Administrative Appeals Tribunal

The Coalition government has taken the extraordinary step of questioning the judgement of the Administrative Appeals Tribunal (AAT) — even though most of the appointments were made by the Coalition. Why is the AAT suddenly seen as so biased by the government that determined its makeup?

In News Corp papers and in multiple radio interviews this month, Immigration Minister Peter Dutton took aim at the AAT for what he perceived as bad calls in overturning decisions he — or rather, his office — had made on refugees and migrant visas. He told FIVEaa radio in Adelaide that it was a very expensive and time-consuming process for the government because the backlog of cases, coupled with the AAT’s long review process, resulted in decisions that could then be overturned by the minister, and then appealed to the Federal Court and potentially even the High Court.

“So there is a lot of money that’s expended by the Commonwealth each year defending these actions and at every turn, in some of these cases, there is just no case being made at all that these people are refugees, so it becomes incredibly frustrating for me and for taxpayers who are funding all of this — and I don’t want under any circumstance see taxpayers being ripped off.”

He specifically pointed out that the government had not renewed the appointments to the AAT made by the former Labor government. Back on July 1, 2015, the Coalition government ditched the Migration Review Tribunal, which had sat in the Immigration portfolio and created a new migration review division in the Administrative Appeals Tribunal. Before the merger, 38 positions on the Migration Review Tribunal were due to expire, and only eight people had their terms renewed. In their place were put former Liberal staffers and politicians.

As it stands today, according to the current list of members of the AAT, just two of more than 160 members with responsibility in the migration division were legacy appointments by the former Labor government. The remainder were appointed or reappointed by the Abbott-Turnbull government.

Some had interpreted Dutton’s comments as an attack on outgoing AAT president, Federal Court judge and former Labor MP Duncan Kerr, but the Attorney-General’s office indicated Dutton had put no pressure on George Brandis not to reappoint Kerr when his five-year term expired last week.

Could it be the case load that has got Dutton worried? The AAT, as a whole, finalised 38,000 applications in the last financial year, with 18,000 applications in the migration area. This financial year, there has been a 31% increase in applications on migration decisions and an 89% increase in applications on refugee decisions as of the end of April, according to the AAT. So far this year, there have been 21,996 lodgements, 15,139 decisions finalised, and 23,623 cases active. The current clearance rate for refugee applications is currently only 56%.

Part of the reason why the government might have noticed the AAT taking longer to review a lot of migration decisions is that the AAT said in its 2015-16 financial report it was struggling with the workload because there were 16 fewer full-time AAT members to deal with the caseload. The government has filled some AAT roles, but the AAT said that for this financial year it would set up a taskforce focused on the caseload of applicants seeking reviews of protection visa decisions:

“Protection visa cases are generally the most complicated and time-consuming cases given the nature of the claims made and the difficulties in assessing claims about persecution and the risk of harm emanating from the applicant’s country of origin.”

Is it the number of ministerial decisions that the AAT is overturning? Just 12% of refugee decisions by the minister have been set aside by the AAT this financial year, as of the end of April. This is lower than the 16% of decisions set aside in the last financial year.

There has also not been a huge increase in the number of visa applicants challenging the AAT’s decisions. In the 2015-16 financial year, just 32% (or 3269) decisions by the AAT were appealed in court. What is left are some anecdotal cases in the media about specific cases that Dutton refuses to comment on publicly, but that support his argument that the system should be changed. Whatever the motivation, it’s clear that Dutton is laying the groundwork for streamlining the process for refugee visa review applications, which could cut the AAT out of the process entirely. Dutton on FIVEaa:

“I would like to change it. I think people should have their fair day in court. I think there should be the ability for a judge or for a judicial officer to properly hear a matter, to determine it and then I think both parties should be bound by that decision. At the moment, as I say, it just goes on and on and on. There are plenty of legal people and firms who have deep pockets, who make decisions that they’ll provide pro bono support and they cost the taxpayer in defence of these matters, millions of dollars each year.”

Then on the weekend, Dutton announced that there would be an October deadline for what he said was 7500 “fake refugees” to lodge claims for refugee status in Australia. Moving to speed up the process and get the last of the applications processed points to the government seeking to take the issue off the agenda.