The Administrative Review Tribunal Bill: A missed opportunity for ending migration exceptionalism and creating a unified approach for administrative review
This post is part of AUSPUBLAW's forum discussing the abolition of the Administrative Appeals Tribunal and the proposed Administrative Review Tribunal.
Daniel Ghezelbash, Mia Bridle and Keyvan Dorostkar
20.3.2024
The introduction of the Administrative Review Tribunal Bill 2023 and associated Consequential and Transitional Provisions Bill provides a once-in-a-generation opportunity to redesign Australia’s federal administrative review system. The reforms will abolish the Administrative Appeals Tribunal (AAT) and replace it with the new Administrative Review Tribunal (ART).
This is a welcome move, given the many problems that have compromised the operation of the AAT in recent years. This includes ever increasing backlogs, particularly in the Migration and Refugee Division (MRD), which as of June 2023 made up 83% of the tribunal's caseload, and was dealing with a backlog of over 54,000 cases.
The government has justified its decision to abolish the AAT by reference to the high number of political appointments which they argue have undermined the AAT’s independence and eroded the quality and efficiency of its decision-making. This view is supported by our analysis at the Kaldor Centre Data Lab, which shows that Coalition-appointed tribunal members were 44% less likely to find in favour of Protection Visa applicants, when compared to their ALP-appointed counterparts.
With the creation of the ART, the government aims to provide a mechanism of review that is fair and timely, and which improves the transparency and quality of decision-making. At the time of writing, over 40,000 Protection Visa applicants are waiting for the AAT to review their application and facing median wait times of over three years. It is therefore crucial that the new ART is developed in line with the government's stated aims.
In this post, we draw on data and analysis from the Kaldor Centre Data Lab to evaluate the design of the new ART, with a particular focus on decision-making within the MRD. It is important to note the analysis in this post is limited by the data which we were able to access through the freedom of information process and annual reports. Access to more detailed data would open opportunities for more robust analysis in relation to whether the bills will achieve the Government’s policy objectives and not have unintended consequences. It is essential that the new ART adopts a robust approach to data collection and transparency to enable ongoing evaluation of its operation and to identify areas in need of further reform.
Some of the reforms are very welcome and are likely to significantly improve decision-making across the tribunal and MRD. This includes the introduction of an independent merits-based appointment and re-appointment process, the abolishment of the failed Immigration Assessment Authority (IAA) and fast-track process, as well as the re-establishment of the Administrative Review Council to monitor the integrity of the new administrative review system.
Another hallmark of the reforms is the focus on creating simple, flexible and unified procedures for administrative decision making across the new body. Yet the decision to maintain certain separate restrictive rules and procedures in the MRD undermines these efforts. Of particular concern are the codification of the natural justice hearing rule and the shorter and more inflexible time limits for lodging applications for review. It will mean that many of the benefits in terms of flexibility and adaptability of procedures set out in the ART Bill, and associated efficiency gains, will not apply to the MRD where they are most needed.
In the remainder of this blog post, we trace the history of attempts to limit procedural rights for migration and Protection Visa applicants, and demonstrate that such efforts have not had their intended goal of increasing efficiency or certainty in decision-making. Our findings in this regard align with studies abroad that show that the best way of enhancing efficiency, particularly in the context of refugee cases, is through robust procedural safeguards that ensure applicants are supported in being able to put forward and articulate their claims for protection.
Separate Procedural Code for Migration Decisions
Historically, the government has maintained a carve out for separate, more limited procedures for decision-making in relation to the administrative review of migration and refugee cases. These efforts are based on the assumption that limiting procedural rights of applicants leads to more efficient decision-making and reduces the scope for judicial review. Our analysis shows that there is no evidence that the separate procedures have had this impact in practice.
The separate procedural code for migration decision-making was first introduced in the Migration Reform Act 1992 (Cth). A core element of the code was the attempt to preclude the application of the well-established common law rules of natural justice for certain aspect of migration and protection visa review, replacing them with a statutory formulation of procedural fairness requirements. The elements of the code have been tweaked over the years, generally with a view to making them more restrictive and responding to judicial decisions which have read down or circumvented the application of certain provisions. This includes through the Migration Legislation Amendment Act (No 1) 1998 (Cth); the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth); and the Migration Amendment (Review Provisions) Act 2007 (Cth). Some key ways in which the statutory formulation of the procedural fairness requirements is narrower than common law rules of natural justice relate to notice requirements (with provisions relating to ‘deemed receipt’) and the types of adverse information that need to be disclosed to the applicant.
