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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.

Performance framework

The tribunals operate in a high volume decision making environment where the case law and legislation are complex and technical. The 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 are to meet these statutory objectives through the delivery of consistent, high quality reviews, and timely and lawful decisions.

Each review must 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.

For 2012-13, one outcome was specified in the Portfolio Budget Statement:

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 summarises performance against the program deliverables and key performance indicators that were set out in the Portfolio Budget Statement.

Table 3 – Performance information and results

Measure	Result
Deliverables
9,065 decisions	19,347 decisions
Key performance indicators
Less than 5% of tribunal decisions set-aside by judicial review	0.1% of MRT and 0.7% of RRT decisions made in 2012-13 were set-aside by judicial review
70% of cases decided within time standards	96% of bridging visa (detention) refusals were decided within seven working days 30% of protection visa refusals were decided within 90 calendar days 12% of visa cancellations were decided within 150 calendar days 47% of all other visa refusals were decided within 350 days
Less than five complaints per 1,000 cases decided	The tribunals received less than two complaints per 1,000 cases decided (33 complaints in total)
40% of decisions published	The tribunals published 24% of all decisions made in 2012-13 (4,783 decisions in total)

The timeliness of reviews has been affected by large increases in lodgements and cases on hand over the past few years, however, this began to improve at the end of 2012-13. This was a very pleasing result given that lodgements increased by 18% over the year.

The tribunals did not meet the target of publishing 40% of decisions, however, the number of decisions published compares with 4,546 in 2011-12 and 3,909 in 2010-11. In view of the much higher volume of decisions being made, the key performance indicator for decision publication has been revised for 2013-14 to at least 4,500. This will continue to ensure that a wide range of decisions are published.

A challenge in 2012-13 was balancing priorities across the different caseloads, which have grown significantly from previous years. The tribunals received 20,393 lodgements in 2012-13, an increase of 18% compared with 2011-12. In addition, 18,364 cases were carried over from 2011-12.

Financial performance

The MRT and the RRT are prescribed as a single agency, the ‘Migration Review Tribunal and Refugee Review Tribunal’ for the purposes of the FMA Act. The tribunals are funded based on a model which takes into account the number of cases decided. The tribunals’ base funding in 2012–13 covered deciding 9,065 cases, with the model providing for additional appropriation at a marginal cost per case rate. The tribunals decided 19,347 cases in 2012-13 and the revenue as set out below takes into account an adjustment to appropriation based on the actual number of cases decided.

Revenues from ordinary activities totalled $97.03 million and expenditure totalled $72.50 million, including depreciation worth $2.47 million, resulting in a net surplus for 2012-13 of $24.53 million. Included in revenue is $28.3 million transferred from the Department of Immigration and Citizenship as part of the Machinery of Government (MoG) transfer from the Department on 1 July 2012 of the remaining operations and staff of the Independent Protection Assessment Office (IPAO). This was a one-off transfer of appropriation as there was no funding for the IPAO beyond 2012-13, and ongoing staff costs are being managed within the MRT-RRT funding.

During the year, the tribunals funding model was reviewed which will see an increase in base funding for 2013–14 onwards from 9,065 to 18,000 cases to reflect the increase in lodgements over several years.

The tribunals administer application fees on behalf of the government. Details of administered revenue are set out in the financial statements. The financial statements for 2012–13, which are set out in part 5, have been audited by the Australian National Audit Office (ANAO) and received an unqualified audit opinion.

Overview of caseload

MRT and RRT caseload

The tribunals received 20,393 lodgements during the year, decided 19,347 cases and had 19,410 cases on hand at the end of the year. Table 4 provides an overview of the tribunals’ caseload over the past three years.

Table 4 – Overview of the tribunals’ caseload

	2012-13	2011-12	2010-11
MRT
On hand at start of year	16,863	10,786	7,048
Lodged	16,164	14,088	10,315
Decided	15,590	8,011	6,577
On hand at end of year	17,437	16,863	10,786
RRT
On hand at start of year	1,501	1,100	738
Lodged	4,229	3,205	2,966
Decided	3,757	2,804	2,604
On hand at end of year	1,973	1,501	1,100
TOTAL MRT AND RRT
On hand at start of year	18,364	11,886	7,786
Lodged	20,393	17,293	13,281
Decided	19,347	10,815	9,181
On hand at end of year	19,410	18,364	11,886

Additional statistical information regarding the MRT and RRT caseloads is provided in appendix A.

