays.

Some cases cannot be decided 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 an assessment or information needs to be obtained from another body or agency.

Increasingly, cases cannot be decided within the relevant time standards due to the growing volume of cases on hand. In 2010–11 the tribunals’ active caseload increased by 53% compared to 2009–10. While the tribunals have responded by developing strategies to improve processing efficiencies, the active caseload has continued to increase.

As required by section 441A of the Migration Act, the Principal Member provided reports every four months relating to tribunal compliance with the 90 day period for RRT reviews. These reports are provided to the Minister for tabling in Parliament. Over 2010–11, 71% of RRT cases were decided within 90 days; the average time to decision was 99 days. The reasons why cases exceeded 90 days included compliance with statutory procedural requirements (59% of cases), further investigations, submission of further material after the hearing, and the postponement or adjournment of hearings.

Judicial review

For persons wishing to challenge an MRT or RRT decision, two avenues of judicial review are 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 Constitution. 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.

The applicant and the Minister are generally the parties to a judicial review of a tribunal decision. Although 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.

In 2010–11 the number and percentage of RRT decisions taken to judicial review decreased in comparison with previous years. The number of MRT decisions taken to judicial review was broadly consistent with previous years although the percentage has fluctuated slightly. Table 3.2 sets out judicial review applications and outcomes in relation to the tribunal decisions made over the last 3 years.

If a tribunal decision is set aside or quashed, the court order is usually for the matter to be remitted to the Tribunal to be reconsidered. In such cases, the Tribunal (usually constituted by a different member) must reconsider the case and make a fresh decision, taking into account the decision of the court and any further evidence or changed circumstances. In 62% of MRT cases and 33% of RRT cases reconsidered in 2010-11 the reconstituted tribunal made a decision favourable to the applicant.

Table 3.2 –Judicial review applications and outcomes as at 31 August 2011

	MRT			RRT
	2010–11	2009–10	2008–09	2010–11	2009–10	2008–09
Tribunal decisions	6,577	7,580	5,767	2,604	2,157	2,462
Court applications	251	248	244	520	524	855
% of tribunals decisions	3.8%	3.3%	4.2%	20%	24.3%	34.7%
Applications resolved	116	237	242	304	505	851
– decision upheld or otherwise resolved	95	160	166	276	461	732
– set aside by consent or judgement	21	77	76	28	44	119
– set aside decisions as % of judicial applications resolved	18.1%	32.5%	31.4%	9.2%	8.7%	14%
– set aside decisions as % of MRT/RRT decisions made	0.3%	1.0%	1.3%	1.1%	2.0%	4.8%

Note: The table above shows the number of tribunal decisions made during the reporting period that have been the subject of a judicial review application, and the judicial review outcome for those cases.

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.

Summaries of some notable judicial decisions since 1 July 2010 are set out on the following pages. These decisions had an impact on the tribunals’ decision making or procedures, or on the operation of judicial review in relation to tribunal decisions.

As there are restrictions on identifying applicants for protection visas, letter codes or reference numbers are used by the courts in these cases. Unless stated otherwise, references are to the Migration Act and Migration Regulations. The Minister is a party in most cases, and “MIAC” is used to identify the Minister in the abbreviated citations provided.

RRT – undertaking inquiries requested by an applicant

The visa applicant applied for a protection visa on the basis that he feared harm in Nepal because of his support for Maoists.  He attributed inconsistencies in the evidence to depression, bipolar mood disorder and forgetfulness.  He provided statutory declarations and certificates from a psychiatrist in support, and his representative asked the RRT to arrange an independent assessment if not satisfied with these.  The RRT did not arrange such an assessment and proceeded to find that the applicant was not a supporter of the Maoists.  The RRT’s decision was upheld on appeal to the Federal Magistrates Court but then overturned by the Federal Court.  The High Court on appeal held that the RRT decision could not be overturned on the basis that procedural decisions made during the course of the review are not referred to in an RRT decision.  The Court held that the Migration Act did not impose a general duty upon the RRT to make inquiries, or a legal obligation to exercise the power under section 427(1)(d) to require the Secretary of the Department of Immigration to undertake an investigation. [MIAC v SZGUR [2011] HCA 1]

