5.1
While the Administrative Appeals Tribunal (AAT) conducts merits reviews on a broad range of matters, the Migration and Refugee Division (MRD) is its largest Division. It is therefore not surprising that the committee received a significant amount of evidence in relation to the MRD, expressing concerns about the functioning of this Division and the impact of its operation on the lives of applicants.
5.2
This chapter considers the evidence put forward regarding the MRD, including its performance outcomes, the adequacy of the number of members, and the legislative constraints on the MRD resulting from the 2015 merger (as detailed in Chapter 1).
5.3
The chapter also considers the operation of the Immigration Assessment Authority (IAA), and the significant concerns raised about its lack of procedural fairness, inefficiencies and limitations on introducing new evidence as part of the IAA process.
Migration and Refugee Division
5.4
The AAT's 2020–21 Annual Report explained the role and function of the MRD, as reviewing decisions made under the Migration Act 1958 (Migration Act) relating to:
… a wide range of visas that permit non-citizens to travel to, enter and remain in Australia on a permanent or temporary basis. They include decisions to refuse to grant visas, and to cancel visas, as well as related decisions to refuse to approve business sponsors, nominated positions and business activities. Many of these decisions impact on Australian citizens, permanent residents or businesses. Delegates of the Minister administering the Migration Act generally make the decisions that are reviewable in the Division.
5.5
The MRD is the largest AAT Division, with 'more lodgements and finalisations than the other divisions combined'. The AAT advised that because of this, the head of the MRD is supported by 'both national Practice Leaders and Executive Members in most states and the ACT'. The AAT's 2020–21 Annual Report advises that:
The vast majority of refugee applications were for review of a decision to refuse to grant a protection visa. This generally requires the Tribunal to consider whether the applicant is a person in respect of whom Australia has protection obligations: whether they are a refugee or, in the alternative, entitled to complementary protection.
5.6
In terms of performance, the AAT submitted that since amalgamation in 2015, the MRD had 'increased its finalisations significantly' through the adoption of 'new senior management structure[s] and innovative case management practices'. The AAT observed that since 2015, the MRD had finalised 'close to 29 000 applications relating to protection visas compared to just under 20 000 in the 6 years prior to amalgamation'.
MRD workload
5.7
Notwithstanding some improvements to case finalisations, the AAT's most recent Annual Report made clear that in the five years prior to 2020–21, the MRD had 'received sustained, high levels of lodgements relating to decisions about protection (refugee) visas, without a commensurate increase in member resources', resulting in a 'gradual but substantial' increase in cases on hand in the MRD.
5.8
This was echoed by the 2021–22 Portfolio Budget Statement for the AAT, where it was observed that:
The AAT's workload increased significantly from 2016–17, particularly applications for review of migration and refugee decisions. The rate of finalising cases did not keep pace with the higher volume of lodgements, resulting in considerable growth over time in the number of cases on hand. A decrease in the incoming workload as a result of the COVID-19 pandemic has allowed the AAT to achieve a modest reduction in the on‑hand caseload, but it remains substantial.
5.9
Ms Sobet Haddad, a Senior Reviewer with the AAT, explained that there were 'complex arrangements for the processing and prioritising of cases' within the MRD. Applicants could make a request for prioritisation, 'which will be considered', and the Division also had an 'early case assessment team that looks at how [the MRD] can prioritise and process and get cases that are suitable to members as quickly as possible'.
5.10
Despite these processes, the AAT drew attention to the impact of insufficient funding and appointments on its performance within the MRD.
5.11
Since amalgamation in 2015 and as of November 2021, the MRD had received over 172 000 lodgements—exceeding the 18 000 lodgements anticipated by its base funding. This increase in workload was accompanied by a fluctuation in members, with 151 members in the MRD in 2016–17 decreasing to a low of 125 in 2017–18. As of 31 October 2021, there were 151 active members in the MRD.
5.12
The AAT made the point that 'decisions relating to appointments, including the number, level and location, are ultimately a matter for the Government', but noted that these decisions 'impact on the AAT's ability to deliver services and meet case finalisation targets'.
Funding
5.13
During Additional Estimates 2021–22, the Attorney-General's Department advised that some additional funding had been provided in the 2021–22 Budget, with $54.8 million over the forward estimates provided in additional funding to 'address the backlog of migration matters'. As part of that funding, $18.9 million was to 'help support' the MRD with its caseload (with other funding allocated to the Federal Court).
