Download the response from Hon Mark Dreyfus QC, MP
We welcome your recent announcements regarding your commitment to reforming the Administrative Appeals Tribunal (AAT). We at the Refugee Council of Australia (RCOA) and the Kaldor Centre for International Refugee Law at UNSW have raised concerns about the current refugee merits review system for several years. The AAT is now almost unworkable for refugee cases, with significant delays, poor decision-making and a largely politically-biased membership.
Merits review plays a pivotal role in refugee status determination for those seeking protection in Australia. It ensures that errors in the high volume of decisions made by the Department of Home Affairs are reviewable by an independent body. This is especially important in the case of refugee claims, when matters of life and death may be under consideration. Indeed, the AAT can provide a critical safeguard against forced return to danger by helping to ensure accuracy and fairness in decision-making. Robust mechanisms for independent merits review are also in the best interests of the Australian Government as they help to ensure high-quality and consistent administrative decision-making. Merits review also helps to ensure that Australia’s obligations under international law are properly applied. This includes obligations under the Refugee Convention and complementary protection grounds set out in international human rights law.
As such, it is vital that the merits review system remains independent, adequately resourced and comprised of members who are highly skilled and qualified to assess refugee and other protection claims. The AAT does not currently meet these criteria.
Ongoing delays and unacceptable backlogs
The AAT is significantly under resourced, with a current backlog of 36,708 refugee cases as of May 2022. In the last 11 months to May 2022, the AAT made only 5,269 decisions on refugee cases, while receiving 9,879 new applications.1 At the current rate, it will take over six years to get through these matters. As the caseload increases faster than decisions are handed down, this backlog will continue to increase.
In addition to the delays at the AAT, the Department of Home Affairs takes an average of two years to process an initial onshore protection application. This means that a person can be waiting in Australia for over eight years before they receive a decision about their refugee claim. -2-
These long delays contribute to significant distress and uncertainty for many applicants, leaving them in a very precarious situation. For example, many cannot work or access Medicare because of their visa status. Policy changes regarding income support mean that most will not be eligible for government support while they are waiting for a decision, placing them at risk of destitution. Long delays also mean that people who may not have a genuine asylum claim are able to stay in Australia for an extended period while they await a decision, which may create an incentive to lodge weak or unmeritorious claims.
These delays are substantially caused by a lack of resources to the AAT, especially for the appointment of additional members to the Migration and Refugee Division (MRD). There is a clear need to further resource the MRD to process the backlog of claims in a timely manner, while also ensuring procedural fairness and accurate decision-making. We reiterate the recommendations from the Callinan review that “the deficiency of numbers of Members in the MRD be immediately addressed by the appointment of no fewer than 15 to 30 Members, some only of whom should be part-time Members.”2 Additional members may also need to be appointed on a short-term basis in order to bring the backlog under control.
This backlog is not only due to under-resourcing of the AAT, but also the lack of expertise from some AAT Members. This is in part a result of the politicisation of appointments to the AAT, and the fact that some appointees do not have legal qualifications.
The previous government appointed people to the AAT who were closely connected with the Liberal–National Coalition. The political nature of some AAT appointments has arguably skewed decision-making. Figures obtained under Freedom of Information laws show that ALP-appointed members were 1.79 times more likely to overturn Departmental decisions on refugee matters than Coalition appointees. This is concerning in a process that is supposed to be objective, independent and evidence-based.
We note that section 17D of the Administrative Appeals Tribunal Act 1975 requires the Minister for Immigration to be consulted before a member is assigned to the Migration and Refugee Division. Allowing the Minister to have influence over the appointment of Tribunal members tasked with reviewing decisions made by the Minister (and the Department headed by the Minister) clearly creates a conflict of interest. This provision should be removed.
We endorse and reiterate the recommendations from the Callinan Report that “all further appointments, re-appointments or renewals of appointment to the Membership of the AAT should be of lawyers, admitted or qualified for admission to a Supreme Court of a State or Territory or the High Court of Australia, and on the basis of merit”.3 The report also recommended “further appointments of, preferably, full-time, appropriately legally qualified, Members”.4
Funding legal representation
Since 2014, changes to legal funding arrangements have meant that most asylum seekers who arrive without a valid visa cannot access free government-funded advice and representation. This has left many vulnerable people to navigate these systems without help. The asylum process is already daunting, especially for those who do not speak English, come from countries with different legal systems or who are suffering mental illness as a result of torture or trauma. The lack of legal -3-
support is almost certainly having an impact on the efficiency and quality of decision-making within the AAT (as well as the Immigration Assessment Authority (IAA)), making it harder for decision-makers to identify jurisdictional errors which may lead to a person being wrongly returned to persecution, torture or other serious harm.
Indeed, our analysis of data obtained under Freedom of Information laws showed that refugee claimants were seven times more likely to have a protection need recognised by the AAT if they had legal representation. At the IAA, represented applicants were twice as likely to succeed as unrepresented applicants.
We therefore recommend that funding be reinstated for all people seeking asylum, at all stages of the process, in line with Labor’s commitments in the 2021 National Platform. Such funding should come through the Attorney-General’s Department, like most funding for community legal services, rather than through the Department of Home Affairs (which creates a conflict of interest).
We would appreciate the opportunity to discuss these matters with you further, as you consider reforms to the AAT. In the meantime, please do not hesitate to let us know if we can provide any additional information.
We look forward to hearing from you.
Paul Power & Associate Professor Daniel Ghezelbash