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Immigration Daily News Warning of MRT hearing delays after 31 tribunal members sacked
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Warning of MRT hearing delays after 31 tribunal members sacked
The AAT president has warned of delays and backlogs in the migration review decision due to the lack of members while an opinion piece in The Australian suggests that the purge of members may have been due to the tribunals overturning far too many of DIBPs decisions on appeal.
The amalgamation of the Migration Review Tribunal (MRT) - Refugee Review Tribunal (RRT) and Social Security Appeals Tribunal (SSAT) with the Administrative Appeals Tribunal (AAT), is a move that has been described as the biggest shake-up of Australian administrative law in 40 years.
Under the new system, the AAT will hear challenges to government decisions on visa applications and social security benefits, in addition to its existing jurisdiction over workers compensation, disability support, freedom of information requests and veterans’ entitlements.
It is estimated that the new AAT will adjudicate 40,000 applications every year and yet save $7.2 million over four years in “shared back-office functions and property holdings”.
AAT president and Federal Court judge Duncan Kerr will retain leadership of the AAT
The net effect of the change to the MRT-RRT was the effective purge 31 members. Just seven secured new appointments at the Migration and Refugee Division of the AAT.
The practical impact is a shortage of tribunal members. AAT President Duncan Kerr was quoted as saying that “Without sufficient numbers of members being appointed to the new Social Services, Child Support and Migration Review Divisions of the AAT, the work required in those divisions will suffer delayed hearing and backlogs”
The Australian has suggested that the purge of the members may have been due to unsatisfactory decisions. It noted that before the change of government, the RRT in particular was approving 90 per cent of appeals from those whose asylum claims had been rejected.
“These figures could mean immigration officials were getting things consistently wrong or it could mean the RRT had been consistently in error. The only way to be sure would be to challenge a large number of RRT decisions in a court,” the report noted.
“Had the previous government been prepared to defend the decisions of more of its bureaucrats, it might have resulted in some clear signals to the RRT. If those signals had been taken to heart, the current purge might not have taken place.”
Comments
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Monday, 20 July 2015This is a worry. I have an appeal waiting that is based on family violence with a strong case now at the 15 months mark. This is 2.5 years from when the event happened. It is going to be difficult for the applicant to demonstrate the same level of fear as she had at the time, simply because she has made every attempt to move on. The evidence is there but the Tribunal places a great emphasis on the Hearing. I am concerned at the huge numbers of appeals by students that have no chance of success. many of these do not meet the regulations and simply cannot be won no matter how hard they try. Eg IELTS not good enough. These clog up the system. I hope the new AAT can do more than complain about the numbers. I hope they can do some creative management of processes.
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Monday, 20 July 2015
The long wait also keeps those who should be kicked out quickly here for years in some cases.
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Monday, 20 July 2015
Another solution would be to raise the fees to cover the cost of administrating the Tribunal. They are, however, already pretty pricey.
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Monday, 20 July 2015
Raising the partner fees by 50% and 100% hasn't stopped them. $1663 is a small price to pay for people to stay in Oz for another year or so.
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Monday, 20 July 2015
Life is getting harder in Australia, but life offshore is worse. People are willing to risk despite having little chance of appeals and reviews that RMAs and lawyers know will never succeed. They are desperate and any extra time they can have while working in Australia is better than facing reality in returning to their home country with little prospects. If the tribunals suspect that the applicant has no grounds, then limit their time and speed up the hearing. The reviewee and appealant will have less time to prepare. I have heard of visa holders who purposely enrol in courses, then after visa grant, withdraw from their course. They wait for the NOICC, then cancellation. They now have review rights and lodged their MRT hoping that they will get their hearing in 1 year. These visa holders just want more time and will look to apply for a BVE with work rights. These are people who are abusing the system and clogging up the tribunal.
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Monday, 20 July 2015
Glen, whilst this may be the purpose of SOME, it is not what MOST clients want. A lot of our work is about dealing with cases that were hastily, badly or negligently put together which end up in Ministerials or very sorry situatons where people have to regularise their status in order to make an orderly exit. Whether someone has grounds or not for the review they are seeking, natural justice, common law and procedural fairness gives the applicant that right. whilst some *may* clog up the system with reviews which are not going to go anywhere, it is still a right and a fundamental one, particularly in the current environment where we would not want this to change... Now it is clear that the exercising of this right will take considerably longer to materialise and we'll have to suck it up and deal with it... the client is not the problem, it's the system which is being squeezed...and not necessarily by applicants but by governments of all persuasions and consistently when something's gotta give. Cheers.