5.14
Despite this allocation, the Law Council of Australia (Law Council) submitted that government policies to address the backlog in MRD have not been successful, and that there was insufficient funding for the likely rise in applications to the MRD following COVID‑19. The Law Council called for a significant increase in the resources allocated to the AAT 'on a permanent basis to bolster its ability to efficiently process migration applications'.
Applications and case management
5.15
During the 2020–21 financial year, the MRD finalised 23 246 cases, including finalisations in the refugee caseload and reducing the backlog in business and student visa caseloads, 'by approximately a third and two thirds respectively'.
5.16
The AAT has since published information for the 2021–22 financial year, to date.
5.17
For the period commencing 1 July 2021 and ending on 28 February 2022, the MRD had a total of 56 845 cases on hand (out of 67 909 for the AAT more broadly). As of 28 February 2022, the proportion of MRD applications finalised within 12 months of lodgement was only 20 per cent, with a median finalisation time of 108 weeks (107 weeks for migration matters, and 116 weeks for refugee matters).
5.18
The Law Council provided a detailed breakdown on applications before the MRD during 2020–21 and their progress:
In 2020-21 alone, migration and refugee matters made up 43 per cent of the AAT's new applications, 52 per cent of finalised applications, and 86 per cent of 'on hand' (or undecided) matters. The backlog of migration and refugee matters in the AAT has increased significantly, from 16,764 at the end of 2015-16 to 63,305 at the end of 2019-20, before dropping to 56,036 in 2020-21.
In each of the years between 2015-16 and 2019-20, the number of applications lodged was greater than the number decided. In 2020-21, the number of applications dropped considerably due to the impact of COVID-19, which enabled the AAT to make some inroads into the backlog. However, there is reason to believe that this progress is temporary.
5.19
While likewise acknowledging the backlog addressed during the pandemic, the United Nations High Commissioner for Refugees (UNHCR) observed that by focusing on the less complex MRD cases which could be finalised without hearings (or through remote hearings), the MRD has now been left with a 'more complex and aged backlog of cases on hand, which is likely to present significant challenges for the years ahead'. The UNHCR submitted that these cases 'tend to become more complicated and time consuming as waiting times are progressively extended'.
Delays in case completion
5.20
The volume of cases has resulted in significant backlogs, a decrease in timeliness and increased processing times, as highlighted by the AAT in the following performance outcomes for the 2020–21 reporting period:
the percentage of cases finalised within 12 months was 20 per cent in 2020–21 (down from 66 per cent in 2016–17);
the median processing time from lodgement to decision for cases finalised in 2020–21 was 99 weeks (an increase from 40 weeks in 2016–17); and
the median time for protection visa cases finalised in 2020–21 was 104 weeks.
5.21
The Law Council expressed significant concerns about the rate of finalisation of matters before the MRD, providing the following details:
According to the AAT website, the average time taken to resolve a protection visa matter between 1 May 2021 and 31 October 2021 was 1,077 days – almost three years.
In 2020-21, the AAT did not meet performance measures set down in its corporate plan regarding the number of AAT applications and IAA referrals finalised and the proportion of such matters finalised within a time standard.
5.22
Based on the 2020–21 and 2021–22 statistics (to date), it is clear that there are significant delays and backlog in the finalisation of cases before the MRD, and the proportion of applications being finalised has stagnated at around 20 per cent.
5.23
Submitters were of the view that the framework for considering matters in the MRD, along with the accumulation of cases and the subsequent case management processes of the MRD, were not effective.
5.24
The Law Council explained that the accumulation of cases in the MRD was causing significant delays for practitioners and clients, with evidence from the Law Institute of Victoria (LIV) to the Law Council suggesting that 'remittals from the court which are usually afforded priority are still taking over a year to be constituted', creating even longer waits for outcomes.
5.25
Legal Aid NSW suggested the lengthy completion times for MRD matters 'impacts on the integrity of the AAT in terms of meeting community expectations of standards of service and accessibility'. It further posited that the large backlog of protection visa applications was problematic, and outlined the impact on applicants:
Applicants have no indication of when the case will be heard. Circumstances in the countries of origin can frequently change, and the delay can result in difficulties at hearings due to issues such as applicants trying to give evidence of matters which may have occurred many years ago where their memory is affected by torture and trauma.
Similarly, in our experience the delay in determining partner visa cases where there is a claim of domestic violence has the potential to cause extreme hardship to women, especially those who have no right to income support.
