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).