RRT - Restrictions on dual nationals applying for a protection visa

The visa applicants applied for protection visas on the basis that they feared persecution in North Korea. They claimed to be North Korean nationals and never to have resided in South Korea. Their applications were refused by a delegate of the Minister and they sought review by the RRT. The RRT found that the applicants were nationals of North Korea as claimed but were also nationals of South Korea. It found that South Korean nationality laws conferred South Korean nationality on all people born within the Korean peninsula. The RRT concluded that as the applicants were dual nationals, they were prevented by section 91P of the Migration Act 1958 from making a valid protection visa application. The Federal Magistrates Court on review agreed that the applicants’ protection visa applications were invalid. The Court held that Subdivision AK of the Act, and s.91N(1) in particular, were intended to render invalid a protection visa application when made by a person with dual nationality in the absence of a prior determination by the Minister under s.91Q that s.91P does not apply to that person. This was so even if the local laws of the country of dual nationality did not confer a right of entry and residence at the date of the visa application. [SZOUY & Ors v MIAC & Anor [2011] FMCA 347]

RRT – Notice of witnesses

The visa applicant applied for a protection visa on the basis that he feared persecution in Lebanon. On the day of the RRT hearing, the applicant attended the tribunal premises with two witnesses who were asked to wait outside the hearing room while he was taken inside. The applicant did not separately draw the Presiding Member’s attention to the presence of his witnesses and the Member closed the hearing without taking evidence from the witnesses. The Tribunal found the applicant was not a credible witness and while accepting some of his claims ultimately found that he would receive effective state protection. On review before the Federal Magistrates Court, the applicant gave evidence that he completed the ‘Response to Hearing Invitation’ form (the response) which nominated the witnesses and returned it to the RRT within about a week of receiving it, although there was no evidence of receipt by the RRT of the form, or of the form itself on the RRT file. The Court held that the RRT erred in failing to have regard to the applicant’s requests to call witnesses. The Court found that section 426(2) of the Migration Act required dispatch of response by an applicant within 7 days of being notified under section 426(1), rather than receipt by the RRT within 7 days. On the applicant’s evidence the response was dispatched by him within 7 days, and thus was required to be considered. [SZOGI v MIAC & Anor [2010] FMCA 390]

MRT – Judicial review for the purpose of bridging visas

Mr Khandakar held a student visa which was cancelled in March 2007 for non-compliance with a visa condition. He unsuccessfully lodged a series of applications seeking new student visas. In May 2010 he applied for a bridging visa. At that time, he had also commenced a proceeding in the High Court under s.75(v) of the Constitution in relation to a decision to refuse to accept a student visa application. Those proceedings were commenced in April 2010, outside the specified time limit in s.486A(1) of the Migration Act 1958. Accordingly, Mr Khandakar also sought orders enlarging time, to the extent necessary, to permit him to commence proceedings for substantive relief. The MRT affirmed the decision to refuse to grant the bridging visa on the basis that the visa applicant had not ‘applied for judicial review’ as required by the visa criterion in cl.050.212(4)(a) in Schedule 2 to the Migration Regulations 1994. In reaching its decision, the Tribunal found that as the application to the High Court was seeking orders to permit the applicant to commence proceedings, it was only if the Court granted those orders that he could be said to ‘have applied for judicial review’. Upholding the Federal Magistrates Court orders to quash the MRT decision, the Full Court of the Federal Court held that the High Court application satisfied the requirement that the visa applicant had applied for ‘judicial review of a decision in respect of a substantive application’. The Court held that the criterion should not be given an overly technical construction that required reading it as though only a ‘competent’ application or one that was not precluded by s.486A or 477(1) would be sufficient. [MIAC v Khandakar [2011] FCAFC 22]

MRT – Comment or response to adverse information

Saba Bros Tiling Pty Ltd sought approval for a nomination of a position under the Employer Nomination Scheme. The application had been refused by a delegate of the Minister in October 2008 on the basis that Saba Bros had been issued with a sanction notice in August 2008 under section 140J of the Migration Act 1958 which barred the company from nominating a person or activity for three months. In January 2010, in the course of reviewing the delegate’s decision, the MRT invited the company under section 359A of the Migration Act to comment on, or respond to, information that would be the reason or part of reason for affirming the decision under review. The information was the existence of the sanction. On the last day for response the company’s solicitors wrote to the MRT stating “We have put the adverse information to our client; however we are instructed that he would still like the opportunity of an oral hearing”. The MRT did not regard the letter as a ‘comment’ or ‘response’ and found that under sections 359C and 360 of the Migration Act, the company had lost its right to an oral hearing. In its decision the MRT acknowledged that the period of the sanction had passed, and the application could not be refused on that basis, but was not satisfied the company otherwise met the criteria for approval. On appeal, the Federal Court held that the MRT was wrong to conclude that the solicitor’s letter did not constitute a ‘response’ for the purpose of section 359A. The Court stated that a response does not require substantive remarks or observations; any reply or answer directed to the information itself will constitute a response. The Court also observed that as the sanction had lapsed at the time of the MRT’s invitation, it was not rationally capable of being seen as ‘information’ which might be the reason or a part of the reason for affirming the decision under review. [MIAC v Saba Bros Tiling Pty Ltd [2011] FCA 233]

