Australian Government: Migration Review Tribunal and Refugee Review Tribunal

Part 4: Performance Report

This Part provides a detailed picture of the operations of the Tribunals over 2006-07. The Tribunals continued to contribute to Australia’s migration and refugee determination programs during the year through the provision of quality and timely reviews of decisions. The Tribunals completed 9,305 reviews, making decisions favourable to applicants in 42% of the cases resolved, and made further improvements to the timeliness of reviews.

Performance framework

The Migration Review Tribunal (the MRT) and the Refugee Review Tribunal (the RRT) provide an independent review of decisions made in relation to visas to travel to, enter or stay in Australia.

The Tribunals are established under the Migration Act 1958 and the Tribunals’ jurisdiction and powers are set out in the Migration Act and in the Migration Regulations 1994. All Members and staff are cross-appointed to both Tribunals and the Tribunals operate as a single agency for the purposes of the Financial Management and Accountability Act 1997.

The Government and the Tribunals have exchanged a Statement of Expectations and Statement of Intent, and the Tribunals’ funding and performance expectations are set out annually in portfolio budget statements.

During 2006-07, the Tribunals effectively delivered on the key outcome agreed with Government:

To provide visa applicants and sponsors with fair, just, economical, informal and quick reviews of migration and refugee decisions.

Table 4.1 summarises the Tribunals’ performance against the indicators and measures that were set out in the 2006-07 portfolio additional estimates statements.

Table 4.1 - Performance information and results
Measure Result
Effectivness in delivering outcomes

Extent to which the MRT and the RRT contribute to the quality and consistency of administrative decision making.

The Tribunals conducted 9,305 reviews, making decisions favourable to applicants in 3,939 cases.

The Tribunals provide written reasons for each decision, and publish decisions of particular interest. The Tribunals published 8% of decisions made in 2006-07, and are committed to publishing 20% of decisions made in 2007-08.

The Tribunals publish a range of guidance aimed at improving the quality and consistency of decision-making. These include the Guide to Refugee Law, the Guidance on the Assessment of Credibility, the Interpreters’ Handbook and a range of Principal Member Directions on the conduct of reviews.

The Tribunals’ Legal Services Section and Research and Information Section maintain extensive information holdings, and provide advice to Members on request.

There is an active professional development program for Members which includes regular training sessions and attendance at conferences and seminars.

The Tribunals liaise with the Department of Immigration and Citizenship (DIAC) in relation to quality issues in decision-making.

Professional and effective working relationships with stakeholders.

Regular community liaison meetings are held and the Tribunals consulted widely on the development of a number of key documents including the Tribunals’ Plan and the Interpreters’ Handbook.

Regular liaison meetings with DIAC are held to discuss operational issues, the impact of court decisions and caseload trends.
Quality of outputs

Level of and outcomes of appeals against Tribunal decisions.

5.6% of MRT decisions and 49.7% of RRT decisions were appealed to the courts. In terms of outcomes, 26% of the MRT decisions appealed and 27% of the RRT decisions appealed, were set aside by the courts. While fewer cases were set aside than in 2005-06, the percentage of cases set aside is higher than it was in previous years, with appeals being decided on cases which predated significant court judgments made in 2005-06.
Number of complaints received.

The Tribunals received 29 complaints, 20 in relation to the MRT, and 9 in relation to the RRT. This represents 3 complaints per 1,000 cases decided.

Extent to which time standards are met.

82% of bridging visa (detention cases) were decided within 7 working days; 77% of RRT cases were decided within 90 calendar days; 44% of general MRT cases were decided within 250 days; and 26% of MRT visa cancellations were decided within 90 calendar days.
Quantity of outputs

8,100 MRT cases and 3,050 RRT cases.

The Tribunals decided 6,203 MRT cases and 3,102 RRT cases. The level of MRT and RRT lodgements, an increased complexity in decision-making, and Members taking on new caseloads following cross-appointment, had an effect on the total number of cases decided.

Financial performance

The Financial Management and Accountability Regulations were amended with effect from 1 July 2006 to establish a single prescribed agency, the ‘Migration Review Tribunal and Refugee Review Tribunal’ (the MRT-RRT) for the purposes of the Financial Management and Accountability Act 1997 (the FMA Act).

Up until 30 June 2006, the MRT and the RRT were separately prescribed for the purposes of the FMA Act and separate financial statements were provided in previous Reports. With the establishment of the MRT-RRT, the appropriations, assets, liabilities and commitments of the MRT and the RRT were transferred to the MRT-RRT, and the Tribunals integrated their financial management arrangements. In this Report, the Tribunals have, for the first time, a single set of financial statements.

The Tribunals’ funding is based on a funding agreement with the Department of Finance and Administration which takes into account the number of cases decided and an assessment of fixed and variable costs. The Tribunals were funded to decide 8,100 MRT cases and 3,050 RRT cases in 2006-07. The Tribunals decided 6,203 MRT cases and 3,102 RRT cases, and the Tribunals’ revenue as set out below takes into account an adjustment to appropriation based on the number of cases decided.

The Tribunals operated within budget in 2006-07. The Tribunals’ revenues from ordinary activities totalled $38.7m and expenditure totalled $38.5m, resulting in a net surplus of $241,000.

Table 4.2 sets out the budgeted and actual costs to Government in 2006-07, and the budgeted costs for 2007-08.

Table 4.2 - Price of outputs

* Actual as at 30 June, includes Members and staff.
  Budget
2006-07
$’000		 Actual
2006-07
$’000		 Budget
2007-08
$’000
Price of outputs
Independent merits review 		     
Revenue from Government (appropriation) 39,659 38,686 40,313
Revenue from other sources 32 66 32
Total price of outputs 39,691 38,752 40,345
Average staffing levels * 340 312 340

The Tribunals administer application fees on behalf of Government. For the MRT, an application fee of $1,400 is payable at lodgement for most applications for review. The fee is refunded if the MRT makes a decision favourable to the applicant. For the RRT, a post-decision fee of $1,400 is payable if the Tribunal affirms the decision under review. Details of administered revenue are set out in the financial statements.

The financial statements for 2006-07, which are set out in Part 6, have been audited by the Australian National Audit Office and received an unqualified audit opinion.

Overview of caseload

The Tribunals received 8,645 cases during the year, and decided 9,305 cases. There was a significant reduction in the number of cases on hand over the course of the year, resulting in improvements to processing times.

The MRT received 5,810 cases, decided 6,203 cases and had 3,534 active cases at the end of the year. The RRT received 2,835 cases and decided 3,102 cases, and had 582 active cases at the end of the year. Table 4.3 sets out the number of cases lodged and decided over the last 3 years, and the number of cases on hand at the end of each year.