5.26
The Refugee Council of Australia (RCA) also made the point that the number of cases before the MRD did not consider the 'backlog of protection visas currently on hand with the Department of Home Affairs', and noted that as of October 2021, there were 31 620 applications for onshore protection visas awaiting a decision by the Department.
5.27
A similar point was made by the UNHCR, which noted that the number of applications lodged at the AAT was 'unlikely to significantly decrease in the foreseeable future', because of:
… the gradual easing of worldwide travel restrictions related to the COVID-19 pandemic and the rise in the number of people forcibly displaced due to persecution, conflict, violence, human rights violations and events seriously disturbing public order.
5.28
The UNHCR further remarked that backlogs, if unaddressed, have implications for the organisational culture for bodies like the AAT who engage with refugee status determinations. The UNHCR said that:
… with increasing pressure and a seemingly insurmountable backlog, turnover is common, and staff are more likely to be demotivated, contributing to reductions in productivity and quality of decision-making, which is likely to further increase the backlog.
5.29
The delays in finalisation of cases could be significant, with direct impacts on the lives of applicants. The RCA, for instance, suggested that at the current clearance rate of cases it would 'take over five years to get through the existing backlog of applications, not accounting for further applications'. Further, at the rate the Department is processing initial applications for permanent protection visas, it would 'take two years to process these initial permanent protection claims'. The RCA therefore concluded that a person applying for such a protection visa 'may have to wait seven years for an outcome on their protection visa application'. The RCA asserted that:
This demonstrates a completely dysfunctional review system and contributes to significant distress and uncertainty for applicants. Failure to address these delays leaves these people in a very precarious situation. For many, their visa status will preclude them from access to Medicare and many will have no work rights. …. Delays also mean that those who are not entitled to stay in the country can stay for extended periods while they are waiting for a decision, creating an incentive to lodge weak claims.
5.30
In addition to these concerns, the Australian Human Rights Commission (AHRC) stated that it has 'longstanding concerns' about the significant limitations on the review of decisions made under the Migration Act, outlining three key points:
(i)
Asylum seekers who are part of the 'legacy caseload' may only seek review of decisions to refuse them protection visas in the IAA (discussed below), which provides them with significantly fewer review rights than ordinary merits review.
(ii)
There are broad discretions available to Ministers to make decisions that are not reviewable in the AAT and to overturn decisions of the AAT that they disagree with.
(iii)
The administrative law grounds on which migration decisions may be reviewed by a court have long been narrower than the grounds available for ordinary government decision making.
Response of the AAT
5.31
At Additional Budget Estimates 2021–22, Mr Jamie Crew, Acting Registrar of the AAT, responded to questions about the lengthy delays facing applicants before the MRD. Mr Crew explained that the 'amount of time its taking is purely related to the number of matters'. By way of example, Mr Crew advised that:
… the cases on hand in the division at the end of 2021-22, at 31 December 2021, were 57,201. My understanding is that the work in the division has doubled since the amalgamation of the tribunal back in 2015, and it has remained at consistently high levels from 2017.
5.32
Ms Haddad, Senior Reviewer with the AAT, argued that the caseloads within the Division 'completely depend' on the processing priorities within the Department of Home Affairs. Ms Haddad further pointed out that the 'number of members of the Tribunal has increased over time, but not proportionally in line with the increase in applications', and that funding to the MRD has remained at similar levels for a six-year period.
5.33
In its submission, the AAT also pointed to the finalisation of business, work and student visa reviews within the MRD as being more successful, providing the following statistics:
In the last 3 years, the Division has finalised over 18,000 applications relating to business/work visas which is more than the combined total of finalisations for these cases in the 9 years prior to amalgamation. There have been similar successes in the student caseload over the last 3 years, where the Division focussed surge resourcing to meet record-high lodgements, with around 18,000 student visa refusal reviews finalised. This is similar to the number finalised in the 9 years prior to amalgamation. Despite the COVID-19 pandemic, over the last 2 years the Division has been able to reduce the backlog of cancellation cases, which are priority cases and generally more complex, by 65%.
Immigration detention
5.34
The AAT's General Division considers visa refusals and cancellation matters, made on the basis of the character test in section 501 of the Migration Act. The Law Council advised that:
… other materials which apply to cases dealt with in the MRD of the AAT provide for special hearing arrangements for persons in detention and provide guidance for dealing with vulnerable persons in immigration detention. Notably, none of this material applies to matters in IAA nor to matters in the AAT's General Division.