Independent Protection Assessment Office caseload

In addition to deciding tribunal reviews, the tribunals also took over administration of the remaining operations of the Independent Protection Assessment Office (IPAO) from 1 July 2012. This involved deciding 702 cases, with a recommendation favourable to the asylum seeker made in 68% of cases.

Over the life of the IPAO from 2008 to 2012, a total of 5,217 cases were completed by persons engaged as reviewers. Of these cases, a recommendation favourable to the asylum seeker was made in 74% of cases.

At the time of transfer of functions from the department on
1 July 2012, there were 87 active reviewers. All reviewer appointments expired on or before 31 December 2012.

Lodgements

The MRT has jurisdiction to review a wide range of visa, sponsorship and other decisions for migration and temporary entry visas. In 2012-13, the MRT received 16,164 lodgements which included significant increases in temporary work, family, permanent business and partner lodgements. Figure 1 provides an overview of MRT lodgements by case category.

Figure 1 – MRT lodgements by case category

The MRT’s jurisdiction to review decisions about 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. These cases are mainly in the permanent business, visitor, partner and family categories. In 2012-13, approximately 20% of visa refusal applications to the MRT were for persons outside Australia seeking a visa.

The RRT has jurisdiction to review decisions to refuse protection visas. In 2012-13 more than 5,000 protection visa applications were refused by a delegate of the Minister.

Nationals of five countries - Sri Lanka, China, Afghanistan, India and Pakistan – comprised 61% of all RRT lodgements

The RRT received 4,229 lodgements in 2012-13, which included 1,518 from unauthorised maritime arrivals. Lodgements related to persons from 107 countries. Nationals of five countries – Sri Lanka, China, Afghanistan, India and Pakistan – comprised 61% of all lodgements. The largest number of applications was from nationals of Sri Lanka, which made up 17% of the applications lodged. This is the first time since 2003-04 that China was not the country with the highest number of applications lodged and reflects the impact of lodgements from unauthorised maritime arrivals on the composition of the caseload.

Figures 2, 3 and 4 provide an overview of RRT lodgements by the applicant’s country of origin. Figure 2 includes all lodgements received by the RRT, while figure 3 displays the countries of unauthorised maritime arrivals only. Figure 4 displays the countries of all other RRT applicants (excluding unauthorised maritime arrivals).

Figure 2 – RRT lodgements by country

Figure 3 – RRT lodgements by country for unauthorised maritime arrivals

Figure 4 – RRT lodgements by country for applicants other than unauthorised maritime arrivals

Applicants to the tribunals tend to be located in the larger metropolitan areas. Thirty-seven per cent of all applicants resided in New South Wales, mostly in the Sydney region. Approximately 33% of applicants resided in Victoria, 12% in Queensland, 10% in Western Australia, 5% in South Australia, 1% each in the Australian Capital Territory and in the Northern Territory, and less than 1% in Tasmania. Over the past five years, the proportion of lodgements from New South Wales has decreased significantly – from 52% in 2007-08 to 37% in 2012-13. While much of the decrease in the proportion of lodgements in New Sout Wales has been taken up by Victoria, increases in the proportion of lodgements over the past five years have also occurred in Queensland, Western Australia and South Australia.

Cases involving applicants in immigration detention comprised 3.5% of the cases lodged.

Conduct of reviews

The proceedings of the tribunals are inquisitorial and 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.

In 2012-13, 11,281 MRT and 5,296 RRT hearings were arranged. Of these, 6,834 MRT and 3,675 RRT hearings were completed or adjourned. The remaining hearings were postponed or rescheduled or did not proceed as the applicant did not attend.

Cases where no hearing is arranged include those where a decision favourable to the applicant is made or the applicant withdraws prior to a hearing being arranged. Favourable decisions were made in 6% of MRT cases and in 2% of RRT cases without the need for a hearing.

Video links were used in 17% of MRT hearings and telephone in 2% of hearings. The average duration of MRT hearings was 63 minutes and the average duration of RRT hearings was 141 minutes. Two or more hearings were held in 11% of RRT cases and in 2% of MRT cases.

Interpreters

High quality interpreting services are fundamental to the work of the tribunals. In 2012-13, interpreters were required for 56% of MRT hearings and 89% of RRT hearings. Interpreters were required in approximately 94 languages and dialects, up from 84 the previous year.