Table 4.3 - Overview of caseload
Migration Review Tribunal 2006-07 2005-06 2004-05
On hand at start of year 3,927 4,685 5,166
Lodged 5,810 5,774 7,827
Decided 6,203 6,532 8,308
On hand at end of year 3,534 3,927 4,685
Refugee Review Tribunal
On hand at start of year 849 1,115 1,237
Lodged 2,835 3,021 2,911
Decided 3,102 3,287 3,033
On hand at end of year 582 849 1,115

The Tribunals count multiple applications for review as a single ‘case’ where two or more applications for review are combined, usually from members of a family unit who made a combined application for visas. In some cases, there may be different outcomes for the individuals included in a ‘case’. All statistics used in this Report are of ‘cases’.

The trends in lodgements, cases decided and cases on hand are shown by quarters in Figure 4.1.

Figure 4.1 - Lodgements, decisions and cases on hand

Figure 4.1

Caseload management

The Tribunals monitor lodgements to develop strategies to ensure that appropriate resources and arrangements are in place to manage the work of both Tribunals and to respond to changes in lodgements. The Tribunals’ caseload and constitution policy is designed to support the following aims:

Priorities are assigned to cases with the objective of maintaining a balance between reducing the number and age of cases on hand, and the need to deal quickly with some cases. The highest priority is given to cases involving persons being held in immigration detention. Priority is also given to protection visa cases; visa cancellations; cases remitted from a court to the Tribunals for reconsideration; cases which involve special circumstances of a compelling or compassionate nature (for example, where a child is separated from a parent, where domestic violence is alleged, or where a person seeks a visitor visa to attend a significant family event).

The MRT and the RRT are normally constituted by a single Member who, typically, would be dealing with a mix of cases. A full-time Member, for example, might have 30 MRT cases and 10 RRT cases on hand at any one time. The review is an inquisitorial process. Information is gathered, the applicant is invited to comment on adverse information, and a hearing is held at which the applicant can present arguments and oral evidence can be taken from the applicant and other persons.

The Principal Member has issued a number of Directions on the general conduct of reviews, the conduct of hearings, the caseload and constitution arrangements and the management of detention cases. These Directions are public documents available from the Tribunals’ website.

The Tribunals implemented a new case management system in April 2006 which underwent further development in 2006-07. CaseMate is a web-based system designed to assist Members and staff in managing cases; in generating, sending and storing case documents; and in assigning tasks and scheduling hearings.

Lodgements

The MRT has jurisdiction to review a wide range of visa, sponsorship and other decisions relating to migration and temporary entry visas. The Department deals with very large numbers of migration and temporary entry visa applications (approximately 100,000 partner and family visa applications, 100,000 temporary residence visa applications, 190,000 student visa applications and 3 million visitor visa applications in a year) with the majority decided on the basis that the visa applicant meets the criteria for the visa. For those cases where a visa is not granted, there is a right of review to the MRT if the visa was applied for within Australia, or if there is a requirement for an Australian sponsor or nominator if the visa was applied for outside Australia.

The RRT has jurisdiction to review protection (refugee) visa decisions made within Australia. The Department deals with more than 3,000 initial protection visa applications each year, and all protection visa applicants have a right of review if a protection visa is not granted.

Lodgements of applications for review have fluctuated between years, affected by changes and trends in primary applications and in primary decision making, as well as changes to visa criteria and jurisdiction. Table 4.4 sets out the number and types of cases lodged with each Tribunal, with MRT cases categorised by the type of decision under review, and RRT cases categorised by country of reference.

Table 4.4 - Lodgements
Migration Review Tribunal 2006-07 2005-06 2004-05
Visa refusal - Bridging 138 323 799
Visa refusal - Visitor 289 165 362
Visa refusal - Student 415 366 471
Visa refusal - Temporary business 243 246 313
Visa refusal - Permanent business 148 136 166
Visa refusal - Skilled 671 571 366
Visa refusal - Partner 1,927 1,948 2,709
Visa refusal - Family 559 554 632
Cancellation - Student 1,009 840 1,035
Sponsor approval refusal 52 87 153
Other 359 538 821
Total 5,810 5,774 7,827
Refugee Review Tribunal 2006-07 2005-06 2004-05
China (PRC) 1,081 1,035 753
India 364 305 128
Bangladesh 193 199 137
Indonesia 171 153 68
Sri Lanka 102 152 72
Malaysia 86 140 88
Nepal 58 70 41
Pakistan 57 88 44
Lebanon 56 40 50
Philippines 54 35 58
Other 613 804 1,472
Total 2,835 3,021 2,911

Figure 4.2 shows the MRT lodgements across case categories. There was a further decline in bridging visa cases over the year, reflecting a reduction in the overall number of persons held in immigration detention. There were increases in skilled, visitor and student cases.

Figure 4.2 - MRT lodgements by case type

Figure 4.2

About 60% of MRT lodgements related to persons in Australia seeking a further visa or the review of a decision to cancel a visa. The MRT’s jurisdiction in relation to visas applied for outside Australia depends on whether there is a requirement for an Australian sponsor or close relative, and these cases are mainly in the skilled, visitor, partner and family categories.

Figure 4.3 shows the RRT lodgements by country of reference (the country which the applicant is seeking not to return to). Over 50% of the RRT’s lodgements involved cases from 3 source countries, the People’s Republic of China, India and Bangladesh. Lodgements were made in respect of 89 other countries. Compared to lodgements in 2005-06, Lebanon and the Philippines have replaced Afghanistan and Iraq in the top ten source countries by lodgement.

Figure 4.3 - MRT lodgements by country of reference

Figure 4.3

Applicants to both Tribunals tend to be located in the larger metropolitan areas. 59% of all applicants reside in New South Wales, mostly in the Sydney region. Approximately 25% of applicants reside in Victoria, 6% in Queensland, 6% in Western Australia, 3% in South Australia, 1% in Tasmania and less than 1% in the Australian Capital Territory and the Northern Territory.

Detention cases comprised less than 5% of the cases before the Tribunals, with most applicants within Australia holding a bridging visa or other visa during the course of the review.

Cases on hand

The number of cases on hand at the end of the year has reduced each year for several years. Table 4.5 sets out the number of cases on hand as at 30 June over the last 3 years.

Table 4.5 - Cases on hand
Migration Review Tribunal 2006-07 2005-06 2004-05
Visa refusal - Bridging 10 15 31
Visa refusal - Visitor 158 89 140
Visa refusal - Student 250 193 277
Visa refusal - Temporary business 196 187 236
Visa refusal - Permanent business 123 137 236
Visa refusal - Skilled 459 503 337
Visa refusal - Partner 1,273 1,608 2,040
Visa refusal - Family 437 495 508
Cancellation - Student 333 362 324
Sponsor approval refusal 40 69 103
Other 256 269 453
Total 3,534 3,927 4,685
Refugee Review Tribunal 2006-07 2005-06 2004-05
China (PRC) 191 299 308
India 133 129 29
Bangladesh 33 69 37
Indonesia 21 43 9
Sri Lanka 20 34 33
Malaysia 14 23 17
Nepal 9 21 9
Pakistan 14 22 15
Lebanon 13 11 19
Philippines 4 6 12
Other 130 192 627
Total 582 849 1,115

Figure 4.4 indicates the number and average age of cases at the end of each of the last three years. There have been consistent reductions in the overall number of cases on hand and in the proportion of older cases.