MRT – Loss of hearing entitlement

Mr Kumar’s student visa was cancelled by a delegate of the Minister for non-compliance with a visa condition. He sought review of that decision by the MRT. In April 2010 the MRT invited Mr Kumar to comment on, and provide information under sections 359A and 359 of the Migration Act 1958. Shortly after, and before the time for response had passed, the MRT invited Mr Kumar to attend a hearing. However, that invitation was later withdrawn by the MRT as no response to its April request for information had been received within the time specified. Referring to sections 360(3) and 363A, the MRT found Mr Kumar had lost his entitlement to appear before the Tribunal. On judicial review, the Federal Magistrates Court held the MRT had erred in finding it was required to cancel the hearing. The Court held that sections 360(3), 359C and 363A read in combination were a punitive restriction on a fundamental element of the review process and as such should be interpreted strictly. While the Tribunal would be prevented from issuing a further hearing invitation after an applicant had failed to respond to an invitation to comment on or provide information, it was not required to cancel a hearing to which an applicant had already lawfully been invited. [Kumar v MIAC & Anor [2010] FMCA 614].

Mr Giri sought review by the MRT of a decision to cancel his student visa. In September 2010, the MRT invited Mr Giri to comment on adverse information under section 359A. Before the time for response had passed, the MRT invited Mr Giri to a hearing. That hearing was subsequently cancelled by the MRT after Mr Giri failed to respond to the section 359A invitation. The MRT affirmed the decision under review. On review, the Federal Magistrates Court declined to follow Kumar v MIAC & Anor [2010] FMCA 614, concluding that even though the hearing invitation had been issued prior to Mr Giri’s failure to comply with the section 359A invitation, once he failed to respond, the operation of section 360(3) then attracted the express terms of section 363A, with the effect that the MRT did not have power to permit Mr Giri to appear at a hearing.
[Giri v MIAC [2011] FMCA 282]

MRT – validity of independent expert opinions in domestic violence matters

Mr Maman applied for a Subclass 801 Partner visa on the basis of his marriage to an Australian citizen. In 2007, Mr Maman advised the Department of Immigration that he had been subjected to domestic violence by his partner and that processing of his visa application should proceed on the basis of him satisfying the domestic violence visa criteria. A delegate of the Minister refused the application and Mr Maman sought review by the MRT. The MRT requested an ‘independent expert opinion’ under regulation 1.23(10)(c) of the Migration Regulations 1994 as to whether the Mr Maman had suffered the alleged domestic violence. It provided the expert with a letter received in confidence from Mr Maman’s spouse. The independent expert formed an opinion that the applicant was not a victim of domestic violence, and referred in that report to the claims made by the spouse in the letter. The Tribunal invited Mr Maman to comment on the opinion and, in response, the applicant requested a new independent expert’s report on the basis that, among other things, the matters raised in the letter from the spouse had not been put to him for comment. The Tribunal did not grant that request and proceeded to affirm the delegate’s decision on the basis of the expert’s opinion. Quashing the MRT decision, the Federal Magistrates Court held that the MRT failed to give appropriate consideration as to whether the expert opinion was properly made. The MRT was required, in assessing whether the opinion was properly made, to consider whether or not the applicant had been afforded procedural fairness by the expert.
[Maman v MIAC [2011] FMCA 462]

