The inquiry into statutory review of the Tribunals Amalgamation Act

On 27 July 2018, the Hon Ian David Francis Callinan AC QC, former Justice of the High Court of Australia, was appointed to undertake a statutory review of the Administrative Appeals Tribunal in accordance with section 4 of the Tribunals Amalgamation Act 2015 (TA Act). Submissions closed on 24 August 2018.

Our key concerns

The Tribunals Amalgamation Act 2015 made a very significant change to the structure of the review of refugee decisions, by amalgamating the Refugee Review Tribunal and Migration Review Tribunals into the Administrative Appeals Tribunal. Around the same time, the Immigration Assessment Authority was created to review decisions relating to most people seeking asylum by boat through the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014.

This submission restates concerns we expressed in our submission to the Senate Legal and Constitutional Affairs Committee, during these inquiries on the Tribunals Amalgamation Bill 2015, some of which have been borne out by experience since that time. In particular, we express concerns about the:

  • Independence of the Migration and Refugee Division of the Administrative Appeals Tribunal, and perceptions of public trust and confidence
  • The need to review the ‘exceptional’ nature of the Migration and Refugee Division and the Immigration Assessment Authority, including the scope and grounds of review
  • Proposed greater efficiencies, including the need for greater resourcing of the Migration and Refugee Division, review of the visa cancellation processes, and the need for proper funding of legal representation for protection decisions, and
  • The need to review penalties for non-compliance.

The need for a strong, fair and impartial refugee claim review process

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 mechanisms are also in the best interests of the Australian Government as they ensure the correctdecision 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.

Independence of the Tribunal

This review is a timely opportunity to consider the critical role of the AAT and of independent merits review more generally, given the renewed attacks in the media and by some politicians about the existence and decision-making of the AAT. While these attacks are not new, they represent a grave threat to the rule of law, and undermine the public perception of the independence of administrative tribunals, which is essential for them to discharge their function effectively.

For much of its history, the processes and appointments of the former Refugee Review Tribunal (RRT) and Migration Review Tribunal (MRT) were compromised by politics. The Immigration Minister was the person responsible for making appointments and resourcing the tribunals, which was an obvious conflict of interest. Under both Liberal and Labor governments, members were appointed with links to the governing party while others were not reappointed because of such links or perceptions that they were unduly ‘soft’. Further, their governing legislation was often changed, especially in response to unfavourable court decisions.

A benefit of amalgamation under the 2015 Act was that responsibility for both tribunals was transferred from the Department of Immigration and Border Protection (as it then was) to the Attorney-General’s Department. Further, the head of the AAT (if not the responsible Divisions) would be a federal judge. It was hoped that this arrangement would improve the independence and standing of the Migration and Refugee Division and the quality of decision-making.

Instead, the history of politicising the RRT and MRT simply seems to have transferred itself to the AAT. The appointments to the AAT at the end of the 2017 financial year raised serious (albeit longstanding) concerns about the politicisation of the Tribunal. Most recently, a former Liberal State Minister has been appointed, alongside a former federal Liberal member. This has been compounded by continuing attacks in relation to the AAT’s role in visa cancellations, including by the (then) Minister for Immigration. This undermining of the tribunals by the government was acknowledged by the former Attorney-General, George Brandis, before he left office:

I have not disguised my concern that attacks upon the institutions of the law, upon the courts and those who practice in them. To attack those institutions is to attack the rule of law itself and it is for the Attorney-General always to defend the rule of law, sometimes from political colleagues who fail to understand it or are impatient of the limitations it may impose upon executive power.

We note that s 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. In our previous submission, we recommended against this requirement, as it is vital that the AAT must be seen to be completely independent. Allowing the Minister to have influence over the appointment of Tribunal members who will be tasked with reviewing decisions made by the Minister (and the Department headed by the Minister) clearly creates a conflict of interest. Such a recommendation is even more relevant in light of the public hostility of the Minister for Immigration towards particular members who have made controversial decisions.