Figure 4.4 - Number and age of cases on hand

Figure 4.4

Cases decided

The MRT decided 6,203 cases over the year, and the RRT decided 3,102 cases. Table 4.6 sets out the number of cases decided over the last 3 years, by case category for MRT cases, and by source country for RRT cases.

Table 4.6 - Cases decided
Migration Review Tribunal 2006-07 2005-06 2004-05
Visa refusal - Bridging 142 338 799
Visa refusal - Visitor 232 214 379
Visa refusal - Student 361 461 517
Visa refusal - Temporary business 237 273 413
Visa refusal - Permanent business 172 233 270
Visa refusal - Skilled 728 405 355
Visa refusal - Partner 2,267 2,416 2,840
Visa refusal - Family 622 581 614
Cancellation - Student 1,041 808 1,069
Sponsor approval refusal 78 127 220
Other 323 676 832
Total 6,203 6,532 8,308
Refugee Review Tribunal 2006-07 2005-06 2004-05
China (PRC) 1,189 1,034 635
India 359 206 204
Bangladesh 230 165 148
Indonesia 193 121 92
Sri Lanka 116 151 97
Malaysia 95 134 105
Nepal 70 58 54
Pakistan 65 81 49
Lebanon 54 49 59
Philippines 56 41 52
Other 675 1,247 1,538
Total 3,102 3,287 3,033

Applicants appointed a representative to assist or represent them in 70% of MRT cases decided and in 44% of RRT cases decided.

In relation to the 6,203 MRT cases decided, hearings were arranged in 4,481 cases, and held in 3,744 cases, or in 60% of the MRT cases decided. In relation to the 3,102 RRT cases decided, hearings were arranged in 2,805 cases, and held in 2,127 cases, or in 69% of the RRT cases decided. Hearings did not proceed where applicants declined or did not respond to the invitation to appear, in cases where the application was withdrawn prior to the hearing date, and in cases where a decision favourable to the applicant was made prior to the hearing date.

Hearings were held using video facilities in 12% of hearings. Interpreters were required in 69% of MRT hearings and 92% of RRT hearings, with more than 80 languages and dialects used.

Outcomes of review

The MRT set aside or remitted the primary decision in 53% of cases decided and affirmed the primary decision in 34% of cases decided. The remaining 13% of cases were either withdrawn by the applicant or were cases where the Tribunal decided it had no jurisdiction to conduct the review.

The RRT set aside or remitted the primary decision in 21% of cases decided and affirmed the primary decision in 71% of cases decided. The remaining 8% of cases were either withdrawn by the applicant or were cases where the Tribunal decided it had no jurisdiction to conduct the review.

Table 4.7 sets out the decisions made by the Tribunals over the last 3 years.

Table 4.7 - Outcomes of Reviews

* No jurisdiction decisions include applications not made within the prescribed time limit, whether a decision was reviewable, and whether a person had a right to seek a review of a particular decision. The Tribunals’ procedures provide for an applicant to be given an opportunity to comment on any jurisdiction issue before a decision is made. Some cases raise complex questions as to whether a matter is reviewable and whether a person has been properly notified of a decision and of review rights.
Migration Review Tribunal 2006-07 2005-06 2004-05
Primary decision set aside or remitted 3,290 3,366 3,905
Primary decision affirmed 2,138 2,321 3,284
Application withdrawn by applicant 386 481 633
No jurisdiction to review * 389 364 486
Total 6,203 6,532 8,308
Refugee Review Tribunal 2006-07 2005-06 2004-05
Primary decision set aside or remitted 649 982 1,009
Primary decision affirmed 2,202 2,069 1,899
Application withdrawn by applicant 52 70 72
No jurisdiction to review * 199 166 53
Total 3,102 3,287 3,033

The fact that a decision is set aside by the Tribunal is not necessarily a reflection on the quality of the primary decision, which may have been correct and reasonable at the time of the decision. Departmental officers in general make sound decisions across a very large volume of cases and make favourable decisions in a large proportion of cases. Where an adverse decision is made, the applicant is provided with written reasons for decision, and advised of appeal rights.

Applicants who apply for Tribunal review typically respond to the concerns of the primary decision-maker by providing submissions and further evidence to the Tribunal. By the time of the Tribunal’s decision, there is often considerable further information before the Tribunal, and there may be court judgments or legislative changes which may affect the outcome of the case.

The set aside rate varies between case categories and source countries (see Table 4.8).

Table 4.8 - Set aside rates

* An unusually large proportion of Bangladesh cases had no jurisdiction decisions in 2006-07, resulting from the lodgement of repeat applications seeking review of decisions that had previously been reviewed by the RRT.
Migration Review Tribunal 2006-07 2005-06 2004-05
Visa refusal - Bridging 18% 22% 22%
Visa refusal - Visitor 44% 53% 58%
Visa refusal - Student 37% 44% 45%
Visa refusal - Temporary business 27% 34% 28%
Visa refusal - Permanent business 47% 42% 31%
Visa refusal - Skilled 62% 58% 63%
Visa refusal - Partner 69% 68% 65%
Visa refusal - Family 45% 45% 44%
Cancellation - Student 44% 41% 33%
Sponsor approval refusal 29% 33% 22%
Other 31% 40% 39%
Total 53% 51% 47%
Refugee Review Tribunal 2006-07 2005-06 2004-05
China (PRC) 22% 14% 10%
India 6% 3% 2%
Bangladesh * 11% 10% 15%
Indonesia 7% 7% 5%
Sri Lanka 49% 30% 16%
Malaysia 2% 2% 1%
Nepal 16% 31% 19%
Pakistan 20% 15% 6%
Lebanon 15% 31% 19%
Philippines 0% 0% 2%
Other 35% 57% 57%
Total 21% 30% 33%

Partner visa refusals were the decisions most often set aside by the MRT. In many cases, the relationship had existed for only a brief period at the time of the visa application. By the time of the MRT’s consideration, there is often further evidence of the continuing nature of the relationship, which is supported at hearing by evidence provided by both partners.

Set aside rates in protection cases vary depending on the claims made by individual applicants and by country circumstances. The average set aside rate has declined over the last 3 years as the caseloads from some source countries have reduced. For example, in 2004-05 and 2005-06, the RRT dealt with a substantial number of cases from Afghanistan and Iraq, setting aside over 90% of these cases.

Timeliness

The Tribunals aim for a speedy resolution of cases consistent with conducting a thorough review and making quality decisions. Members actively manage their caseloads from the time of allocation until decision. Members are expected to quickly identify the relevant issues in a review and the necessary courses of action to enable the review to be conducted as effectively and efficiently as possible. Older cases are actively managed by Members and are regularly reviewed by Senior Members.