The tribunals’ Interpreter Advisory Group (IAG), a national committee comprising members and staff, works to uphold best-practice interpreting at hearings.

Outcomes of reviews

Interpreters in 94 languages and dialects were used in tribunal hearings

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 set-aside and remitted, the primary decision in 29% of cases decided and affirmed the primary decision in 46% of cases decided. The remaining cases were either withdrawn by the applicant or were cases where the tribunal decided it had no jurisdiction to conduct the review. The set-aside rate in 2012-13 was significantly lower than the rate of 37% in 2011-12. One contributing factor was a lower set-aside rate for student and skilled refusals, which together comprised 53% of decisions made.

37% of RRT and 29% of MRT cases were decided in favour of the applicant

The RRT remitted the primary decision in 37% of cases decided and affirmed the primary decision in 59% of cases decided. The remaining cases were either withdrawn by the applicant or were cases where the tribunal decided it had no jurisdiction to conduct the review. The RRT remit rate was significantly higher than the rate of 27% in 2011-12. This is directly related to the unauthorised maritime arrival caseload for which the set-aside rate was 65%. Most unauthorised maritime arrivals came from countries where there are generally high rates of acceptance of claims at both the primary and review level.

Most RRT remittals were on the basis that the applicant was a refugee. There were also 63 cases remitted with a direction that the applicant met the complementary protection criterion.

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 based on the information available at the time of the decision.

Applications 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. There may also be court judgments or legislative changes which affect the outcome of the review. Applicants were represented in 64% of cases decided. 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 more notable for RRT cases, where the set-aside rate was 47% for represented applicants and 11% for unrepresented applicants. All unauthorised maritime arrival applicants have been offered representation at primary and review stages through the government-funded Immigration Advice and Application Assistance Scheme (IAAAS) and this caseload has a higher set-aside rate than other caseloads. Unrepresented applicants may not have sought advice on their prospects of success before applying for review or may have applied despite obtaining advice that the prospects of success were low. Only 66% of unrepresented applicants to the RRT attend hearings, compared to almost 87% of represented applicants. For the MRT, there was also a significant difference in outcome for unrepresented applicants. The set-aside rate was 33% for represented applicants and 22% for unrepresented applicants.

A total of 314 cases (approximately 2% of the cases decided) were referred to the department 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

Cases are allocated to members in accordance with legislation and directions regarding the order in which cases are to be dealt with. Depending on available member capacity and lodgements, this may mean that not all cases can be quickly allocated to a member. Following allocation of a case, members are expected to promptly identify the relevant issues and the course of action necessary to enable the review to be conducted as effectively and efficiently as possible. Senior members manage their teams’ caseloads to achieve tribunal decision and timeliness targets, including by monitoring older and priority cases to minimise unnecessary delays, and managing member performance. Figure 5 displays the percentage of cases decided within the tribunals’ time standards over the past three years.

Figure 5 – Percentage of cases decided within time standards

Some cases cannot be decided within the time standards. These include cases where hearings need to be rescheduled because of illness or because an interpreter is not available, cases where the applicant requests further time to comment or respond to information, cases where new information becomes available, and cases where information or an assessment needs to be obtained from another body or agency. In the early months of processing unauthorised maritime arrival cases, there were additional difficulties associated with arranging hearings for applicants in immigration detention or without a stable residential address and contact information.

The timeliness of reviews has been affected by large increases in lodgements and cases on hand over the past few years, however, this began to improve at the end of 2012-13. This was a very pleasing result given that lodgements increased by 18% over the year.

The Principal Member reports every four months on the RRT’s compliance with the 90 day standard for RRT reviews. These reports are provided to the Minister for tabling in Parliament. In 2012-13, only 30% of RRT cases were decided within 90 days; the average time to decision was 159 days.

In 2013-14, the tribunals will continue to focus on increasing productivity through member specialisation, the use of hearing lists for less complex cases, changes in decision writing and other measures designed to enhance efficiency.

Judicial review

For persons wishing to challenge a tribunal decision, two avenues of judicial review are available. One is to the Federal Circuit Court, formerly the Federal Magistrates Court, and the other is to the High Court. 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 the 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, consistent with the principle that an administrative tribunal should generally not be an active party in judicial proceedings challenging its decisions.

In 2012-13 the number of tribunal decisions taken to judicial review increased significantly in comparison with previous years, reflecting the larger number of decisions made by the tribunals during 2012-13. However the percentage of decisions taken to judicial review, while fluctuating over recent years, remains
broadly consistent.

