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.
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.
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.
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.
This inquiry should recommend a mechanism to ensure proper resourcing of the Migration and Refugee Division, commensurate with its caseload.
The Migration Act should be amended to prohibit the cancellation of visas for people who are owed non-refoulement obligations.
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.
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.