The following time standards were applied by the Tribunals this year:

Table 4.9 sets out the average time taken to decide cases, and performance against the above time standards. The number of days is taken from lodgement for MRT cases, and from receipt of DIAC’s documents for RRT cases, consistent with provisions of the Migration Act and Migration Regulations.

Table 4.9 - Timeliness of reviews

* Comparable figures provided for 2005-06 and 2004-05, where applicable.
Average time taken in calendar days 2006-07 2005-06 2004-05
Bridging (detention) cases (MRT) 11 12 11
Visa cancellations (MRT) 146 158 163
All other MRT cases 288 310 331
Protection visa cases 80 97 143
Percentage decided within time standards *
Bridging (detention) cases (MRT) - 7 working days 82% 83% 79%
Visa cancellations (MRT) - 90 calendar days 26% 23% 22%
All other MRT cases - 250 calendar days 44% - -
Protection visa cases - 90 calendar days 77% 58% -

There are cases where it is not possible to decide a case within the relevant time standard. These include cases where hearings need to be rescheduled because of illness or the unavailability of an interpreter, cases where the applicant requests further time to comment or respond to information, cases where new information becomes available, and cases where another body or agency is required to provide a report or an assessment.

While there is still some way to go, the MRT processing times have improved as the number of MRT cases on hand has reduced. There had been over 8,000 MRT cases on hand in 2002 but this has now been reduced to less than 3,600 cases. Once the caseload reduces to the point where all cases can be allocated to a Member shortly after lodgement, the Tribunals expect to decide at least 70% of cases within the above time standards. During 2006-07, 60% of MRT visa cancellation cases were decided within 90 days of allocation to a Member, and 83% of all other MRT cases were decided within 200 days of allocation to a Member.

As required by section 441A of the Migration Act, the Principal Member provides reports every 4 months to the Minister for tabling in Parliament in relation to the operation of the 90 day period for RRT reviews. The reports include reasons why cases take more than 90 days to decide. There can often be several factors that contribute to a case not being decided within 90 days. The most significant factors over the year were providing time for applicants to respond to adverse information (68% of cases), the need to consider additional information provided by applicants after cases had been heard (30% of cases), further investigations or reports (28% of cases), and rescheduled hearings (26% of cases).

The average time from lodgement of an application for review to receipt of DIAC’s documents for MRT cases was 30 days. These include documents which need to be provided from overseas. The average time from lodgement of an application for review to receipt of DIAC’s documents for RRT cases was 8 days. The Tribunals and DIAC are reviewing arrangements in relation to the timely provision of documents to the Tribunals, including documents held electronically.

In most cases, once a decision has been made, the Tribunals are required to invite the applicant to attend a handing down of the decision. With the need to schedule a handing down, a requirement to allow 7 working days for postage if the invitation is sent by mail, and a requirement to provide a further 7 days notice of the handing down, the handing down of decisions occurred on average 16 days after the decision was made. There is no requirement that applicants attend the handing down of the decision, and applicants or their representatives attended the handing down of the decision in only 34% of MRT cases, and in only 22% of RRT cases. Where the handing down of a decision is not attended, the decision is mailed or faxed to the applicant or his or her authorised recipient.

Judicial review

Both MRT and RRT decisions are subject to judicial review by the courts. There are two avenues of judicial review available. One is to the Federal Magistrates Court for review under section 476 of the Migration Act. The other is to the High Court pursuant to paragraph 75(v) of the Commonwealth Constitution.

As at 31 August 2007, applications for judicial review had been filed in respect of 349 MRT decisions and 1,544 RRT decisions made during 2006-07. This comprises 5.6% of the 6,203 MRT cases decided, and 49.7% of the 3,102 RRT cases decided.

Table 4.10 sets out the number and the percentage of decisions which have been the subject of applications for judicial review.

Table 4.10 - Applications for judicial review
  2006-07 2005-06 2004-05
MRT decisions 349 (6%) 399 (6%) 440 (5%)
RRT decisions 1,544 (50%) 1,394 (42%) 1,223 (40%)

Both the applicant and the Minister for Immigration and Citizenship may seek judicial review of a Tribunal decision. Most applications for judicial review are made by applicants.

The applicant and the Minister are generally the parties to a judicial review of a Tribunal decision. Although frequently joined as a party to proceedings, the Tribunals do not take an active role in litigation. As a matter of course, the Tribunals enter a submitting appearance, consistent with the principle that an administrative tribunal should generally not be an active party in judicial proceedings challenging its decisions.

The increased percentage in applications for judicial review of RRT decisions corresponds with an increased proportion of affirmed decisions. 70% of cases were affirmed by the RRT in 2006-07, compared to 63% in 2005-06.

A total of 123 MRT and 546 RRT decisions were set aside or remitted (returned for reconsideration) during the year (relating to decisions made during 2006-07 and earlier years). The majority of these were remitted by consent, that is, by order of the court following an agreement between the parties. Table 4.11 sets out the outcomes of judicial review applications over the last three years.

Table 4.11 - Judicial review outcomes *

* The outcome of judicial review applications is reported on completion of all court appeals against a Tribunal decision. Previous years’ figures are affected if a further court appeal is made in relation to a case previously counted as completed.
Migration Review Tribunal 2006-07 2005-06 2004-05
Applicant withdrawal 126 145 202
Dismissed by court 222 220 246
Tribunal decision unchanged 348 (74%) 365 (70%) 448 (83%)
Returned for reconsideration by consent 92 123 66
Remitted for reconsideration by judgment 31 30 27
Tribunal decision returned for reconsideration 123 (26%) 153 (30%) 93 (17%)
Total 471 518 541
Refugee Review Tribunal 2006-07 2005-06 2004-05
Applicant withdrawal 274 440 664
Dismissed by court 2,111 1,426 1,235
Tribunal decision unchanged 1,485 (73%) 1,866 (72%) 1,899 (89%)
Returned for reconsideration by consent 414 594 166
Remitted for reconsideration by judgment 132 136 79
Tribunal decision returned for reconsideration 546 (27%) 730 (28%) 245 (11%)
Total 2,032 2,596 2,144

Where a decision is remitted by a court, the matter is returned to the MRT or the RRT for reconsideration by the Tribunal (usually constituted by a different Member). The reconstituted Tribunal is not bound by the findings of the previously constituted Tribunal and makes a fresh decision. There may be further evidence or changed circumstances to consider. In about 30% of cases, the reconstituted Tribunal remits the application for reconsideration by DIAC.

Decision-making under the Migration Act remains an area where the level of court scrutiny is very intense and where the same Tribunal decision or same legal point may be upheld or overturned at successive levels of appeal.

As anticipated in last year’s Report, the High Court and Federal Court judgments in SAAP v MIMIA and SZEEU v MIMIA, continued to have an impact on the Tribunals’ operations. These judgments require Members to strictly comply with sections 359A and 424A of the Migration Act and to pay particular attention to the content of written invitations to applicants to comment on adverse information, whether or not the information had been discussed at hearing.