5.35
Further, the Law Council drew attention to the Migration Regulations 1994 (the Regulations), which require the MRD to undertake its review into migration cases where the applicant is in immigration detention, 'immediately upon receipt of the application'. The MRD must then:
… give notice of its decision in respect of such an application as soon as practicable. The Migration Regulations do not impose that requirement on the MRD of the AAT in refugee matters.
5.36
The Law Council suggested that the experience of practitioners indicated these prioritisation requirements were not always complied with, and that the AAT's annual reports do not include information about resolution timeframes for immigration detention matters.
5.37
Turning to other issues with immigration detention matters, the Law Council encouraged the IAA and the AAT to implement directions enabling applicants to attend their hearings in person and be entitled to continuity in their detention prior to their hearings, to avoid clients being transferred right before, or in the weeks prior to, their hearings. The Law Council put forward evidence highlighting the negative impact of these practices:
In the experience of practitioners, these transfers often involve excessive use of force, and are traumatic and unsettling for applicants, and interfere with their ability to calmly prepare for their cases and have contact with their lawyers in those important lead-up weeks when all the evidence and submissions are due.
5.38
The Law Council put forward several arguments for why it was preferable to resolve these merits review matters as promptly as possible. It noted that while the AAT gives the highest priority to constituting and processing matters where applicants are in immigration detention, if the backlog of cases lengthens then 'so does the time taken to resolve matters where the applicant is in detention and this is highly undesirable'—especially when refugee matters become more complex as time passes and the 'conditions in the relevant country evolve'.
5.39
The Law Council continued that prompt resolutions allow applicants to be granted visas and therefore benefit from the rights of that visa. The Law Council said that more broadly, the earliest resolution of matters before the MRD:
… would also afford earlier immigration status certainty to AAT users, thereby reducing the prospect of those in Australia from having to enter into or remain in exploitative personal and employment arrangements while their immigration status is being resolved.
Insufficient members in the MRD
5.40
In regard to the number of members available to the MRD, the AAT stated:
… since amalgamation of the AAT in 2015 the Migration & Refugee Division has received over 172,000 lodgments which is well over the 18,000 lodgments per year envisioned in its base funding. While its workload has increased dramatically over this period, its membership has fluctuated from a high of 151 members in 2016–17 to a low of 125 members in 2017–18. As at 31 October 2021, there were 151 active members working in the Migration & Refugee Division.
5.41
The 2018 Callinan Report drew attention to the deficiency of members in the MRD and stated that this should be 'immediately addressed by the appointment of no fewer than 15 to 30 Members, some only of whom should be part-time Members.'
5.42
Many submitters likewise made the point that the MRD was not sufficiently resourced to deal with its significant volume of legacy and new cases.
5.43
For instance, the Refugee Advice and Casework Service (RACS) said that in its experiences since 2015, it had become 'increasingly common' for applicants before the MRD to be waiting for a hearing for between two and four years.
5.44
Legal Aid NSW also expressed the view that there was inadequate resourcing of the AAT to deal with MRD matters and particularly an insufficient number of members to deal with the caseload. It encouraged the appointment of more members, saying:
Legal Aid NSW supports the appointment of a greater number of appropriately qualified members to address the issue. The appointment of acting members may also be a viable solution to address the difficulties. The appointment of Tribunal members in any capacity must be accompanied by a rigorous selection process based on merit.
5.45
The Law Council, on behalf of the LIV, observed that in 2016 and 2018 there was a loss of members from the MRD with extensive experience in refugee and protection visa matters. Experienced members who were not re-appointed were replaced with 'members (some of whom had no legal background) with little or no migration and/or refugee law experience'.
5.46
The RCA likewise called for further resources to the MRD in order to address the backlog of cases in a timely manner, 'while also ensuring procedural fairness and accurate decision making'. It echoed the calls of the Callinan Report to appoint no fewer than 15 to 30 members.
5.47
RACS also encouraged more efficiency in decision‑making, but said that this should 'never usurp the object of achieving fairness and just outcomes for individuals seeking merits review'.
Productivity of members
5.48
Through a Freedom of Information (FOI) process, the LIV found that between 1 January 2020 and 31 March 2021, the then 173 members of the MRD had a marked variability in productivity. The LIV submitted that the FOI documents showed:
… the number of cases finalised by members over that period varied between 1 and 1,117, with the average resolved by each member over that 15-month period being 177 matters. The number of matters currently allocated to members varies between 1 and 1,056, and the average allocation is 177 matters. Some members were dealing with fewer than 50 cases (around 25 members), while others were undertaking over 500 cases.