Less than 1% of tribunal decisions made in 2012-13 have been set-aside or quashed by the courts

Of all decisions made by the tribunals in 2012-13, only a small percentage (0.1% of MRT decisions and 0.7% of RRT decisions) have been set-aside or quashed by the courts. 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 (which may be constituted by the same or 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 43% of MRT cases and 29% of RRT cases reconsidered in 2012-13, the reconstituted tribunal made a decision favourable to the applicant.

Table 5 sets out judicial review applications and outcomes for the tribunal decisions made over the last three years. It displays 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.

Table 5 – Judicial review applications and outcomes

	MRT			RRT
	2012-13	2011-12	2010-11	2012-13	2011-12	2010-11
Tribunal decisions	15,590	8,011	6,577	3,757	2,804	2,604
Court applications	653	261	255	743	698	541
% of tribunals decisions	4.2%	3.3%	3.9%	19.8%	24.9%	20.8%
Applications resolved	196	242	252	201	618	537
– decision upheld or otherwise resolved	174	205	219	176	545	497
– set-aside by consent or judgement	22	37	33	25	73	40
– set-aside decisions as % of judicial applications resolved	11.2%	15.3%	13.1%	12.4%	11.8%	7.4%
– set-aside decisions as % of total tribunal decisions made	0.1%	0.5%	0.5%	0.7%	2.6%	1.5%

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 against a case that was previously counted as completed.

Notable judicial decisions

Summaries of some notable judicial decisions since 1 July 2012 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 regarding 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.

Completion of review function

The RRT affirmed the decision of a delegate of the Minister not to grant the visa applicant a protection visa. The RRT completed the decision at 2:32 pm on 27 July 2011 and, in accordance with its internal processes, alerted the registry that the decision was ready for release to the applicant and the department. At 4:57 pm, the applicant’s adviser faxed further submissions. Between 4:57 pm and 6:34 pm, when the decision was notified to the applicant’s advisers by fax, the submissions were considered and the presiding member decided that there was no jurisdictional error and the case could not be reopened. On appeal, the Full Federal Court held the tribunal was not functus officio, that is, it had not completed its function, until the decision was ‘beyond recall’. The court said that there was no support in the evidence or in any of the statutory provisions to suggest that it was beyond the power of the member to recall the decision prior to its dispatch. It held that the RRT erred in concluding that it was prevented from considering further material unless it was established there had been a jurisdictional error in making the decision. [MIAC v SZQOY [2012] FCAFC 131].

Notification of decision

The RRT affirmed a decision not to grant the visa applicant a protection visa before the complementary protection provisions came into effect on 24 March 2012 and sent a copy of its decision to the applicant at his former address in Sydney, as well as to the department. The Sydney address was not the applicant’s last residential address provided to the RRT in connection with the review and the RRT did not send a copy of its decision to the correct address until after the complementary protection provisions had come into effect. The Federal Circuit Court held that the RRT had not notified the applicant in accordance with the notification provisions before 24 March 2012. Therefore, the application for review had not been ‘finally determined’ at that
date, and the RRT fell into jurisdictional error by failing to consider the complementary protection grounds. [SZRNY v MIAC [2013] FCCA 197].

Complementary protection and standard of state protection

The Minister appealed from an RRT decision finding that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there was a real risk that he would suffer significant harm. In finding that there was a real risk that the visa applicant would suffer significant harm in the receiving country, the RRT found that the visa applicant could not obtain from an authority in the receiving country protection such that there would not be a real risk that he would suffer significant harm if he was returned there. The RRT found that section 36(2B)(b) of the Act required a standard of protection different from the concept of state protection under the Refugees Convention. The Full Federal Court held that this was correct. It held that the section requires an assessment of whether the level of protection offered by the receiving country reduces the risk of significant harm to the non-citizen to something less than a real one. [MIAC v MZYYL [2012] FCAFC 147]

Complementary protection and significant harm

The applicant applied for a protection visa after the cancellation of his Subclass 444 (Special Category) visa, which he had held for over 15 years. He claimed that he wanted to remain in Australia to be with his five children, that he feared harm from his father and from gangs in New Zealand and that he would be unable to find a job or accommodation in New Zealand. In affirming the delegate’s refusal decision, the RRT made a number of findings dealing with the risk of violence from the applicant’s father and from gangs, and about his capacity to obtain accommodation and employment in New Zealand. Before the court the applicant claimed that the RRT had failed to give meaningful consideration to whether the separation of the applicant from his children might constitute degrading treatment. The Federal Magistrates Court held that the act of removal resulting in forced separation from children residing in Australia, or the ongoing effect of that separation in New Zealand, did not constitute significant harm, and in particular degrading treatment. It said that any harm stemming from the applicant’s separation from his children in Australia stemmed from his removal from Australia, not his presence in any other country, and the relevant act in the definition of degrading treatment cannot be the act of removal itself. [SZRSN v MIAC [2013] FMCA 78].