MRT – ‘time of application’ criteria

Mr Habib applied for a Skilled (Provisional)(Class VC) visa in March 2008. A delegate of the Minister refused the visa on the grounds that Mr Habib did not have ‘competent English’ as there was no evidence of him achieving the necessary International English Language Testing System (IELTS) test results either before or after making the visa application. During the course of the MRT review, the applicant re-sat the test, and presented evidence to the MRT that he had achieved the required score. Despite this, the MRT affirmed the decision, on the basis that the applicant did not satisfy clause 485.215(b) or (c) of Schedule 2 to the Migration Regulations 1994, as he had not provided evidence of competent English at the time of application (clause 485.215(b)), and his application was not accompanied by evidence that he had made arrangements to undergo a language test as required by clause 485.215(c). The Federal Magistrates Court held that the MRT had erred by refusing to take into account the applicant’s IELTS test results. Applying the High Court’s decision in Berenguel v MIAC [2010] HCA 8, the Court held that the ‘time of application’ language test criterion found in clause 485.215(b) could be satisfied by an English language test sat at any time, including after the visa application was made. [Habib v MIAC [2010] FMCA 450]

Ms Rai applied for a Skilled (Provisional)(Class VC) visa. The visa was refused by a delegate of the Minister, and that decision was affirmed by the MRT. The MRT found that Ms Rai did not meet clause 485.214 of Schedule 2 to the Migration Regulations 1994 because at the time of visa application she had not applied for an assessment of her skills by a relevant assessing authority. It also found that she did not meet the corresponding ‘time of decision criterion’ in clause 485.221. The Federal Magistrate Court dismissed an application for judicial review, although it noted that the MRT erred in its interpretation of clause 485.214. Applying Berenguel v MIAC [2010] HCA 8, the Court observed that the ‘time of application’ criterion could be satisfied at any time until the time of decision. [Rai v MIAC & Anor [2010] FMCA 472]

Mr Patel applied for a Skilled (Provisional)(Class VC) visa in December 2007. The visa was refused by a delegate of the Minister on the basis that he did not meet clause 487.213 of Schedule 2 to the Migration Regulations as he was not nominated by a State or Territory government agency. Shortly thereafter, the applicant was advised by the Murray Regional Development Board, a State Government agency, that he had been nominated by the agency. On review, the Tribunal affirmed the delegate’s decision finding that, although the applicant was now nominated by a relevant agency, he was not nominated ‘at the time of application’ as required by the visa criterion. The Federal Magistrates Court agreed. Distinguishing the High Court matter of Berenguel v MIAC [2010] HCA 8, the Court held that clause 487.213 could not be satisfied by a nomination made after the visa application was made. [Patel v MIAC & Anor [2010] FMCA 848].

Mr Gill applied for a Skilled (Residence) (Class VB) visa in January 2008. A delegate of the Minister refused the application and that decision was affirmed by the MRT on the basis that Mr Gill did not satisfy clause 885.215 as his visa application was not accompanied by evidence that he had made arrangements to undergo a medical examination. The MRT found that arrangements that were made during the course of the tribunal review did not satisfy the criterion. The Federal Magistrates Court agreed. Distinguishing Berenguel v MIAC [2010] HCA 8, the Court held that the purpose of the clause could only be achieved if it were understood to apply at the time of application, not at any time afterwards. [Gill v MIAC [2010 FMCA 587].

 

Social justice and equity

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. A review of the Service Charter was undertaken and a revised version published in April 2011. In reviewing the Service Charter, the tribunals have undertaken extensive stakeholder consultation.

Table 3.3 – sets out the tribunals’ performance during the year against service standards contained in the Service Charter.