5.49
Carina Ford Immigration Lawyers (Carina Ford) further observed that some members were taking '12 months to make a decision after a final hearing', which, in their view, was 'unproductive and unacceptable'.
5.50
The Law Council argued that these factors showed a clear need for a review as to why some members 'appear significantly more productive than others in the disposal of cases' and called for a form of 'accountability and oversight in productivity of members'.
5.51
The Law Council suggested that the review should lead to improvements in the quality and timeliness of decisions, as well as an increase in the number of appropriately qualified and experienced members in the MRD and other Divisions. Doing so would help address the backlog and reduce the likelihood of delays 'associated with cases being remitted to the AAT by the federal courts as a result of jurisdictional or other legal error'.
5.52
In addition, the Law Council submitted that given the significant complexity of the legislative framework for migration and refugee law, consideration should be given to a quota, where at least 80 per cent of all MRD members 'must have previously been enrolled as a legal practitioner (however described) of the High Court or the Supreme Court of a State or Territory', at least five years prior to their appointment. The Law Council observed that it had:
… received strongly expressed views from its members that appointments in the MRD should be legally qualified and capable of presiding over the complexity of migration and refugee matters. The Law Council is supportive of this approach.
Consistency of decision-making
5.53
Submitters also voiced concerns around the consistency of decision-making within the MRD. For example, Carina Ford asserted that there was inconsistency in the conduct of cases, both at an administrative and decision‑making level.
5.54
The RCA indicated that there was a 'widely held perception' amongst visa applicants and their legal representatives that 'chances of success of their review at the tribunal largely depend on the decision-maker assigned to the matter, rather than on the merits of the case'.
5.55
In support of this view, the RCA cited the work of researchers at Macquarie University, who found, using FOI data, that:
The AAT had 88 members who decided more than [MRD] 50 cases. One member did not find in favour of a single asylum seeker applicant, and another 15 had approval rates of less than 5%. At the other end of the spectrum, one member decided in favour of the asylum seeker applicants in 86% of cases while another three members had approval rates of over 40%.
Legislative constraints
5.56
The AAT suggested that the amalgamation process of 2015 has resulted in some procedural differences between Divisions, as determined by legislation—limiting the ability of the AAT to 'manage cases in the most efficient, effective and proportionate manner'. In relation to the MRD, the AAT pointed out that members were limited in how they could conduct reviews, 'due to some of the codified procedural requirements set out in the Migration Act 1958'. The AAT concluded that:
The lack of powers under that Act for members to conduct directions hearings, to give enforceable directions, and to dismiss applications for failure to comply with a direction … hampers the ability to efficiently manage cases in that Division.
5.57
The 2018 Callinan Report found that the merger in 2015 of the Migration Review Tribunal and the Refugee Review Tribunal 'was never going to be an easy task', due to 'their very different legislative regimes and practices'. Justice Callinan continued that the difficulties had been 'immensely compounded by the intimidating backlog of cases' in the MRD, and proposed two solutions which could help ameliorate the issue:
(1)
'radical changes to migration law and practice'; and
(2)
an immediate increase in the members appointed to the MRD (at least 15 to 30, some of whom should be part time).
5.58
Legal Aid NSW also suggested that the AAT was 'often constrained in its process by the requirements of enabling legislation', which was particularly problematic in the 'character cancellation/refusal regime' in Part 9, Division 2 of the Migration Act. Legal Aid NSW said these constraints on administrative review were 'undesirable', and identified the following as particular issues:
the 'prohibitively short' strict nine-day period to seek review of a decision by a Minister's delegate to refusal or cancel a visa on character grounds; and
the power of the relevant Minister to set aside decisions of the AAT.
Immigration Assessment Authority
5.59
The IAA is a separate office established within the MRD, to conduct limited 'fast track reviews of decisions to refuse to grant certain persons a protection visa'. The Migration Act requires the IAA to do this in a way that is efficient, quick and free of bias, and, in reviewing a decision, the IAA is 'not bound by technicalities, legal forms or rules of evidence'.