These were accompanied by other measures designed to restrict access to judicial review of migration decisions, including the introduction of the privative clause by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) and the concept of a purported privative clause decision in the Migration Litigation Reform Act 2005 (Cth).
Much like the provisions in the Consequential and Transitional Bill, the stated goal of the procedural code and other associated amendments was to make the process clearer and more efficient, and to reduce the number of applications for judicial review of migration decisions. However, the code of procedure and associated reforms have not achieved either of these goals in practice.
In a joint submission to the 2012 Administrative Review Council review into federal judicial review in Australia, the Migration Review Tribunal (MRT) and Refugee Review Tribunal (RRT) argued that the code had been the subject of significant litigation yet had not improved the quality of decision-making, and that:
the experience in the migration jurisdiction has been that codification aimed at supplanting the natural justice hearing rule has distinct limitations. Although the codification of procedure may have the advantage of setting out a framework for the parties, experience shows that it leads to unexpected interpretation, uncertainty and extensive litigation... Statutory codes of procedure, whilst providing a framework for the parties, cannot replicate the adaptiveness of common law procedural fairness.
More recently, AAT Deputy President Jan Redfern reiterated a similar critical view of the resource and efficiency implications of the codified natural justice hearing rule for migration and protection visa matters.
There is also no evidence that the procedural code and associated reforms have been effective in its goal of reducing the number of judicial review applications for migration and refugee cases. The graphs below set out data we have compiled on judicial review of migration and refugee decisions from 1988 to 2023 (see here). The data shows that the number of applications for judicial review of migration and refugee decisions has steadily increased over time, and there are no correlations between the introduction of the procedural code or subsequent amendments and the number of judicial review applications.
Similarly, the procedural code and other associated amendments have not correlated with a reduction of the success rate of judicial review applications. While the percentage of migration and refugee cases which were successful before the federal courts has fluctuated over time, there are no clear correlations between the introduction of the procedural code and subsequent amendments, and the rates of success at judicial review.
It Is important to note the limitations of this form of descriptive statistical analysis. As the adage goes, correlation is not causation. There are a multitude of other factors beyond the procedural code that may influence both the number of applications for judicial review (such as the volume of primary visa applications refused in a given year) and the success rate at judicial review (including the grounds of review relied upon, and the impact of litigation in expanding or narrowing the grounds of review available). The onus of carrying out this more detailed statistical analysis that can control for these variables is on the Department of Home Affairs, given that they are more likely to be able to access the required data points. In this regard we echo the Law Council of Australia’s recommendation that the Department ‘provide a stronger justification for the proposed retention… of a codified natural justice procedure in the Migration Act, with specific regard to the ART Bill’s reform objectives of fairness, efficiency and accessibility’.
Immigration Assessment Authority
The IAA serves as another example of how reducing substantive and procedural rights fails to increase efficiency, and instead leads to unfairness for applicants. Applicants at the IAA are subject to even more restrictive statutory procedures set out in Part 7AA of the Migration Act 1958 (Cth). Decisions are generally made on the papers without a hearing, and the Authority can only consider ‘new information’ provided by applicants in exceptional circumstances. While this may have reduced the average time taken for the IAA to finalise a decision, the very high rates at which cases are overturned at judicial review in the federal courts has led to significant delays.
From 2015 to 2023, the IAA made over 10,000 decisions, 79% of which were the subject of judicial review in the federal courts. 37% of these applications were ultimately successful, generally resulting in the cases being remitted back to the IAA for reconsideration. On average, the judicial review process takes more than 2-3 years. Clearly, any time saving generated by shortened procedures at the IAA stage is almost certainly more than negated by the delays caused by the high rates of judicial review of these cases. When the system is considered holistically, the‘'fast trac’' process has not led to any efficiency gains, but rather caused significant additional delays.
Table 1. Remittal and set aside rates for judicial review cases of IAA decisions
Aside from the significant rates on which IAA decisions are overturned by the courts, further data raises concerns about the quality of decision-making at the IAA, and the fact that errors may be being made due to the lack of procedural safeguards. Data compiled by the Kaldor Centre Data Lab shows that there was significant variation between the success rates of cases considered by the IAA and the AAT, with the AAT exhibiting higher success rates in every country with more than 20 applicants. For example, applicants from Iraq were more than five times more likely to succeed at the AAT, applicants from Afghanistan were more than four times more likely to succeed, while stateless applicants were more than seven times more likely to succeed at that AAT than at the IAA.