In particular, we note that while s 17CA of the AAT Act requires the Minister to ensure the member has relevant training, knowledge or experience in relation to freedom of information, there is no such requirement in s 17C of the AAT Act. We would recommend streamlining the provisions for appointment by removing the requirements for consultation with Ministers and replacing them with similar requirements for qualifications. Given the complexity of refugee and migration law, most refugee matters should be heard by qualified members who are well trained in refugee law and understand the complex issues that people seeking asylum may experience. RCOA strongly suggests that a Tribunal member also be trained in cross-cultural communication, cultural awareness, the refugee experience and the impacts of torture and trauma, to ensure that they have the requisite skills to assess protection claims accurately and fairly.

As the former Administrative Review Council stated, “It is crucial that members of the community feel confident that tribunal members are of the highest standard of competence and integrity, and that they perform their duties free from undue government or other influence.” RCOA supports its recommendation that the “selection and appointment process for all tribunal members should be rational, merit-based and transparent.”

We also endorse the detailed best practice guide to ensuring independent merits-based appointments, published in 2016 by the Council of Australasian Tribunals. In our view, the adoption of a model of independent appointments commission, along the lines used in the United Kingdom, would in the long term ensure the proper independence of tribunal members.

Public trust and confidence

We note the terms of reference of this inquiry include specific reference to the Tribunal’s objective of promoting public trust and confidence in its decision-making, with an additional reference to its meeting of ‘community expectations’. We note that the phrase ‘community expectations’ is not within the AAT Act, although it reflects some of the language in Ministerial Direction 65 which applies to decision-makers when reviewing visa cancellations.

The phrase ‘public trust and confidence’ in the context of the Tribunal’s objectives must be read in light of the other objectives identified in s 2A of the AAT Act, which include that the Tribunal is accessible, fair, just, informal and quick. In our view, tribunals can only command public trust and confidence if they are perceived as independent of the executive, as discussed above, and if they make their decisions according to the law and consistently with the principle of the rule of law. That is a basic requirement of ‘fairness’ and ‘justice’.

There are other aspects of ‘fairness’ and ‘accessibility’ which this inquiry should consider as impairing public trust and confidence in the AAT. In the context of refugee decisions, as discussed below, there are a range of exceptional provisions that, for example, exclude natural justice, narrow the scope of judicial review and impose very strict time limits on access to review or appeal. Further, the withdrawal of government funding for legal representation for those who arrived by boat makes an already very uneven playing field almost impossible for a person seeking asylum to navigate effectively. This is made even more complicated because of the increasing difficulty of identifying the routes to appeal and judicial review.

In relation to visa cancellations, we would also note that public trust and confidence is undermined when the administrative review process can be overturned personally by the Minister for Immigration, and when administrative review is excluded by the Minister personally making decisions. Such extraordinary personal powers do not, to our knowledge, exist outside of the migration and refugee jurisdiction. As we explain in our submission to the Joint Standing Committee on Migration on the review of visa cancellation processes, such extraordinary personal powers subvert the principle of the rule of law. This is especially problematic given the public statements of the Minister and other members of his government which undermine the principle of independence.

These powers and the visa cancellation processes more generally precede and are unaffected by the amalgamation of the Tribunal, so to some extent lie outside the scope of the inquiry. Nevertheless, they may be relevant when considering the necessity and justification for levels of separation within the Tribunal, and the overall efficiency of the Tribunal (as discussed below).

The ‘exceptional’ nature of refugee and migration review

Key differences

This review provides a timely opportunity to realise some of the missed opportunities of amalgamating the tribunals. The 2015 Act left largely untouched the existing processes and legislation applicable to the Migration and Refugee Review Tribunals. Part IV of the AAT Act, which governs the review by the Tribunal of decisions, does not apply to migration and refugee proceedings under s 24Z, with limited exceptions. There has therefore been no opportunity to review the consistency of those processes and legislation and the impact on overall efficiency, savings and integration of the Tribunal more generally.

We are aware that there will be other submissions made by those who specialise in refugee and migration law, which will address disparities in more detail, including our members. We will therefore only identify at a high level some of the disparities that should be reviewed and justified in principle.

These include:

  • Codes of procedure that largely exclude the requirements of natural justice
  • Decisions are deemed to be made at the day and time the written statement is made, rather than upon receipt
  • Powers to dismiss applications where a party fails to appear
  • Ministerial powers to exclude administrative review, including by issuing conclusive certificates
  • Varying strict time limits, mostly non-extendable (for example, seven days for people in detention, nine days for visa cancellations in the case of denial of revocation requests).