5.60
The IAA consists of the AAT President; the head of the MRD; the Senior Reviewer; and Reviewers. The AAT advised that, as per the Migration Act, the Registrar must make officers of the AAT available to assist the IAA in the performance of its administrative functions. In addition:
The President and the head of the Division are responsible for the overall operation and administration of the IAA. The Senior Reviewer is responsible for managing the IAA, subject to the directions of, and in accordance with policies determined by, the President and the head of the Division of the Migration & Refugee Division.
5.61
The IAA is funded through an agreement based on the projected number of referrals from the Department of Home Affairs.
5.62
The IAA received an average of 75 referrals per month in 2020–21, a 49 per cent decrease compared with the previous year due to the impact of COVID-19. During 2020–21, the IAA finalised 788 cases, with 212 on hand at 30 June 2021. The median time from referral to a decision was five weeks.
Operation of the IAA
5.63
The IAA is a specialised division of the AAT and deals with migration decisions made in relation to a specific group of asylum seekers—those who arrived in Australia by sea between 13 August 2012 and 1 January 2014 and were not taken to a regional processing country.
5.64
The Law Council explained that decisions to refuse to grant a visa to a fast‑track applicant are either excluded from review, or mandatorily sent to the IAA. In addition, fast-track reviewable decisions are subject to an abbreviated review process conducted in accordance with a 'code of procedure which exclusively provides for the hearing procedure (excluding natural justice) under Part 7AA of the Migration Act 1958'.
5.65
According to the AHRC, the IAA's 'limited' form of merits review in accordance with a fast-track decision-making process contains fewer rights for those seeking to review government decisions, typically a decision to grant them a protection visa.
5.66
In other words, IAA matters are dealt with pursuant to procedural codes, rather than the principles of common law. As pointed out by the Law Council, the Full Federal Court in 2006 voiced concerns about this approach, saying that 'codification in this area can lead to complexity, and a degree of confusion, resulting in unnecessary and unwarranted delay and expense'. The Court's view was that such matters should be 'dealt with in accordance with the well‑developed principles of the common law'.
5.67
The Law Council raised numerous concerns about the operation of the IAA, detailing some of the operational aspects of the IAA as provided by the Migration Act and making a number of observations about the limitations of its operations. For instance, the IAA:
can make a decision on the papers, and not offer a review applicant an interview or the opportunity to comment on an application except in 'exceptional circumstances' (s. 473DB);
is generally prohibited from presenting new information or evidence except where 'exceptional circumstances' exist (s. 473CC);
has reviewers who are public servants, and 'thus are not independent in the same way as members appointed by the Governor-General to the MRD';
may make decisions without any engagement with unrepresented applicants, and submissions must be made in English and no translating service available; and
does not reflect the 'inquisitorial merits review process that characterises other statutorily independent merits review bodies'.
Concerns with the IAA
5.68
A number of submitters expressed serious concerns about the operation of the IAA, questioning whether the IAA properly applies the principles of procedural fairness, or provides an adequate merits review to applicants.
5.69
For example, Victoria Legal Aid contended that the diversion of certain asylum seekers through the IAA fast-track process, with its lack of hearings and limited ability for new evidence, had 'resulted in a significant increase in applications for judicial review to the Federal Circuit Court'. The organisation argued that this outcome highlighted the 'negative impacts of a merits review process with diminished procedural protections' and 'reinforces the value of the full merits review model exemplified by the AAT'.
5.70
Similarly, the RCA was of the view that the fast‑track process was 'designed to favour expediency over procedural fairness', in contrast to the requirements of the AAT, and it 'could not be relied upon as a fair and accurate review mechanism'. The RCA concluded that:
This has resulted in significant discrepancies between the IAA and the former review process, with the IAA affirming the Department's original decision to refuse an asylum claim in 91% to 94% of cases. The IAA decisions are also legally questionable, with 37% of appeals succeeded in the federal courts.
5.71
A submission from the Monash University Faculty of Law raised similar concerns with the fast-track process undertaken by the IAA. It noted that various civil society groups and academics had raised concerns over a span of years about the operation of the IAA, and called for either its abolishment or reformation to improve procedural fairness protections.
5.72
The submission also argued that the fast-track process was in contrast to the 'mainstream' merits review system provided to other asylum seekers by the AAT, which conducts a full merits review of the matter and has an obligation to hold an oral hearing. It noted that the fast-track system assumes applicants will receive procedural fairness at the first interview stage, and that as such, it is unnecessary for the granting of full procedural fairness (for example, an oral interview) at the review stage.