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Monday, 20 July 2015
I do a lot of appeals but do not touch the hopeless student ones. The people I feel really sorry for are those that have a good chance of winning on appeal but where the applicant is outside Oz, usually partner visas. They do speed up some of the partner ones onshore but only where they have had a visa cancelled or refused before the partner visa. I have seen them have a Hearing at 5 months. It is all a sad game of good people being held back by the undeserving ones, mixed in with some shocker decisions from the Dept.
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Monday, 20 July 2015
I think we have to change the narrative here and understand this for what it is - when government introduce changes which impact on a group of people (review applicants, refugees and asylum seekers, etc), we often focus on who to blame for it (the impact) as if it we need to come up with some kind of social redress about the deserving over the undeserving rather than focus on the rights that people (still) have under the law. It's the Tribunals which determine whether applicants deserve to have their cases heard, remitted, overturned or affirmed, not us... what makes one client more deserving than another? that's not our call - our call is to provide advice about the law, what can be done, how it can done, how long it will take and perhaps go to some length to explain the legal framework in greater detail. We all want the best outcome for clients and merits review is one such pathway when the department gets it terribly wrong or there are circumstances which require a client to go through this process. We're kind of swallowing the bait so that instead, we focus away from the real issue, when this is really about control and the separation of powers between the parliament and the judiciary, which is fundamental for our legal system to work. The rest is nothing more than very noisy static, me thinks.
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Monday, 20 July 2015
On this topic... an interesting publication by the ANU on Administrative decision-making in Australian Law bu Alan Freckelton - Chapter 6 in particular, which refers to Judicial Review. Can be downloaded for free, which makes it an even more important resource. If you can't download it (or rather, open it) the chapters can be read online and probably saved as pdf, if one can access ebook.pub program to open it with.
Enjoy.
http://press.anu.edu.au/apps/bookworm/view/Administrative+Decision-Making+in+Australian+Migration+Law/11591/cover-1.xhtml -
Thursday, 23 July 2015
MRT and RRT are both a review of poor decisions by Case Officers of which there are many and a chance to give clients protection for periods that may allow them to apply for alternatives or to consolidate their financial position before finally departing Australia. Most want to stay here but as rightly pointed out above sometimes it is better to leave for the 3 years and then reapply if you cannot overcome 4013 and 4014 or 4020 criteria. It is complicated and affects adversely applicants on BVE and BVC without work rights. Understanding the timing of the decisions is critical to our advice to the applicants and extremely complicated when there are many options to discuss. Expiry of IELTS(especially for Migrants and Students) and other issues relating to health can also cause problems. Birth of children with health issues etc. These can cause failure for some visas if remitted. How to advise the client varies depending on the timing of the MRT RRT (AAT Now) hearings. Up to date information from the RRT and MRT are critical to how we approach our advice to clients. Basically timing changes many things.
I don't think speedy decisions are to the advantage of Immigration in the decision making process. I have personally seen a case where the 457 visa was remitted to Immigration and the decision took more than 18 months after the remitting date. In the mean time the sponsorship expired and the new application for sponsorship was refused. This applicant should have been on the 457 soon after the remitting because they met all the requirements then.
Immigration blog
Aside from any legal consideration - this could be simply seen as a way of purging the system of applicants who are entitled to 'their day in court (or Tribunal)' but are force to choose not to go down that path because of the delays which are likely to be years now, particularly those who are holders of Bridging Visas C and E, some with no prospect of ever being able to obtain permission to work, etc, who may decided it is better to way offshore for three+ years rather than remain in Australia to do so, even if their case has merit. An interesting way of 'balancing' the system, cutting back on applications and related considerations, etc., etc., etc.; though I suspect that this provides better opportunities for those who may have to go down the path of a tribunal refusal to access Ministerial intervention to show they have been in Australia for a considerable period of time, show their benefit to the community and their positive contribution... I suppose that in difficult times, one can always turn a negative into a positive for some of our clients... what do other people think?