The ‘exceptional’ nature of refugee and migration review
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.
- 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.
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.
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. 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.