5.73
Monash University argued that the IAA fast-track process does not adequately provide integrity in the administrative system, and asserted that an oral hearing provides the best opportunity for decision-makers to properly consider an asylum seeker's case.
5.74
It further explained:
Whilst we recognise that the introduction of efficiency measures is an important way of avoiding delays in decision-making, and from that perspective is beneficial to administrative justice, we believe the IAA Fast Track system increases the propensity of such measures to lead to serious legal errors. This is particularly problematic given the seriousness of the decision-making context at stake (possible return of refugees to harm).
5.75
The UNHCR also asserted that the 'swiftness with which the IAA can finalise cases has come at a cost; for key procedural safeguards are absent from the review process'.
5.76
The Law Council discussed the absence of these safeguards and argued that the lack of a right to a hearing in the IAA—and the inability to introduce new evidence in most circumstances—resulted in the regular failing of cases with merit, 'placing applicants at risk of refoulement'. It was the Law Council's view that all administrative decisions regarding protection visas should have access to a 'robust and independent system of merits review'. The Law Council put forward the experience of practitioners who engage with the IAA, saying that the fast-track scheme:
does not reduce appeals to court (according to the Law Council, between 2017–18 and 2020–21, 81.8 per cent of IAA decisions were appealed, and 36.5 per cent of decisions were allowed);
is difficult to navigate for unrepresented applicants; and
does not allow the introduction of new evidence except in exceptional circumstances, meaning that cases with merit fail.
5.77
Similar to the Law Council, the RCA noted that IAA reviewers are engaged under the Public Service Act 1999 for short initial terms of 18 months, and as public servants the reviewers could not be considered independent decision makers—as they 'serve at the pleasure of the executive and do not need to even have legal qualifications'.
5.78
The Law Council did not support the use of the IAA to address backlogs in the MRD, as doing so did not reduce appeals to court—arguing it in fact produced the opposite result. As an alternative, the Law Council suggested the use of directions hearings as a way to progress matters, as past experience had shown these to work well and benefit clients.
5.79
Overall, the Law Council was of the view that instead of reliance on the IAA, it should be abolished in order to give applicants a full de novo review of their claims, and because:
… the flaws in its legal framework, which deny procedural fairness and natural justice, cannot be remedied … All cases potentially in the IAA pipeline or on remittal from the IAA should be re-directed to the regular part of the MRD.
5.80
This argument was shared by the RCA, which said there was no justification for maintaining the IAA, especially as its caseload was reducing considerably each year and would have a finite number of applications moving forward—those who arrived by boat in the specified period. The RCA echoed the calls to abolish the IAA and incorporate its functions into the MRD and AAT.
5.81
Refugee Legal shared these views, calling for the abolishment of the IAA and the restoration of full merits review at the AAT. It said that the IAA was a:
… separate, inferior form of merits review [that] constitutes a radical deviation from longstanding, fundamental procedural and substantive legal protections for vulnerable persons seeking protection from serious human rights abuses in Australia. It has resulted in a serious erosion of essential statutory safeguards, and heightened the risk of Australia wrongly refusing protection for individuals leading to them being returned to persecution or other significant harm.
Concerns of the Australian Human Rights Commission
5.82
The AHRC commented on what it saw as the two key problems with the fast‑track process at the IAA, which distinguish the process from normal merits review in other AAT Divisions.
5.83
Firstly, by not accepting new information (unless under 'exceptional circumstances), the AHRC argued that this forces an applicant to provide all relevant information at initial interview with departmental officials, at a time when they may not have access to legal advice or assistance. The AHRC concluded that there was an obvious risk of prejudice to an applicant arising from this situation.
5.84
Secondly, the AHRC highlighted that the IAA must not interview the applicant and must conduct a review on the papers, unless there are exceptional circumstances. It stated that this was contrary to procedures recommended by the former Administrative Review Council (ARC), the former Joint Standing Committee on Migration Regulations, and the UNHCR in their advice about processing refugee claims.
5.85
The AHRC stated that it had raised these procedural fairness concerns with the Government in 2014 when the fast-track process was first introduced. It also noted that in 2015 the Australian Law Reform Commission (ALRC) had recommended that the fast-track process be subject to further review to consider whether it unjustifiably excluded the duty to afford procedural fairness.
5.86
In drawing its concerns to the attention of the committee, the AHRC submitted that people affected by migration decisions should have the same substantive and procedural rights as anyone else in Australia who seeks a review of a decision by government.