Table 3.3 – Report against service standards

Service standard	Report against standard for 2010–11	Outcome
1. Be helpful, prompt and respectful when we deal with you	Members and staff attended induction training emphasising the importance of providing quality service to clients.	Achieved
2. Use language that is clear and easily understood	Clear English is used in correspondence and forms. Staff use professional interpreters to communicate with clients from non-English speaking backgrounds. There is a language register listing staff available to speak to applicants in their language, where appropriate.	Achieved
3. Listen carefully to what you say to us	The tribunals book interpreters for hearings whenever they are requested by applicants and wherever possible accredited interpreters are used in hearings. Interpreters were used in 72% of hearings held (64% MRT and 84% RRT) in 2010–11. The tribunals employ staff from diverse backgrounds who speak more than 20 languages. Staff use professional interpreters to communicate with clients from non-English speaking backgrounds in hearings. The tribunals’ Stakeholder Engagement Plan for 2010–11 sets out how the tribunals will engage with stakeholders and the engagement activities planned for 2010–11 and beyond. Community Liaison meetings were held twice during 2010–11 in Sydney, Melbourne, Brisbane, Perth and Adelaide. The tribunals have a formal complaints, compliments and suggestions process.	Achieved
4. Acknowledge applications for review in writing within 2 working days	In 2010–11, an acknowledgement letter was sent within 2 working days of lodgement in more than 95% of cases.	95%
5. Include a contact name and telephone number on all our correspondence	All letters include a contact name and telephone number.	Achieved
6. Help you to understand our procedures	The tribunals provide applicants with information about tribunal procedures at several stages during the review process. The tribunals’ website includes a significant amount of information, including forms and factsheets. Case officers are available in the NSW and Victorian registries to explain procedures over the counter or the telephone. The tribunals have an email enquiry address applicants can use to seek general information about procedures.	Achieved
7. Provide information about where you can get advice and assistance	The tribunals’ website, Service Charter and application forms provide information about where applicants can get advice and assistance. Factsheet MR2: Immigration Assistance notifies applicants of organisations and individuals who can provide them with immigration assistance. The tribunals’ application forms R1, M1 and M2 explain in 28 community languages how applicants may contact the Translating and Interpreting Service.	Achieved
8. Attempt to assist you if you have special needs	The tribunals employ a range of strategies to assist applicants with special needs. Our offices are wheelchair accessible and hearing loops are available for use in hearing rooms. Whenever possible, requests for interpreters of a particular gender, dialect, ethnicity or religion are met. Hearings can be held by video. A national enquiry number is available from anywhere in Australia (calls are charged at the cost of a local call – not available from mobile telephones).	Achieved
9. Provide written reasons when we make a decision	In all cases, a written record of decision and the reasons for decision is provided to the review applicant and to the Department.	Achieved
10. Publish guidelines relating to the priority we give to particular cases	Guidelines relating to the priority to be given to particular cases are published in the annual Caseload and Constitution Policy, which is available on the tribunals’ website.	Achieved
11. Publish the time standards within which we aim to complete reviews	Time standards are also set out in the Caseload and Constitution Policy.	Achieved
12. Abide by the Australian Public Service Values and Code of Conduct (staff)	New staff attend induction training, which includes training on the APS Values and the Code of Conduct. Ongoing staff complete refresher training at regular intervals.	Achieved
13. Abide by the Member Code of Conduct (members)	All new members attend induction training which includes the Member Code of Conduct. All members complete annual conflict of interest declaration forms and undergo performance reviews by Senior Members.	Achieved
14. Publish information on caseload and tribunal performance	Information relating to the tribunals’ caseload and performance in the current and previous financial years is published on the tribunals’ website (under ‘Statistics’). Further statistics, including those on the judicial review of tribunal decisions, are available in the tribunals’ Annual Reports.	Achieved

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.

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 Service Charter is available on the 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 ‘Information for Representatives’ webpage is specifically aimed at supporting representatives, bringing together the most often used resources and information. A ‘Frequently Asked Questions’ page answers representatives’ most commonly asked questions.

The tribunals value our relations with stakeholders in the community and hold regular community liaison meetings. Our Stakeholder Engagement Plan 2010–11 sets out how we seek to understand and incorporate stakeholders’ perspectives.

The tribunals have offices in Sydney and Melbourne which are open between 8.30am and 5pm on working days. The tribunals have 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. 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 Reconciliation Action Plan which was published in April 2011. The Workplace Diversity Program was reviewed and published in April 2011. Further information about these strategies and plans is set out in Part 4.

Complaints

As outlined 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. The Service Charter is available on the ‘complaints and compliments’ page on the tribunals’ website.

A person who is dissatisfied with how the tribunals 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 button on the homepage of the tribunals’ website makes it easier for clients to make a complaint.

Alternatively, a person can make a complaint to the Commonwealth Ombudsman, although, as a general rule, the Ombudsman will not investigate complaints until they have been raised with the relevant agency.

The tribunals will acknowledge receipt of a complaint within 5 working days. A senior officer will investigate the complaint and aim to provide a written response to the complaint within 20 working days of receipt of the complaint. With the exception of 1 matter, all complaints dealt with in 2010–11 were responded to within 20 working days.

Table 3.4 sets out the number of complaints finalised over the last 3 years.

Table 3.4 – Complaints

	2010–11	2009–10	2008–09
MIGRATION REVIEW TRIBUNAL
Complaints resolved	13	18	21
Cases decided	6,577	7,580	5,767
Complaints per 1,000 cases	2	2.4	3.6
REFUGEE REVIEW TRIBUNAL
Complaints resolved	8	4	10
Cases decided	2,604	2,157	2,462
Complaints per 1,000 cases	3.1	1.9	4

The majority of complaints related to the conduct of the review process. Others were about the timeliness of the review or the decision. Following investigation, the tribunals formed the view that 2 of the complaints made during that year related to matters that could have been handled more appropriately.