In our submission in relation to the 2015 Act, we also observed that the maximum penalty for the offences of failing to comply with a summons, failing to be sworn in and answer questions and contempt of the Tribunal had doubled from six months to 12 month’s imprisonment. There appears to be no justification for increasing the penalties in this manner, particularly considering that the new penalties would be out of step with similar provisions for Commonwealth and State courts, tribunals and Royal Commissions. As the Kaldor Centre argues, “it is difficult to justify a higher penalty than that which exists, for example, for similar offences in the Federal Court of Australia.” We recommend that the existing penalties for failing to comply with the Tribunal remain the same.

The IAA

A more obvious and glaring disparity is the Immigration Assessment Authority, which is housed within the AAT but is not staffed by its members and follows its own set of legislative rules that differ from those of the Migration and Refugee Division. The Authority’s members are appointed separately, for terms of initially 18 months and then up to a year. This short-term appointment, combined with the unique features of the IAA of a ‘paper’ review with exclusions of ‘late’ evidence, make the IAA even less independent and worthy of public trust and confidence than the AAT.

Apart from the lack of credibility of the tribunal itself, there are clear inefficiencies (not to mention injustice) in having a separate body of reviewers (paid less, and without any real security of tenure) who are doing, in effect, the same work as those within the AAT, simply because some have arrived by plane and others by boat. For example; the IAA separately recruits its members, which led to a significant delay in the IAA being constituted.

Further, details as to key variations in procedures (for example, whether information was sufficiently ‘exceptional’ to be considered after the original claim was filed) were worked out effectively on the run. Finally, as a result there have been further legal challenges in the courts to work out the meaning of the new legislative provisions and rules, causing greater inefficiencies.

Scope of review

This inquiry’s terms of references include consideration of the scope of review in and from the AAT. There are serious problems currently being caused by the convoluted nature of rights of appeal and judicial review in the refugee context, which has long since departed from the mainstream of administrative law. In a damning statement, Flick J had occasion to observe the following about the rights of appeal of people in detention:

It should be noted at the outset that there is nothing more fundamental to the administration of justice by this Court than the ability to clearly identify those matters in respect to which it has jurisdiction.

This is more so the case where the jurisdiction of this Court in respect to migration matters is often invoked by those who are unrepresented and who frequently have a limited command of the English language. Even those who command considerable legal skills are often uncertain as to whether a proceeding should be commenced in the High Court of Australia, this Court or the Federal Circuit Court of Australia.

The jurisdiction entrusted to one or other of these Courts is a morass of confusion.

The same is also true for the grounds of judicial review of refugee decisions, which are now mostly restricted to common law ‘jurisdictional error’ rather than the codified grounds in the Administrative Decisions (Judicial Review) Act 1977 which applies to most decisions before the AAT. A very significant proportion of decisions in the refugee context are now concerned with increasingly elusive definitions of ‘jurisdictional error’, a concept that is difficult for lawyers to grasp, let alone unrepresented refugees with limited English.

This has serious impacts on the accessibility and fairness of the system for refugees, the ability of the AAT to provide timely and final dispute resolution, and the efficiency of the review system. Precious resources are wasted by courts having to decide where a person should appeal, rather than considering the substantive matters in dispute. In the case of refugees, the delays caused by these inefficiencies have real practical impact, because they live in limbo, and probably in detention, as a result.

Other efficiencies

Resourcing of the Migration and Refugee Division

There is currently a very large backlog, around 40,000 cases, in the Migration and Refugee Division, while the Division is only resourced for around 18,000 cases. According to the AAT, there are fewer members in the Division than before they were amalgamated.[13] A major efficiency would be to ensure that the Tribunal is properly resourced for the work it is required to do.

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. Recent changes to government policy also mean that it is unlikely they will receive government support while they are waiting for a decision, risking destitution. 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.

Review of visa cancellation processes

We have addressed in detail in our submission to the Joint Standing Committee on Migration ways to improve the efficiency of the process of reviewing visa cancellations, and include our recommendations here as well. The evidence is that the inefficiencies in this system is caused largely by backlogs within the Department of Home Affairs and before the Minister, rather than at the AAT itself which is required to meet strict timelines.