Reasonableness of refusal of request for adjournment

The applicant was an overseas student seeking to gain residency through a skilled visa. The visa was not granted on the basis that she had provided false information in support of a skills assessment as a cook by Trades Recognition Australia. The applicant had obtained a second but unfavourable skills assessment by the time of the MRT hearing, and was in the process of seeking a review of that assessment from Trades Recognition Australia. The applicant requested the MRT to
adjourn the review pending the outcome of that consideration. The MRT did not agree to this and made a decision noting only that the applicant had been provided with enough opportunities to present her case and it was not prepared to delay any further. On appeal from the Full Federal Court, the High Court held that the MRT had not given adequate consideration to the request for adjournment, such requests needing to be considered reasonably. [MIAC v Li [2013] HCA 18].

Skills assessment and relevant assessing authority

The applicant was an overseas student seeking to gain residency through a skilled visa. The applicant had obtained a skills assessment as a cook by Trades Recognition Australia but this assessment had subsequently been revoked on the basis of concerns about the evidence provided about work experience. Before the MRT there was the question of whether the applicant would seek another skills assessment. However, the applicant argued that Trades Recognition Australia had not been correctly authorised at the time of its assessment. The MRT determined that Trades Recognition Australia was authorised at the time of the MRT’s decision, and affirmed the primary decision on the basis that the applicant did not at time of decision have a skills assessment by the relevant assessing authority. The Federal Magistrates Court upheld the MRT’s decision, finding that Trades Recognition Australia was validly specified at the time of the MRT’s decision as the relevant assessing authority. The court held that the Minister’s authorisation did not purport to take effect before the date it was registered; however, it nonetheless applied to future decisions for visa applications that had been made before that date. [Zhang v MIAC [2012] FMCA 1011].

Social justice and equity

The tribunals’ service charter expresses the commitment to providing a professional and courteous service to applicants and when dealing with other persons. 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. The service charter is available in Arabic, Bengali, Chinese, English, Hindi, Korean, Nepali, Punjabi, Tamil, Turkish and Vietnamese.

In July and August 2012 the tribunals engaged Buchan Consulting to survey applicants, interpreters and migration agents. The survey allowed the tribunals to gauge perceptions of its performance across a range of criteria and assist future strategic planning. The survey obtained the views of 340 applicants whose cases had been decided, 232 migration agents and 389 interpreters. The results of the survey were positive. High levels of service from staff and members, and positive reports about the overall review process were areas where the tribunals are performing well across all surveyed groups.

Table 6 sets out the tribunals’ performance during the year against service standards contained in the service charter.

Table 6 – Report against service standards

Service standard	Report against standard for 2012-13	Outcome
1. Be helpful, prompt and respectful when we deal with you	All new 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 68% of hearings held (56% MRT and 89% RRT). The tribunals employ staff from diverse backgrounds covering more than 20 languages. Staff use professional interpreters to communicate with clients from non-English speaking backgrounds in hearings. The Stakeholder Engagement Plan for 2012-14 sets out how the tribunals will engage with stakeholders and the engagement activities planned for 2012-14 and beyond. Community liaison meetings were held twice during 2012-13 in Adelaide, Brisbane, Melbourne, Perth and Sydney. The tribunals have a formal complaints, compliments and suggestions process.	Achieved
4. Acknowledge applications for review in writing within two working days	An acknowledgement letter was sent within two working days of lodgement in more than 74% of cases.	74%
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 website includes a significant amount of information, including forms and factsheets. Case officers are available in the New South Wales and Victoria registries to explain procedures over the counter or by telephone. The tribunals have an email enquiry address that applicants can use to seek general information about procedures.	Achieved
7. Provide information about where you can get advice and assistance	The 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 application forms R1, M1 and M2 explain in 28 community languages how applicants may contact the Translating and Interpreting Service (TIS).	Achieved
8. Attempt to assist you if you have special needs	The tribunals employ a range of strategies to assist applicants with special needs. All 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 conference. A national enquiry number 1300 361 969 is available from anywhere in Australia (calls are charged at the cost of a local call, more 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 applicant and to the department.	Achieved
10. Publish guidelines relating to the priority we give to particular cases	Guidelines for the priority to be given to particular cases are published in the annual caseload and constitution policy, which is available on the 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 (APS) 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.	Achieved
14. Publish information on caseload and tribunal performance	Information about caseload and performance in the current and previous financial years is published on the website under ‘statistics’. Further statistics, including those on the judicial review of tribunal decisions, are available in annual reports.	Achieved