Case 1 – Concerns were raised in relation to the quality of the hearing recording in an RRT matter. The tribunal wrote to the complainant acknowledging the specific concerns raised, including noise generated by a keyboard used by the member to make notes during the hearing. Steps were taken to improve the quality of hearing recordings in the tribunals by rearranging the position of recording equipment; testing better quality microphones; and trialling a number of different types of keyboards.

Case 2 – The applicant’s representative raised concern with the MRT about the significant delays in constituting the tribunal. The tribunal advised that there was a backlog of cases and that all possible steps were being taken to remedy the situation. The representative was also advised that if special circumstances existed, it was open to the applicant to request priority processing in accordance with the tribunals’ caseload and constitution policy.

Table 3.5 sets out the complaints made to the Commonwealth Ombudsman over the last 3 years and the outcomes of the complaints resolved.

Table 3.5 – Complaints to the Commonwealth Ombudsman

	2010–11	2009–10	2008–09
New complaints	26	19	28
Complaints resolved	24	18	32
Administrative deficiency found	0	0	1

MIGRATION AGENTS

More than 61% of applicants were represented. With limited exceptions, a person acting as a representative is required to be a registered migration agent. Registered migration agents are required to conduct themselves in accordance with a code of conduct. The tribunals referred 7 matters to the Office of the Migration Agents Registration Authority (OMARA) during 2010–11 relating to the conduct of migration agents. OMARA is responsible for the registration of migration agents, monitoring the conduct of registered migration agents and investigating complaints and taking disciplinary action against registered migration agents who breach the code of conduct or behave in an unprofessional or unethical way.

Community and interagency liaison

The tribunals hold regular community liaison meetings to exchange information with interested stakeholders. The meetings are attended by representatives of migration and refugee advocacy groups, migration agents associations, human rightsbodies, DIAC and other government agencies. The meetings discuss the tribunals’ procedures, caseloads and recent developments.

In 2010-11 the tribunals began sending monthly updates to people who attend these meetings. They include caseload reports and information on other issues of interest to community liaison members.

During Refugee Week in June 2011 the Refugee Review Tribunal held open days. The members and tribunal staff gave short presentations and conducted a mock hearing to give participants an insight into the work of the tribunal and how hearings are conducted.

The tribunals place great importance on maintaining regular contact with key stakeholders in migration, refugee and advocate organisations. The tribunals’ Stakeholder Engagement Plan, Improving Access to Justice, was developed in May 2010 and is available on the tribunals’ website.

Members and senior officers of the tribunals have continued to be active participants in several bodies, including the national and state chapters of the Council of Australasian Tribunals (COAT), the Australasian Institute of Judicial Administration (AIJA), the Australian Institute of Administrative Law (AIAL) and the International Association of Refugee Law Judges (IARLJ).

The tribunals also hold regular meetings with the Department. A Memorandum of Understanding between the tribunals and the Department reflects the statutory and operational relationships between the agencies.

In March 2011, the Principal Member gave a speech to the Law Council of Australia CPD Immigration Law Conference in Melbourne about the challenges in bringing the tribunals within mainstream administrative law. In April 2011 tribunal members attended the COAT Victoria Annual Conference “Eliciting Evidence” and in May 2011 tribunal members attended the COAT NSW Annual Conference “Being Accessible, Being Fair”. In June 2011 tribunal members attended the 14th Annual AIJA Tribunals Conference “Promoting Excellence”.

In March 2011, the Principal Registry in Sydney was pleased to host a visit from the Minister for Immigration and Citizenship, the Hon Chris Bowen MP. In June 2011 the Victorian Registry hosted a visit from the Parliamentary Secretary for Immigration and Citizenship, the Hon Senator Kate Lundy.

 

Major reviews

There were no major reviews in 2010–11.

Significant changes in the nature of functions or services

Significant reforms were made to the Freedom of Information Act 1982 which introduced a new Information Publication Scheme (IPS). The IPS commenced on 1 May 2011 and requires agencies to publish a broad range of information on their websites. The tribunals’ Information Publication Plan is published on the tribunals’ website.

Developments since the end of the year

There have been no significant developments since the end of the year.