Migrant cases swamp courts

Migration case backlogs in the Federal Circuit and Family Court of Australia have overtaken those in family law and have more than doubled in the past four years.

Immigration Minister Andrew Giles. Picture: NCA NewsWire / Gary Ramage

Migration case backlogs in the Federal Circuit and Family Court of Australia have overtaken those in family law and have more than doubled in the past four years, prompting the courts to call for help from the federal government.

As of June 30 the courts’ ­ migration caseload of 16,198 is larger than the family law caseload of 15,607.

“The relentless workload ­associated with migration cases, and the growing number of pending matters continues to be an area of great concern,” a court spokesperson told The Australian.

Despite implementing “a number of innovations to try and address these longstanding issues including broadening the role of registrars to support and assist with migration cases, and the greater use of technology … further funding and consideration of other measures is required”.

The courts were allocated $71.5m in last Tuesday’s federal budget, of which $63.75m was for national expansion of its world-leading family court risk assessment pilot, the Lighthouse Project.

The 2020-21 budget allocated funding for two additional judges, four judges’ associates, two registrars and four support staff to assist with its migration caseload, but there had been no funding allocated for migration work since.

The courts’ Division 2 is the entry point into the system for family law cases, and deals with all but the most complex, which are escalated to Division 1. It is also the forum in which visa ­applicants can appeal decisions by the Administrative Appeals Tribunal, the Immigration Assessment Authority and some decisions by the Minister for Immigration, Citizenship and Multicultural Affairs. While registrars can be used at the pre-hearing stage, most applications need a judicial hearing.

According to the courts’ ­annual report, in 2021-22 the court finalised only 27 per cent of migration ­applications within 12 months of them being filed, compared to 43 per cent in the previous year. In the same period, the average time to finalise cases leapt from 19 to 28 months.

The clearance rate, which is the number of cases finalised compared to those filed during the year, was 62 per cent, including cases from earlier years. This compares to the family court section, which cleared 122 per cent and the general federal law section, which cleared 113 per cent ­(excluding migration).

Average time from filing a ­migration case to delivery of a ­reserved judgment was 33.5 months, compared to 23.5 the previous year.

Migration law is regarded as difficult because of extra burdens such as the lack of representation, the use of interpreters, and the large number of written judgments required.

The report revealed that about half of cases pending involved protection visa decisions made by the AAT and IAA, 26 per cent involved student visa refusals and cancellations, and 11.9 per cent involved skilled ­migrant visa refusals and cancellations.