A high proportion of applicants 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 tribunal procedures and processes.

The tribunal 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 Strategic Plan, the Member Code of Conduct, the Interpreters’ Handbook and Principal Member directions as to the conduct of reviews. The ‘representatives’ webpage is aimed specifically at supporting representatives, by bringing together the most often used resources and information. A ‘frequently asked questions’ page answers questions most commonly asked by representatives.

The tribunals have offices in Melbourne and Sydney which are open between 8.30 am and 5.00 pm on working days. The tribunals have an arrangement with the AAT for counter services and hearings at AAT offices in Adelaide, Brisbane 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, more from mobile telephones). Persons who need the assistance of an interpreter can contact the Translating and Interpreting Service on 131 450 for the cost of a local call.

The tribunals have a Reconciliation Action Plan, an Agency Multicultural Plan and a Workplace Diversity Program. Further information about these strategies and plans is set out in part 4.

Complaints

The 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 ‘conduct of reviews’ page on
the website.

Most complaints to the tribunals are handled informally at the local level, which is consistent as most organisations dealing with the public. Formal complaints are handled in accordance with the tribunals’ complaints policy. Formal complaints are always in writing. Complaints about tribunal members are dealt with by the Principal Member. Complaints about staff or other matters are dealt with by the Registrar.

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.

Alternatively, a person can make a complaint to the Commonwealth Ombudsman, although the Ombudsman will not usually investigate a complaint that has not first been raised with the relevant agency.

The tribunals will acknowledge receipt of a complaint within five working days and aim to provide a final response within 20 working days of receipt of the complaint. The length of time before a final response depends on the extent of investigation which is necessary. If more time is required, because of the complexity of the complaint or the need to consult with other persons before providing a response, the tribunal will advise the complainant of progress in handling the complaint.

If a complaint is upheld, possible responses include an apology, a change to practice and procedure, or consideration of additional training and development for tribunal personnel.

During 2012-13, the tribunals received a total of 33 complaints from 29 individuals (23 from representatives, four from applicants and two from third parties). Table 7 shows the number of complaints made over the last three years.

Table 7 – Complaints finalised

	2012-13	2011-12	2010-11
MRT
Complaints resolved	23	10	13
Cases decided	15,590	8,011	6,577
Complaints per 1,000 cases	1.5	1.2	2
RRT
Complaints resolved	10	8	8
Cases decided	3,757	2,804	2,604
Complaints per 1,000 cases	2.7	2.8	3.1

The 33 complaints made in 2012-13 were about the issues shown in table 8. A number of complaints raised multiple issues.

Table 8 – Issues raised in complaints to the tribunals

Issue	MRT complaints	RRT complaints
Application of tribunal policy	2	1
Breach of privacy	-	2
Conduct of other parties in tribunal proceedings	1	-
Conduct of tribunal members	18	4
General procedural issues	1	1
Publication of decisions on the internet	-	2
Timeliness of reviews	2	1
Tribunal decisions	1	2

The tribunals provided substantive responses to all 33 complaints, responding within 20 working days to 30 of the complaints (91%). The average number of days from complaint to final response was 10 working days.

Less than two complaints were received per 1,000 cases decided

In four complaints, all concerning the conduct of members during hearings, it was found that the members should have handled matters more appropriately. The Principal Member offered an apology in each case and raised the matters with the relevant members.

Table 9 sets out the complaints made to the Commonwealth Ombudsman over the last three years and the outcomes of the complaints resolved.