The Migration Amendment (Review Provisions) Act 2007 made amendments to the Migration Act with effect from 29 June 2007. The amendments provide greater flexibility in dealing with information at hearings. It is anticipated that the amendments may result, at least initially, in additional hearings and extensions of time to lodge submissions and evidence, but should provide applicants wih a more effective opportunity to understand and respond to information that is adverse.

A summary of some of the most significant judicial decisions over the year is set out below. These decisions had an impact on the Tribunals’ decision-making or procedures, or on the operation of judicial review in relation to Tribunal decisions.

There are restrictions on identifying applicants for protection visas, and letter codes or reference numbers are used by the courts. Unless stated otherwise, references to the Migration Act are to the Migration Act 1958, and references to the Regulations are references to the Migration Regulations 1994. The Minister for Immigration and Citizenship is formally a party in most cases, and ‘MIAC’, ‘MIMA’ or ‘MIMIA’ is used to identify the Minister in the abbreviated citations provided:

MIMIA v QAAH of 2004 [2006] HCA 53 and NBGM v MIMA & Anor [2006] HCA 54

The RRT had affirmed decisions not to grant further protection visa to the visa applicants, Hazara Afghan nationals, who had been granted temporary protection visas in 2000. By majority, the High Court held that whether Australia has protection obligations to a person who has previously been recognised as a refugee under the Refugees Convention and Protocol depends upon whether a person satisfies the definition of a refugee in Article 1A of the Convention, in the context of other relevant articles. An express consideration of Article 1C (the ‘cessation’ provision), is not required. In considering an application for a further protection visa, the relevant criterion is whether the applicant is a person to whom Australia currently has protection obligations under the Convention.

VBAO v MIMIA [2006] HCA 60

The visa applicant applied for a protection visa on the basis that he had been harassed and received threatening phone calls and letters from members of a rival political party in Sri Lanka. The RRT refused the visa concluding the threats did not amount to serious harm as defined in section 91R of the Migration Act. The High Court held in dismissing the appeal that the reference to ‘threat to ... life or liberty’ in subsection 91R(2) meant a likelihood of harm not merely the communication of an intention to harm. The Court held that, depending on context, the word ‘threat’ could mean either a risk or a hostile communication. In the context of the Migration Act, and the definition of a fear of persecution in the future, it meant a risk of harm, and the RRT had found that there was no such risk.

SZBEL v MIMIA [2006] HCA 63

The applicant was an Iranian seaman who jumped ship in Australia in 2001. He applied for a protection visa, saying he feared for his safety because the ship’s captain knew of his attraction to Christianity. During questioning, the RRT did not seek clarification of aspects of the applicant’s original account which it later found implausible. The High Court held that the RRT failed to afford procedural fairness by not providing the visa applicant with a sufficient opportunity to give evidence or make submissions about the determinative issues arising in relation to the decision under review. The Court considered that an applicant appearing before the Tribunal would be entitled to assume that the reasons given for refusing to grant the visa in the delegate’s decision would define the issues and the Tribunal would be obliged to identify for the applicant any other issues it considers relevant.

Bodruddaza v MIMA [2007] HCA 14

The applicant was refused a Skilled – Independent Overseas Student (Residence) (Class DD) visa by a delegate of the Minister in January 2006. He sought relief in the High Court in July 2006, outside the prescribed period for making an application. The High Court examined the validity of the time limits in section 486A of the Migration Act for applying for review by the High Court in its original jurisdiction. The High Court held that the time limits were invalid as the time limit subverted the constitutional purpose of the remedy provided by paragraph 75(v) of the Constitution. The consequence of the judgment is that there is no operative time limit in which an application to the High Court must be made.

SZBYR v MIAC [2007] HCA 26

The applicant applied for a protection visa on the basis that his former wife’s family were Muslims of a different sect and a higher social status, and had used their influence against him. The protection visa was refused on the basis that this was a private matter outside the scope of the Convention. The High Court considered the application of section 424A of the Migration Act, with a majority of the Court holding that ‘information’ in the context of that provision, does not cover the Tribunal’s subjective appraisals, thought processes, or gaps or defects in the evidence. The High Court also affirmed the discretionary nature of the constitutional remedies in paragraph 75(v) of the Constitution.

SZFDE v MIAC & Anor [2007] HCA 35

The applicants feared persecution by reason of one of the applicant’s published views questioning the position of women in the Islamic tradition. The RRT affirmed a decision to refuse the applicants protection visas after the applicants declined to attend a hearing before the Tribunal. The applicants claimed that they had acted on the fraudulent advice of their migration agent. In a unanimous judgment, the High Court held that fraudulent conduct by a third party that precludes a Tribunal from exercising its imperative statutory functions will constitute a fraud perpetrated on the Tribunal as well as on the applicants. In this case, the advice of a deregistered migration agent and solicitor to the visa applicants not to attend a Tribunal hearing constituted such fraud.

SZATV v MIAC [2007] HCA 40 and SZFDV v MIAC [2007] HCA 41

The RRT had affirmed decisions to refuse the visa applicants, one a journalist and the other a trade unionist, finding that whilst the applicants may have faced harm in part of their home country, the applicants did not have a well-founded fear of persecution in relation to the whole country as it was reasonable to relocate to another part of the country. The High Court upheld the principle of relocation as an element of assessing well-founded fear, but indicated that because the Refugees Convention is concerned with ‘persecution’ and not, for example, living standards, in assessing the reasonableness of relocation, the RRT should focus on whether the conduct or attribute of the applicant which attracts the apprehended persecution would receive different treatment in another part of the country so as to remove the basis for a well-founded fear. Whether it is reasonable or practicable to relocate to another part of the country depends upon the particular circumstances and the impact upon the person of relocation.

MIAC v SZKKC [2007] FCAFC 105

The RRT affirmed a decision not to grant the visa applicant a protection visa in 1999. A copy of the RRT decision was sent to the migration agent who was authorised to act on behalf of the visa applicant. The visa applicant applied for judicial review of the Tribunal decision in March 2007. She gave evidence to the Federal Magistrates Court that she was told of the decision but not physically given a copy of the written statement of reasons until March 2007. The Full Court of the Federal Court considered the requirements and time limits for applying for judicial review in the Federal Magistrates Court under section 477 of the Migration Act. Noting the provisions which otherwise provide for decisions to be conveyed by mail or through an authorised recipient, the Court held that the time limits for applying for judicial review contained in section 477 only apply where the written statement of the Tribunal’s decision has been physically delivered to the applicant personally.

SZGSI v MIAC [2007] FCAFC 110

The visa applicants applied for protection visas claiming the primary visa applicant had a well founded fear of persecution for reasons of her religion. In affirming the decision to refuse the primary visa applicant the visa, the Tribunal relied upon oral evidence given by her husband, in the applicant’s presence. The Full Federal Court unanimously held that section 424A of the Migration Act applies to each applicant in a combined application for review. The Tribunal was obliged under section 424A to provide particulars of the oral evidence that had been given in her presence, to the primary visa applicant, and to invite her to comment, in writing.