This data reinforces the fact that limiting procedural rights leads to decreased decision-making quality and fairness, in turn leading to very high rates of judicial review applications which are successful. Therefore, rather than improving efficiency, restricting procedural rights can backfire and cause greater inefficiencies and backlogs. In light of this, we welcome the decision to abolish the IAA alongside the development of the ART.
Separate Procedures in the ART
The reforms do take a step in the right direction by unifying provisions and procedures within the MRD. This represents a significant structural shift to the Migration Act 1958 (Cth). Part 7 of the Act (which deals with the review of protection visa decisions) will be repealed, and the review of those decisions is to be folded into Part 5, which previously only dealt with non-protection visa decisions. There are also welcome changes in terms of the removal of certain special procedures for the MRD; this will be a step towards a more unified approach to review across the new tribunal. This will give members in the MRD more flexibility than they currently have, including the ability to conduct direction hearings and conferences, along with recourse to broader dismissal and directions powers.
But the maintenance of the codification of natural justice hearing rule for the MRD in the Migration Act 1958 (Cth) poses a risk to both the fairness and efficiency of decision-making. As the discussion above shows, the long-standing attempts to codify procedures and procedural fairness have not been effective in increasing efficiency or reducing judicial review cases, and on the contrary may be contributing to unfairness and inefficiencies in decision-making.
The Consequential and Transitional Bill preserves s 357A of the Migration Act 1958, which codifies the natural justice hearing rule for the MRD, and inserts subsection (2C), which confirms that the MRD is not required to observe any principle or rule of common law. It also amends s 359A(4) to allow the Minister to further restrict the types of adverse information that needs to be put to the application through regulations. This is particularly concerning as it will allow the imposition of additional restrictions on procedural fairness that go beyond what is currently permitted.
Several other provisions of the Consequential and Transitional Bill also exclude the application of provisions set out in the ART Bill to applicants in the MRD. This includes the imposition of stricter and less flexible timeframes for lodging applications for review. For example, section 347(5) provides that s 19, which allows the ART to extend the period during which the applicant may apply to the tribunal for review of a decision, does not apply to reviewable migration decisions or reviewable protection decisions. The lack of flexibility is very concerning given the increased barriers that migration and protection visa applicants may face in meeting strict prescribed deadlines and accessing legal assistance. This includes ‘insecure housing, limited employment opportunities, complex mental and physical health issues and limited English fluency.’ Similarly, s 347(3)(a) provides that, where an applicant is in immigration detention, an application for review must be made within seven days of the applicant being notified of the decision – whereas other applicants are permitted a 28-day period. This is ‘a wholly insufficient timeframe’ for applicants to read and understand the contents of the decision and the appeal process, and to have meaningful access to legal assistance.
Conclusion
The ART and Consequential and Transitional Bills double down the false premise that separate and more restrictive procedures are required in the MRD to increase efficiency. However, our analysis shows that the increased codification of procedures in the MRD has not increased efficiency or fairness, and accordingly it is unlikely to serve the new tribunal’s objectives. In practice, this approach may have the opposite effect, and the rigidity of procedures may actively be contributing to both inefficiencies and unfairness for applicants. The failure to abolish the separate and rigid migration procedures, including stricter, shorter deadlines and the exclusion of common law natural justice, will perpetuate many of the issues the MRD is currently facing. Rather than continuing to limit procedural rights of applicants, the Consequential and Transitional Bill should be amended to harmonise the procedures for review in the MRD with the other divisions of the ART. This should be accompanied by measures which ensure that applicants in the MRD have access to high quality independent legal advice, which research shows can contribute to both the fairness and efficiency of decision making.
*The authors have updated the data available at this link to include data on judicial review of migration and refugee decisions for 2022-23. Please contact the authors directly to request this.
Daniel Ghezelbash is Associate Professor and Deputy Director of the Kaldor Centre for International Refuge Law, UNSW Law & Justice
Mia Bridle is a PhD candidate at the Kaldor Centre for International Refugee Law, UNSW Law & Justice
Keyvan Dorostkar is a PhD candidate at the Kaldor Centre for International Refugee Law, UNSW Law & Justice.
Suggested citation: Daniel Ghezelbash, Mia Bridle and Keyvan Dorostkar, ‘The Administrative Review Tribunal Bill: A missed opportunity for ending migration exceptionalism and creating a unified approach for administrative review’ (20 March 2024) <https://www.auspublaw.org/blog/2024/3/the- administrative-review-tribunal-bill-a-missed-opportunity-for-ending-migration-exceptionalism-and-creating-a-unified-approach-for-administrative-review>