This is the fifth in a special series of posts on the 50th anniversary of the Kerr Report, examining whether Australian administrative law is still fit for purpose. To see other posts in this series, click here.
In this blog post, I am going to try a new approach and attempt Eleanor Porter’s ‘glad game’, focusing on Administrative Appeals Tribunal (AAT) decision making under s 501 of the Migration Act 1958 (Cth). I do so without wishing to deflect from or minimise the difficulties in our current system of administrative law and with the AAT. Section 501 consists of ‘a complex web of powers providing for the refusal or cancellation of visas by the Minister (personally or by the delegate), and for the revocation, setting aside and review of the decisions’. The cancellation of visas may lead to a number of severe consequences, including immigration detention and removal from Australia. Can we be glad about anything in this terribly fraught area of law? Hopefully, after reading this post, the reader’s answer will be yes.
The very existence of review by the AAT
The first positive, which must never be taken for granted, is the fact that review by the AAT even exists for visa cancellation. Granted, AAT review is excluded where decisions are made under s 501 by the Minister. However, when the decision is made by a delegate, the applicant may seek review by the AAT – a cornerstone of the new administrative law devised by the Kerr Committee.
The AAT is armed with significant inquisitorial and remedial powers, including to affirm, vary or set aside a reviewable decision. As the High Court recently observed in Makasa ‘the function of the AAT … is “to do over again” that which was done by the primary decision maker’. As an independent body, the AAT conducts ‘quasi-judicial’ review, which generally culminates in a hearing in which the parties participate, give evidence, present arguments and make submissions. In The Anatomy of an Administrative Decision, the first President of the AAT, Sir Gerard Brennan, identified three stages of the fact-finding process: gathering, testing and finding. ‘Testing’, he noted, ‘marks the clearest departure from the administrative to the judicial model’:
It is at the heart of the procedure by which conflicts of evidence or challenges to factual assertions are resolved. It is an essentially court-like procedure.
Noting that the AAT is bound by procedural fairness, he observed that this fact-finding process and the testing of evidence ‘gives the [AAT] a greater capacity than the primary administrator to resolve evidentiary conflicts and challenges’ resulting in improved fact-finding. Elsewhere I have argued that with respect to s 501 decision making, the AAT is often caught between competing models of administrative justice. In marked contrast to its usual flexibility, the procedural rules governing the review of s 501 decision making are constraining, which impacts on, amongst other things, its ability to gather evidence. For example, s 500(6H) of the Migration Act provides that the AAT must not have regard to any information presented orally in support of the applicant’s case unless the information was set out in a written statement given to the Minister at least two business days before the AAT holds the hearing. Despite this environment of adversarial legalism, the AAT’s goal, that is the fair adjudication of claims, which encompasses Sir Gerard’s tripartite process of fact-finding, remains the same.
In the midst of controversy relating to AAT decision making, in part related to decisions under s 501, in March 2018, the former Minister for Home Affairs asked the Joint Standing Committee of Migration to review, amongst other things, ‘the efficiency of existing review processes as they relate to decisions made under section 501 of the Migration Act’. In a radio interview on 16 May 2017, the then Minister said:
Look, my approach is that I think people should have their fair day in court. I think they should have in a legal system like ours the opportunity to contest the matter. Where I get frustrated is we go through layer after layer after layer and there’s more opportunity in migration law frankly, than there is in many aspects of the criminal law and it is costly to the Australian taxpayer. In the end I believe very strongly that people that come to our country have an onus to abide by the law, abide by our values etc, and if they don’t, then they can expect to be deported.
In its report, the Committee found that ‘there is no doubt that merits review in the AAT involves a reconsideration of cases already decided by the Department, requires human resources and costs the tax payer’. However, the Committee recognised that merits review was different to primary decision making and judicial review because ‘it provides an opportunity for the applicant to state his or her case orally’ and fortunately, was ‘persuaded that the AAT generally hears its reviews quickly and efficiently’. While it made numerous recommendations, it did not recommend removal of the AAT’s jurisdiction to review s 501 decision making.
Recognition of the value of AAT review
Applicants wishing to challenge ministerial or AAT decision making have access to judicial review, a crucial avenue of challenge for the individual concerned. In the face of various attempts to restrict judicial review, such as privative clauses, that applicants may even seek judicial review is a plus. But that is not the point that I want to focus on. Here, I want to observe that in reviewing the lawfulness of decision making, the courts recognise that AAT decision making does, in some respects, differ from other forms of administrative decision making.