Lee v MIAC & Anor [2007] FCAFC 62

The MRT sent a letter inviting the visa applicant to comment on the information that a separate decision had been made not to approve her employer as a business sponsor. The letter was sent addressed to the visa applicant, care of the authorised recipient the visa applicant had authorised to receive communications from the Tribunal. A copy of the letter was also sent to the applicant’s address. The Full Federal Court considered the notification requirements under the Migration Act and held, consistent with an earlier judgment, that the Tribunals are compelled to send letters addressed directly to the authorised recipient where one has been nominated, and that sending correspondence addressed to the visa applicant care of the authorised recipient, or sending correspondence to the applicant personally, does not satisfy the notification requirements.

Huynh & Ors v MIMIA [2006] FCAFC 122

The visa applicants applied for visas as dependents of their mother, who had applied for a spouse visa. The visa applicants were aged 23, 26 and 29 at the time of the visa application but claimed they remained financially dependent upon their mother. The MRT affirmed the decision to refuse the visa concluding they were dependent through choice, not necessity, and an appeal against this decision was dismissed by a Federal Magistrate. A Full Court of the Federal Court held that the definitions of ‘dependent’ and ‘dependent child’ in the Migration Regulations 1994 do not import any requirement of necessity. The question which is to be addressed is whether the person is, as a matter of fact, relying for support on the other person.

Jayasekara v MIMIA [2006] FCAFC 167

The MRT affirmed the decision not to grant the visa applicant a student visa on the basis that the applicant had not complied substantially with a condition requiring satisfactory academic results on his previous student visa. A majority of the Full Court of the Federal Court dismissed the appeal, holding that the condition which required certification of the student’s academic results as satisfactory required strict not substantial compliance. The Court noted that whilst the visa criteria required assessment of whether there had been substantial compliance with visa conditions, there were some conditions to which the concept of substantial compliance can have no logical application.

SZHWY v MIAC [2007] FCAFC 64

The RRT affirmed a decision to refuse to grant the visa applicant a protection visa. The Tribunal did not accept the applicant’s claims as truthful as he had not previously raised them. On questioning by the Tribunal, the visa applicant stated he had not disclosed the claims to his solicitor out of fear. By majority, the Full Federal Court held that the Tribunal was subject to the rules of legal professional privilege and committed jurisdictional error when it questioned the applicant about communications with a solicitor which was legally privileged information and did not inform the applicant that he did not have to answer the questions about privileged information.

Kim v MIAC [2007] FCA 138

The visa applicant had been refused an occupational trainee visa on the basis that the nomination by the employer had not been approved. The Federal Court held that the MRT does not have power to review the nomination for an Occupational Trainee visa. The Court held that a visa applicant could not seek review of such a decision, and that the decision was not an MRT-reviewable decision.

M v MIMA [2006] FCA 1247

The former visa holder had applied to the MRT for review of a decision to cancel his Global Special Humanitarian (Class BA) visa. The MRT invited the former visa holder to provide further information pursuant to section 359 of the Migration Act. The former visa holder failed to respond within the prescribed period, and the MRT proceeded to make a decision without inviting him to appear before the Tribunal. The Federal Court held that section 363A operates to remove any residual discretion the MRT may have to permit an applicant to appear at a hearing once there is non-compliance with an invitation to provide further information or comment on adverse information under section 359 or section 359A of the Act. (In a subsequent decision, Khergamwala v MIAC & Anor [2007] FMCA 690, a Federal Magistrate noted this judgment but considered binding an earlier judgment of the Full Court of the Federal Court, Uddin v MIMIA (2005) 149 FCR 1, which held that there is a discretion to permit an applicant to attend a hearing even if there is non-compliance with section 359 or section 359A.)

Social justice and equity

The role of the Tribunals is to enable people affected by Government decisions to have access to a review process that is fair, just, economical, informal and quick. That this is strongly embedded in our culture is reflected in how we interact with our clients and stakeholders and in the outcomes of reviews.

The Tribunals’ Service Charter expresses our commitment to providing a professional and courteous service to review applicants and other persons with whom we deal. It sets out general standards for client service covering day to day contact with the Tribunals, responding to correspondence, arrangements for attending hearings, the use of interpreters and the use of clear language in decisions. In 2007-08 the Tribunals plan to review and update the Service Charter in consultation with stakeholders.

Table 4.12 sets out the Tribunals’ performance during the year against service standards contained in the Service Charter.

Table 4.12 - Report against service standards
Service standard Report against standard for 2006-07 Outcome
1. Be helpful, prompt and respectful when we deal with you New Members and staff attend induction training emphasising the importance of providing quality service to clients. During the year, 177 staff attended Values and Code of Conduct training, 58 staff attended Cross Cultural Communication training and 25 staff completed training in Telephone Techniques. Achieved
2. Use language that is clear and easily understood Clear English is used in correspondence and forms. Staff use the Translating and Interpreting Service to communicate with clients from a non-English speaking backgrounds. There is a language register listing staff available to speak to applicants in their language. Achieved
3. Listen carefully to what you say to us The Tribunals book interpreters for hearings whenever they are requested by applicants. Interpreters were booked for 78% of hearings (69% MRT and 92% RRT) in 2006-07. The Tribunals employ staff from diverse backgrounds who speak 32 languages. Staff use the Translating and Interpreting Service to communicate with clients from non-English speaking backgrounds. Wherever possible, accredited interpreters are used in hearings. The Tribunals make audio recordings of hearings. Achieved
4. Acknowledge applications for review in writing within 2 working days In 2006-07 92% of applications for review (90% MRT and 95% RRT) were acknowledged in writing within 2 working days. Achieved
5. Include a contact name and telephone number on all our correspondence Standard letters include a Tribunal contact name and telephone number. Achieved
6. Help you to understand our procedures The Tribunals provide applicants with information about the Tribunals’ procedures at several stages during the review process. The Tribunals’ website includes a significant amount of information, including forms and factsheets. Tribunal case officers are available in each Registry to explain procedures over the counter or the telephone. There is an email inquiries address where applicants can seek general information about procedures. Achieved
7. Provide information about where you can get advice and assistance The Tribunals’ website, Service Charter and application forms provide information about where applicants can get advice and assistance. Factsheet MR2: Immigration Assistance notifies applicants of organisations and individuals who can provide them with immigration assistance. Factsheet MR4: Multilingual Advice explains in 16 community languages how applicants may contact the Translating and Interpreting Service. Achieved
8. Engage interpreters for hearings, where required The Tribunals book interpreters for hearings whenever they are requested by applicants. Interpreters were booked for 78% of hearings (69% MRT and 92% RRT) in 2006-07. Achieved
9. Attempt to assist you if you have special needs The Tribunals employ a range of strategies to assist applicants with special needs. Our offices are wheelchair accessible and hearing loops are available for use in hearing rooms. Wherever possible, requests for interpreters of a particular gender, dialect, ethnicity or religion are met. Hearings can be held by video. A national enquiry number is available from anywhere in Australia (calls are charged at the cost of a local call - not available from mobile telephones). 629 fee waiver applications were considered, with the $1,400 application fee waived in 304 cases. Achieved
10. Provide written reasons when we make a decision Copies of the written record of the Tribunal’s decision and its reasons for the decision are provided to the review applicant and to DIAC. Achieved
11. Publish and adhere to guidelines relating to the priority to be given to particular cases Guidelines relating to the priority to be given to particular cases are published in Principal Member Directions which are available on the Tribunals’ website. The Tribunals’ procedures require that the Principal Member be provided with a report each week on priority cases which have not been allocated to Members within specified timeframes. Partially achieved
12. Publish the time standards within which we aim to complete reviews Since the end of the year, the Tribunals have, in response to feedback, given more prominence to information about time standards. The time standards are set out in Principal Member Direction 2/2007 and are published on the Tribunals’ website. Partially achieved
13. Abide by the Australian Public Service Values and Code of Conduct (staff) New staff attend induction training, including in Values and the Code of Conduct. Ongoing staff complete refresher training at regular intervals. 177 staff attended Values and Code of Conduct training during the year. There were no investigations into suspected breaches of the Code of Conduct in 2006-07. Achieved
14. Abide by the Member Code of Conduct (Members) New Members attend induction training, including on the Code of Conduct. Members complete annual conflict of interest declaration forms and undergo performance appraisals by Senior Members. Achieved
Key: TickTickTick= Achieved; TickTick= Partially achieved; Tick= Not yet achieved.

