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Migration appeals tribunal struggling with workload and clearance targets

AAT says it has high number of refugee and migration lodgements and ‘lower than required’ people and resources

The tribunal tasked with hearing tens of thousands of refugee appeals, as well reviewing other visa, tax, child support and workers compensation decisions, is struggling under a growing workload despite record clearance rates.

The administrative appeals tribunal (AAT) received, finalised and was left with the highest number of applications on record last year.

However its annual report, released on Wednesday, revealed it is not keeping pace with the growing number of cases, or with the clearance targets set by the federal budget.

The AAT hears appeals of administrative decisions made under commonwealth law, including those related to workers compensation, child support and tax. The migration and refugee division – which hears appeals on visa and protection claims – forms about 86% of its caseload, but has a clearance rate of just 58%.

The tribunal finalised 44,413 cases in 2018-19, 11% more than the previous year and more than it expected to complete, but still 3% below the targets set in the most recent federal budget.

“This is due to the fact that the AAT’s ability to finalise applications is primarily dependent on the resources, particularly the number of members, available to deal with our caseload,” the report said.

The AAT’s struggles with its growing caseload, and criticisms of government appointments to its membership have dogged the institution.

It received more than 60,500 applications in the last financial year, but while it finalised more than in previous years, it was left with 30% more on hand by the end of June.

The 58% clearance rate in the refugee and migration division was 11 percentage points higher than the previous year but continued “to be affected by sustained high level of lodgements and the lower than required number of people and financial resources currently available to undertake that work”.

Almost 60,000 refugee and migration appeals are currently before the AAT, forming 86% of the entire AAT load.

Despite a 5% drop in the number of cases lodged and a 16% increase in the number finalised, there remained 34% more active cases on hand than the previous year.

The growing backlog is partly explained by statistics which show far fewer cases were finalised within 12 months of lodgement. That rate fell from 57% in 2017-18 to just 36%.

The majority of active cases – 65% – related to migration cases.

The report said the division had focused on finalising older and more complex cases, as well as cases of visa cancellations, a strategy which the AAT said had contributed to a longer average time.

Visa cancellations, including those under the controversial Section 501 character provisions, have repeatedly made headlines in recent years as the federal government seeks to broaden the parameters by which it can cancel visas.

Almost 60% of all AAT cases about protection visas were lodged by Malaysian nationals, a cohort of people currently subject to concerns about worker exploitation.

A parliamentary inquiry found in February that organised crime and illegitimate labour hire companies were taking advantage of immigration laws to exploit workers who were waiting for their claims to be processed – which in some cases can take up to eight years and which has cost $46m in the past three years.

It applied mostly to Malaysians on electronic travel authorities.

“These individuals are exploiting Australia’s protection visa and merits review systems by repeatedly applying for merits review of the decision to refuse their protection visa application, allowing them to stay in Australia for a significant amount of time and seek employment,” the parliamentary inquiry found.

The report said 9% of all finalised refugee case reviews were remitted back to the department of home affairs for reassessment, up from 5% the previous year.

The report said the low proportion of decisions being overturned was due to the volume of cases brought by Malaysians who were mostly found not to be refugees.

AAT reviews affirmed the department’s original decision in 57% of cases, dismissed 19% for not meeting application requirements and 5% for the applicant failing to appear. Ten per cent of cases were withdrawn.

A trial of new powers, which allow an AAT member to authorise a senior staff member to take evidence from an applicant on the member’s behalf, saw a marked increase in case clearance rates, increasing from 47% overall to 58%.

As the number and proportion of refugee and migration cases grew, the AAT has continued to divert additional resources to the division, including additional members and the cross-assignment of members from elsewhere.

However, with recent appointments the number of members in the migration and refugee division is still not yet at the levels prior to July 2015 when there were half the number of applications.

“A further increase in the number of members and staff, together with legislative changes to enhance our case management options and powers, is needed to address the backlog and sustained high level of lodgements,” it said.

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