Migration, social security appeals face crackdown in wake of Callinan report

A review of the Administrative Appeals Tribunal recommends a tough new regime.

Former High Court justice Ian Callinan has handed down his report into the Administrative Appeals Tribunal.

A sweeping review of the Administrative Appeals Tribunal has recommended a tougher regime for social security payment appeals and a plan to ease the huge backlog of migration cases.

A long-awaited 195-page report by former High Court judge Ian Callinan recommended that membership of the AAT should be confined to lawyers. It found the AAT was “not always meeting community expectations” and long delays were encouraging migrants to lodge applications for review.

It has recommended the government slash the AAT’s bureaucracy and said it was “anomalous” that individuals seeking to challenge social security payments were given two opportunities to challenge government decisions, rather than one.

In a bid to restrict migration appeals, the report said the government should consider legislation for a “new information rule” which would give the AAT discretion to receive or refuse evidence not before the original decision maker.

Mr Callinan said “almost everyone” with experience in migration affairs had told him there were applicants “not small in number”, and some of their representatives, who “game the system, well knowing there is an automatic entitlement to a bridging visa”.

By making applications to the AAT and the courts they were able to prolong their stay in Australia, he said.

The report said the migration review division should have an “immediate” injection of more full-time members to deal with its backlog of cases.

It said members in the division were “overworked” and “under-resourced”, presiding over cases that were often complicated, distressing and involved shifting factual and legal scenarios.

While delays and under-resourcing continued, “reviews to be made will multiply, deserving applicants will continue to live in uncertainty, and dishonest or ineligible applicants will be able to remain within the country”.

Mr Callinan said a “strong case” had been made to limit the “often-changing material” on which migration applicants could rely.

He also recommended a “counsel assisting” be available for complex cases to help members in the migration division deal with unrepresented litigants, who sometimes did not speak English. In some cases, the department did not attend and the member was left to navigate a “labyrinth of facts” and to determine the reliability of applicants.

The report revealed back office staff had been assisting members with their decisions, including by preparing templates for their decisions and in some cases, “checking” decisions and in at least one case, “almost insisting” on changes beyond proofing.

The report warned this was “inappropriate” and said it was the community’s expectation that the whole of the decision-making process was undertaken by members, not public-service staff, “however well-intentioned staff may be”.

The AAT now handles about 59,000 lodgements a year. More than half (52 per cent) are migration and refugee cases. The remainder are a mix of challenges to government decisions in areas including social security, veterans affairs and taxation.

The report recommended slashing the AAT’s back-office staff, pointing out there were more than twice as many staff as there were full-time members.

The high proportion of its decisions affirmed on appeal suggested that the decisions of most officials on most occasions were “of reasonable quality and consistent”.

However, the report revealed numerous government departments and agencies had raised concerns about the varying quality and consistency of its decisions.

The report said there was “disharmony” in the AAT’s ranks, with members raising concerns about bullying, a lack of mentoring, threats to their independence and benchmarking in the migration division which enforced “targets” of finalised cases.

Mr Callinan said Australia’s avenues to challenge migration decisions were “no less, and probably more” generous than other countries — with opportunities to take a case to the Department, the AAT, the Federal Circuit Court, the Federal Court, and in some instances, the High Court.

“Any criticism that Australia does less than other common law countries to provide review of applications made by foreigners to enter and remain in Australia are not well founded,” he said.

He gave his stamp of approval to the controversial “fast track” system aimed at clearing the backlog of 30,000 cases lodged by claimants who arrived by boat under Labor. He said the Immigration Assessment Authority, which handles these cases is “an effective and fair decision-maker in the cases with which it deals”.

The report said all further appointments and reappointments should be of lawyers and “on the basis of merit”.

This recommendation comes after Labor attacked the government over its recent AAT appointments, with 14 of the 86 being former Coalition MPs or staffers.

The tribunal’s caseload of migration and refugee matters doubled in the two years to June 30 last year. And it was only able to finalise 18,000 of the 38,000 migration and refugee cases filed in the 2017-18 financial year.