Table 9 – Complaints to the Commonwealth Ombudsman

	2012-13	2011-12	2010-11
New complaints	1	1	26
Complaints resolved	1	1	24
Administrative deficiency found	0	0	0

Migration Agents

Sixty-four per cent of applicants were represented in 2012-13. 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 three matters to the Office of the Migration Agents Registration Authority (OMARA) during 2012-13 regarding the conduct of migration agents. OMARA is responsible for the registration of migration agents, monitoring the conduct of registered migration agents, 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 maintain regular engagement with a number of bodies with an interest in refugee and migration law, tribunal outcomes and merits review. The Stakeholder Engagement Committee oversees engagement and communication with external stakeholders. The Stakeholder Engagement Plan outlines the principles for engaging with clients and stakeholders, and strategies to support and improve communication and services.

137 people attended community liaison meetings in 2012-13

Twice-yearly community liaison meetings are held in Melbourne, Sydney, Brisbane, Adelaide and Perth to exchange information with key stakeholders. At community liaison meetings, updates are provided on legislative and corporate developments and attendees can raise matters that arise out of their dealings with the tribunals. The meetings are attended by representatives of migration and refugee advocacy groups, legal and migration agent associations, human rights bodies, the department and other government agencies.

The tribunals hold ‘open days’ or public information sessions each year. In 2013 MRT information sessions were held in Adelaide, Melbourne and Sydney during Law Week in May, and RRT information sessions were held in Brisbane, Melbourne, Perth and Sydney during Refugee Week in June. Information sessions involve hearing demonstrations and presentations from tribunal members and staff on processes and caseloads. These events are an opportunity for the public to get a better understanding of tribunal operations. There was a strong turnout at all events and positive feedback from those who attended. Due to a high demand for places, additional RRT sessions were also provided for the Australian Red Cross in Brisbane.

Regular meetings are held with the department, the Department of Foreign Affairs and Trade and the AAT. Memoranda of understanding between the tribunals and these organisations reflect the statutory and operational relationships between the agencies.

Members and staff have continued to be active participants in several bodies, including the national and state chapters of the Council of Australasian Tribunals, the Australasian Institute of Judicial Administration, the Australian Institute of Administrative Law and the International Association of Refugee Law Judges.

Members and staff presented on the work of the tribunals at several events in 2012-13. In September 2012, the Deputy Principal Member spoke at the Migration Institute of Australia 2012 Conference on effective representation of clients before the tribunals. In March 2013, the Principal Member gave a presentation on current challenges for the RRT at the International Association of Refugee Law Judges Australasian Chapter Regional Conference. Both the Principal Member and Deputy Principal Member gave presentations as part of the Law Institute of Victoria Human Rights Series in May 2013. Significant speeches and presentations given by members and staff are published on the website.

Major reviews

Review of the increased workload of the tribunals

In December 2011, the former Minister the Hon Chris Bowen MP commissioned Professor the Hon Michael Lavarch, AO, to undertake a review of the increased workload of the tribunals. The review examined the increase in lodgements to both tribunals, including anticipated lodgements from unauthorised maritime arrivals. Minister Bowen released the Report on the increased workload of the MRT and the RRT on 29 June 2012 and supported the 18 recommendations.

All recommendations regarding the tribunals’ case management practices, member specialisation, staffing support and member resources have now been implemented. The tribunals and the department are working together to progress the implementation of the remaining recommendations that require legislative amendment or cooperation with the department.

Review of refugee status determination

In 2013, the government commenced a review of the refugee status determination system. The tribunals made available a highly experienced and knowledgeable senior member of staff to support the review. In addition the tribunals made a number of suggestions for improvements which would lead to more efficient and consistent merits review of refugee decisions.

Capability reviews

No capability reviews were undertaken for the tribunals during 2012-13.

 

Significant changes in the nature of functions or services

Transfer of Independent Protection Assessment Office functions

On 1 July 2012, the functions and resources of the office were transferred to the tribunals through a machinery-of-government change. As part of the transfer of functions, 52 ongoing public service staff were transferred from the department to the tribunals under section 72 of the Public Service Act.

Developments since the end of the year

Victoria Registry relocation

On 15 July 2013, the Victoria Registry relocated to new premises in the Melbourne central business district. The new premises has more hearing rooms, including purpose built video conference hearing rooms, and is located conveniently for applicants near major public transport links.

Country of origin information

On 1 July 2013, the tribunals’ country of origin information functions and staff formally transferred to the department. The change was effected through a machinery-of-government process. Country of origin information services will be provided to the tribunals by the department via a service level agreement that will govern the provision of products and services.