The Tribunals are particularly conscious that a high proportion of clients have a language other than English as their first language. Clear language in letters and forms and the availability of staff to assist applicants are important to ensuring that applicants understand their rights and our procedures and processes. Interpreters are used extensively, being present in more than 69% of MRT hearings and 92% of RRT hearings.

The Service Charter is available on the Tribunals’ website, along with the Tribunals’ Plan, the Member Code of Conduct, the Interpreters’ Handbook and Principal Member Directions relating to the conduct of reviews.

The Tribunals’ website is a significant information resource for applicants and others interested in the work of the Tribunals. The publications and forms available on the website are regularly reviewed to ensure that information and advice are up-to-date and readily understood by clients.

The Tribunals have offices in Sydney and Melbourne which are open between 9.00am and 4.30pm on working days. There is an arrangement with the Administrative Appeals Tribunal (the AAT) for documents to be lodged and for hearings to be held at AAT offices in Brisbane, Adelaide and Perth. Our offices are wheelchair accessible and hearing loops are available in hearing rooms. The Tribunals also have a national enquiry number - 1300 361 969 - available from anywhere in Australia (calls are charged at the cost of a local call - not available from mobile telephones). Persons who need the assistance of an interpreter can contact the Translating and Interpreting Service (TIS) on 131 450 for the cost of a local call.

The Tribunals have a Disability Action Plan and Workplace Diversity Program. Further information about these strategies and plans is in Part 5.

Complaints

As mentioned above, the Tribunals’ Service Charter sets out the standards of service that clients can expect. It also sets out how clients can comment on or complain about the services provided by the Tribunals.

A person who is dissatisfied with how we have dealt with a matter or with the standard of service they have received, and who has not been able to resolve this by contacting the office or the officer dealing with their case, can forward a written complaint marked ‘confidential’ to the Principal Member. Alternatively, a person can make a complaint to the Commonwealth Ombudsman.

The Tribunals will acknowledge receipt of a complaint within 5 working days. The Principal Member will investigate the complaint and provide a written response as quickly as possible.

During 2006-07 the Tribunals commenced a review of our complaints handling procedures. It is anticipated that the Tribunals will issue more comprehensive guidance on complaints handling in early 2007-08.

The Principal Member investigated and provided a written response to 29 complaints during the year, 20 in relation to MRT cases and 9 in relation to RRT cases. 90% of complaints were responded to within 21 days. Table 4.13 sets out the number of complaints finalised over the last 3 years.

Table 4.13 - Complaints
Migration Review Tribunal 2006-07 2005-06 2004-05
Complaints resolved 20 17 7
Cases decided 6,203 6,532 8,308
Complaints per 1,000 cases 3.2 2.6 0.8
Refugee Review Tribunal
Complaints resolved 9 8 15
Cases decided 3,102 3,287 3,033
Complaints per 1,000 cases 2.9 2.4 4.9

A number of complaints related to delays in finalising matters while others were about the conduct of the review process, particularly Members’ conduct of hearings. The Principal Member considered that 41% of the complaints made to him during the year related to matters that could have been handled more appropriately. The Tribunals have responded to specific issues through changes to procedures and through training and development activities.

The Commonwealth Ombudsman finalised 22 complaints in relation to MRT cases and 8 in relation to RRT cases (see Table 4.14). The Commonwealth Ombudsman made no findings of administrative deficiency against the Tribunals during 2006-07.

Table 4.14 - Complaints to the Commonwealth Ombudsman *

* Comparable figures for 2004-05 are not available.
Migration Review Tribunal 2006-07 2005-06
New complaints 23 26
Complaints resolved 22 27
Administrative deficiency found 0 2
Refugee Review Tribunal
New complaints 7 4
Complaints resolved 8 5
Administrative deficiency found 0 0

Over 60% of applicants had a person acting as their representative during the review. With limited exceptions, a person acting as a representative is required to be a registered migration agent. Registered migration agents are covered by a Code of Conduct and are required to conduct themselves in accordance with the Code. The Migration Agents Registration Authority (MARA) is responsible for the registration of migration agents, monitoring the conduct of registered migration agents, and investigating complaints about, and taking appropriate disciplinary action against registered migration agents who breach the Code of Conduct or otherwise behave in an unprofessional or unethical way. The Tribunals referred 3 matters to MARA during 2006-07 relating to the conduct of migration agents.

Community and interagency liaison

The Tribunals hold regular community liaison meetings to provide a forum for the Tribunals to meet, exchange information and consult with interested stakeholders. Representatives who attend the meetings are from migration and refugee advocacy groups, migration agents associations, human rights bodies and other government agencies.

The aim of the meetings is to facilitate the distribution and exchange of information in relation to the Tribunals’ procedures and caseloads, to provide participants with updates on relevant developments and to consult with them, as appropriate, regarding these matters.

A community liaison meeting in Victoria in 2006. The Tribunals regularly meet with interested stakeholders to exchange information and consult on key issues affecting applicants.

The Tribunals place great importance on maintaining regular contact with key stakeholders in migration, refugee and advocate organisations. During the year the Tribunals met and consulted with senior representatives from a number of peak bodies, including the Migration Institute of Australia (the MIA) and the Commonwealth Ombudsman’s Office. Five Members delivered presentations at continuing professional development seminars conducted by the MIA in Sydney, Brisbane, Melbourne, Adelaide and Perth, and the former Principal Member presented a paper on effective advocacy at the MIA’s Immigration Law Conference, the Law Council of Australia’s Immigration Law Conference and the Lexis-Nexis Immigration Law Conference.