For example, in the recent Federal Court case of EBD20 the applicant’s refugee and humanitarian visa was mandatorily cancelled. The Minister refused to revoke the visa cancellation, whereupon the applicant applied for a protection visa. The protection visa was refused by a delegate and the applicant successfully sought review of that decision. The Minister subsequently refused to grant him a protection visa. The applicant argued, amongst other things, that the Minister had failed to give proper, genuine and realistic consideration to the fact that the AAT had determined that the applicant was not a danger/risk to the Australian community. Justice Kerr held that the AAT’s decision and its reasoning was more than ‘just another piece of material’ before the Minister. The AAT’s decision was made after hearing the applicant’s and the witnesses’ evidence and their cross-examination and was ‘the most independently sourced material available to the Minister referrable to that subject matter’. The AAT’s decision and reasons therefore deserved proper, genuine and realistic consideration. As Allsop CJ reminds us in Hands:
…where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people.
Its contribution to wider debate
Finally, it is an understatement to note that section 501 is controversial. It allows, amongst other things, the cancellation of visas of refugees and long-term permanent residents, who have lived in Australia for decades. Ministerial Direction No 90, which commenced on 15 April 2021, provides that, when delegates or the AAT are deciding whether to cancel a visa or revoke a visa cancellation, they must have regard to primary considerations, such as the protection of the Australian community and the best interests of minor children, as well as other considerations, such as international non-refoulement obligations and the strength, nature and duration of ties to Australia. In considering, weighing and ultimately striking a balance between these various interests, inevitably there will be controversy. The third and final positive that I want to note is that the intersection of government policy, the law, decision making and review contributes to a much wider discussion and debate about the boundaries of our community and the treatment of those considered not to be members of the community. As Love and Thoms demonstrates, these fundamental questions continue to trouble our society and universal agreement is by no means forthcoming.
Like others, this area of law also raises wider questions relating to the appropriate role of institutions, such as the AAT. Operating in a politically charged environment, some of its decisions have caused controversy. As the Chair of the Joint Standing Committee on Migration observed:
Some criminals whose visas have been cancelled, however, have not been removed from Australia. Some have been saved from deportation through appealing the Government’s decision at the Administrative Appeals Tribunal (AAT)…In around 20 per cent of cases, the AAT has sided with non-citizens and overturned the Department’s decision…
While the AAT conducts merits reviews efficiently, its decisions may or may not always meet the community’s expectations. Reasonably, Australians look for an explanation when drug dealers, violent criminals and repeat offenders are offered a reprieve by the AAT, which can be found when examining its decision record.
Fundamental questions are raised in light of the ongoing debate relating to AAT decision making in the s 501 context. In arriving at the correct or preferable decision, is the AAT too independent or not independent enough? How should the AAT balance these competing interests and values? Does its decision making reflect community expectations? Debate is critical, even if we never reach agreement and the AAT performs a valuable function in articulating relevant interests, ordering and prioritising our values and stimulating this discussion. As Sir Gerard observed, ‘the necessity of publicity and free discussion in a democracy is obvious’.
Here, I have endeavoured to recognise the existence and benefit of the AAT, using its review of s 501 decision making as an example. As the Full Federal Court observed in Brown:
The [AAT] occupies an important independent review function intended to bring administrative finality to a contested decision after a proceeding and after reaching a view as to the correct and preferable decision.
The Chief Justice of the Federal Court recently emphasised that the AAT ‘is an independent quasi-judicial body of skill and stature’. These are not features which can be taken for granted. In my view, that we have the AAT is something which needs repeated acknowledgement and (sometimes) defence. It deserves our respect and appreciation and should never be taken for granted.
The author wishes to thank Mark Aronson, Janina Boughey and Lynsey Blayden for their comments on this post.
Chantal Bostock is a Senior Lecturer at UNSW Law & Justice, and a former member of the AAT.
Suggested citation: Chantal Bostock, ‘Not “just another piece of material”: the value of Tribunal review’ on AUSPUBLAW (16 July 2021) <https://auspublaw.org/2021/07/not-just-another-piece-of-material-the-value-of-tribunal-review/>