Our first recommendation is that those owed protection should be precluded from having their visas cancelled. The purpose of cancelling a visa is to remove a person from Australia. However, as the Department of Home Affairs has conceded, doing so in the case of a person owed international protection obligations would be in breach of those obligations. Detaining them indefinitely, which is the consequence of cancelling a visa without prospect of removal, is also a breach of our obligations not to arbitrarily detain people. Therefore, there is no logical purpose to cancelling such visas.

Our second recommendation, consistently with what has been said above, is to streamline the visa cancellation process by restoring the process to the mainstream of administrative justice. This includes a robust initial decision-making process, adequate timelines for review and appeal, restoring full merits review and judicial review, and removing the extraordinary powers of the Minister. Such a process will remove the ‘exceptional’ nature of the process and restore trust in the fairness and accessibility of the procedure, and, critically, its independence from the executive.

Funding legal representation

Since 2014 changes have meant that most people who come to Australia without a valid visa, most significantly people seeking asylum, cannot access free government-funded advice and representation, under the Immigration Advice and Application Assistance Scheme, when lodging an application for protection or before the IAA. Those with a valid visa do not have access to government-funded representation at the merits review process.

This lack of legal representation has direct effects both on the fairness and accessibility of the system, and on its efficiencies. Long delays were caused as people seeking asylum sought help from underfunded specialist legal centres, which were overwhelmed with demand at the same time as their funding was cut. Full representation was mainly replaced by legal clinics, which had an effect on the quality of the applications prepared and created real risks of refoulement.

Unprecedented demand has meant that there are fewer legal representatives attending hearings of the IAA or AAT, leaving many vulnerable people to navigate these systems without help. This is especially significant for those who do not speak English, come from countries with diverse legal systems or who are suffering mental illness as a result of torture or trauma. This is almost certainly having an impact on the efficiency and quality of decision-making within the tribunals, and is making it extremely difficult to identify jurisdictional errors which may lead to a person being wrongly returned to torture or other serious harm. We therefore recommend that funding be reinstated for all people seeking asylum at all stages of the process.

Our recommendations

Recommendation 1

RCOA recommends that the requirement for the Attorney-General to consult with the Minister for Immigration be removed and replaced with a legislative provision requiring Tribunal members to have relevant expertise. In the long term, the Australian Government should also consult on the possibility of an independent appointments commission for tribunal members.

Recommendation 2

This inquiry should examine the ways in which the Migration and Refugee Division’s procedures departs from those prescribed in Part IV of the AAT Act, and make recommendations to harmonise them where such differences cannot be justified in principle. The inquiry should also revisit the level of penalty for offences under the AAT Act to ensure consistency with other courts and tribunals.

Recommendation 3

The Australian Government should abandon the Immigration Assessment Authority and ensure all people seeking asylum have access to merits review through the Administrative Appeals Tribunal.

Recommendation 4

This inquiry should recommend a detailed review of the scope and grounds of the review of migration and refugee decisions, with a view to restoring such decisions to the mainstream of administrative law and reducing its complexity.

Recommendation 5

This inquiry should recommend a mechanism to ensure proper resourcing of the Migration and Refugee Division, commensurate with its caseload.

Recommendation 6

The Migration Act should be amended to prohibit the cancellation of visas for people who are owed non-refoulement obligations.

Recommendation 7

The Migration Act should be amended to streamline the process of visa cancellations under s 501 by:

  • Ensuring a robust initial decision-making process by the Department of Home Affairs, including through ensuring procedural fairness by enabling them to know and address the evidence against them
  • Ensuring adequate timelines for review and appeal
  • Restoring full merits review to the Administrative Appeals Tribunal, in accordance with general principles of administrative law
  • Restoring the jurisdiction of the courts to review decisions according to the general administrative law grounds available under the Administrative Decisions (Judicial Review) Act, and
  • Removing the extraordinary powers of the Minister to make personal decisions and to substitute his or her own decision for that of a delegate or Tribunal, other than where the decision is more favourable to the person involved.

Recommendation 8

The Australian Government should reinstate access to the Immigration Advice and Application Assistance Scheme at both the primary and review stages of the refugee status determination process, regardless of how a person came to Australia.

Read the full submission