On 24 November 2021, the Refugee Council of Australia made a submission to the Legal and Constitutional Affairs References Committee on the Performance and Integrity of Australia’s Administrative Review System.
The Administrative Appeals Tribunal (AAT) plays a pivotal role in refugee status determination (RSD) 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 case of refugee claims, when matters of life and death are 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 ensure the correct decision is made and help to ensure high-quality and consistent administrative decision making. The merits review process also ensures that many broader aspects vital to a healthy democracy are upheld, including affording natural justice, upholding the rule of law and contributing to open and accountable government.
As such, it is vital that the AAT remain independent, adequately resourced and appoint members who are highly skilled and qualified to assess refugee status determinations. Unfortunately, this is not the case with the current AAT. The AAT is significantly under resourced, with a backlog of 32,000 refugee cases, and only about 5,500 cases decided last financial year. This backlog is not only due to under-resourcing of the AAT, but also due to the lack of expertise from some AAT members. This is due in part to the politicisation of appointments to the AAT, and the lack of legal qualifications of some appointees.
Likewise, the politicisation of appointments has also resulted in discrepancies in decision making. Using figures obtained under Freedom of Information, researchers from Macquarie University show that acceptance rates at the AAT for ALP-appointed members were 1.79 times higher than appointees of Liberal-National Coalition governments. These figures highlight a worrying level of discrepancy between Members based on the political party which appointed them.
We also reiterate our ongoing concerns with the Immigration Assessment Authority, a body established under the Fast-Track process to review appeals for people seeking asylum who arrived by boat. This process was designed to favour expediency over procedural fairness, with legislation specifically omitting requirements for fairness, in contrast to the requirements of the AAT. 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.
Together, these issues highlight significant concerns with our merits review mechanism. These issues need urgent attention in order to restore integrity, public trust, and the rule of law to the AAT.