The Tribunals also hold regular high level and local liaison meetings with DIAC to discuss policy, operational and general business issues. There is also ongoing daily operational contact between the agencies. A joint Memorandum of Understanding (MOU) with DIAC reflects the statutory and operational relationships between the agencies. The MOU, which is under review, is available on the Tribunals’ website.

Reflecting the value the Tribunals place on networking with like organisations, Members and senior officers of the Tribunals continued an active participation in several bodies concerned with the operations of tribunals, including the national and state chapters of the Council of Australasian Tribunals, the Australasian Institute of Judicial Administration (AIJA) and the Australian Institute of Administrative Law (AIAL).

Commensurate with the high regard in which the Tribunals are held there have been numerous requests for briefings by the Tribunals and information from the Tribunals over the last year. For example, in August 2006 the Registrar gave a presentation to a delegation of senior officials from the Royal Thai Government Ministry of Interior in Canberra. In October 2006 the Tribunals hosted a visit by three officers from the Immigration Bureau within the Republic of Korea Ministry of Justice. That month the Tribunals also responded to a request from the United Kingdom Asylum and Immigration Tribunal for information about case management arrangements. In April 2007 the Tribunals briefed the visiting Director General of the Irish Naturalisation and Immigration Service and the Principal Director of Immigration, Irish Department of Justice, Equality and Law Reform; and two Japanese District Court Judges. In May 2007 the Tribunals donated some 28 excess reference volumes from our library to the Vanuatu Library, with the assistance of the Parliamentary Librarian. Two senior officers from the New Zealand Refugee Status Appeals Authority and a Member from the Cyprus Reviewing Authority for Refugees spent several days observing the Tribunals’ operations during June 2007.

The Tribunals value and benefit from interacting and exchanging information and ideas with colleagues, academics and researchers. 13 Members attended the 7th World Conference of the International Association of Refugee Law Judges (IARLJ) in Mexico City in November 2006. The Conference theme was Forced Migration and the Advancement of International Protection: the Interplay between Migration, International Human Rights Law and Refugee Status Determination. The former Principal Member attended the 4th Council of Canadian Administrative Tribunals International Conference in May 2007, where he delivered a paper on the subject of Supporting Independence while Ensuring Consistency: Experience of the Australian Immigration Portfolio Tribunals. Professor James Hathaway, the founding director of the University of Michigan’s innovative Program in Refugee and Asylum Law and a leading authority on international refugee law, visited the Tribunals and conducted seminars with Members in Melbourne and Sydney on the Status of International and Comparative Law on State Protection Issues. During June 2007 the former Principal Member and a number of other Members attended the 10th Annual AIJA Tribunals Conference as well as the 2007 National Administrative Law Forum conducted by the AIAL in Canberra.

During the year the Tribunals provided briefings on the Tribunals’ operations and caseloads to senior Australian diplomats, including the Australian High Commissioner to Bangladesh, the Australian Ambassador Designate to Burma, the Australian High Commissioner to Ghana and the Australian High Commissioner Designate to Nigeria.

Major reviews

On 14 June 2007 the Auditor-General presented to Parliament Audit Report No.44 of 2006-07: Management of Tribunal Operations – Migration Review Tribunal and Refugee Review Tribunal. This broadly positive report concludes that the Tribunals were effectively managing their operations.

The focus of the audit was on operations from 2001 to 2005, a period in which the Tribunals were co-locating and aligning the operations of the two Tribunals as part of a major business re-structuring.

The conduct of the audit provided benefits to the Tribunals by assisting to identify ways to strengthen the Tribunals’ capacity to plan, report and communicate more effectively with stakeholders, and the report provides a sound basis for the Tribunals to make improvements in the areas identified and in the planning and coordination of future organisational changes.

The five recommendations made by the Australian National Audit Office (the ANAO) were:

R1

The ANAO recommends that, to enhance their planning and performance monitoring capability, the Tribunals:

  • develop an annual operational plan which identifies priorities for major business activities and initiatives, and allocates responsibilities and specifies timeframes for their implementation; and
  • prepare an annual performance information framework which consolidates details of Tribunal performance information which is required to be collected and reported for accountability purposes.
R2

The ANAO recommends that the Tribunals strengthen their outcomes and outputs frameworks set out in their Portfolio Budget Statements, by:

  • articulating the basis on which the Tribunals assess their contribution to the quality and consistency of decision-making concerning migration and temporary entry visas and protection visas and their professional and effective working relationships with stakeholders; and
  • specifying appropriate targets or other bases of comparison for quality indicators for measuring the efficiency of Tribunal outputs, in terms of case processing timeliness, complaints and appeals against decisions.
R3

The ANAO recommends that the Tribunals strengthen external reporting through their Annual Reports by:

  • addressing the impact of their outputs and their contribution to outcomes; and
  • including clear assessments of output performance, reporting performance results against PBS targets; and providing more comprehensive analysis of factors affecting performance.
R4

The ANAO recommends that the Tribunals enhance internal management reporting, by introducing:

  • an overarching ’balanced scorecard’ type management report which covers their full range of PBS performance indicators; and
  • common formats, across both Tribunals and both Registries, for management reports on particular areas of Tribunal performance.
R5

The ANAO recommends that the Tribunals enhance the quality of services to applicants and their representatives, by:

  • committing to regular review of the joint service charter, more widely promoting the charter, and making information about overall time targets for the completion of reviews more accessible to applicants;
  • reviewing application forms to improve the quality of guidance to applicants and the user friendliness of their structure and format;
  • issuing more comprehensive guidance on complaints handing and providing Members with more systematic complaints feedback; and
  • conducting regular surveys of the satisfaction of applicants and their representatives with Tribunal service performance.

The Tribunals agree with all five recommendations and are taking action to implement them. The Report is available on the ANAO website at www.anao.gov.au.

Significant changes in the nature of functions or services

The Migration Amendment (Review Provisions) Act 2007 made amendments to the Migration Act with effect on and from 29 June 2007. The amendments included:

The amendments were the subject of an inquiry and report by the Senate Standing Committee on Legal and Constitutional Affairs. Submissions and evidence were taken from a range of interested parties, including the Tribunals. The Committee completed its report in February 2007.

The amendments apply to applications for review made to the Tribunals on or after 29 June 2007. A Principal Member Direction (PMD 3/2007) on the conduct of hearings has been issued which provides guidance to Members of the Tribunals about the provision of information to applicants during hearings of the Tribunals. The Principal Member Direction is available on the Tribunals’ website.

Developments since the end of the year

On 19 July 2007 the Minister for Immigration and Citizenship announced the appointments of Mr Denis O’Brien as the Principal Member of both Tribunals and Mrs Mary Urquhart as the Deputy Principal Member of the RRT. Mrs Urquhart was subsequently also appointed as an acting Senior Member of the MRT.