Political stacking leaves appeals tribunal in chaos
Most annual reports from government agencies are anodyne, dispassionate and, frankly, dull. But not this year’s report from the Administrative Appeals Tribunal. It reads as a cry for help.
Despite being couched in standard bureaucratese, the clear message from the AAT – the body charged with providing independent review of a wide range of government administrative decisions, from child support to veterans’ entitlements – is that it is not coping.
The number of cases lodged with the tribunal in 2017-18 increased dramatically, while the number of cases dealt with fell. As a result, the tribunal now faces an enormous backlog of appeals, dating back to 2014. “... the total number of applications we have on hand has grown to exceed 53,000 at 30 June 2018,” the report said.
The crisis centres on one sector covered by the tribunal: immigration. “Approximately four-fifths of this pending caseload are applications in the Migration and Refugee Division,” the report said.
This chaos is in large measure the government’s own doing. Since coming to power five years ago, it has run down the AAT, purged the body of experienced people, abandoned any pretence of merit-based appointment and stacked it with political appointees, including scores of former conservative politicians, failed candidates, former staffers, party members, donors and other mates. Some of them – although not all – lack any relevant experience and are either unwilling or unable to do the job.
At the end of the 2017-18 year there were 44,436 unresolved migration and refugee applications, 82 per cent more than at the end of the previous year.
There were 11,488 refugee lodgements in that year alone, an increase of almost 250 per cent compared with two years prior. The number of refugee cases still “on hand” at year’s end was 14,445.
The problem is partly due to the sheer number of people applying for visas to Australia. But many current and former senior members of the Migration and Refugee Division of the AAT, who have spoken to The Saturday Paper, attribute the crisis in substantial part to maladministration by the government.
“There was really big spill of old experienced members and the introduction of people who, in some cases, were not interviewed at all by the panel set up to consider appointments,” says one former AAT member. “More commonly we were recommended to be reappointed but were not, and some who were not recommended got the jobs anyway.”
An example: back in 2015 a member of longstanding with the Migration and Refugee Review Tribunal was up for reappointment to the newly expanded AAT. A three-member selection committee of senior public servants was charged with assessing the person’s record. Their written review – seen by The Saturday Paper – was glowing. The committee concluded the person was “very suitable” and said it would “strongly support” reappointment.
But it didn’t happen. Instead, others, with uncertain expertise, were appointed.
“Many of those appointed dubiously had very significant Coalition connections and, what was really scandalous, some of them were given seven-year appointments,” a former member said.
Overall, the number of decision-makers in the AAT has fallen significantly. There now are 30 fewer members than there were when the former Migration Review Tribunal and Refugee Review Tribunal were merged with the AAT on July 1, 2015. Meanwhile, the caseload has ballooned. Current funding arrangements provide for 18,000 cases a year. Last year, there were 38,000 lodgements.
Yet the AAT’s annual report recorded a $9.8 million surplus last year “due to a lower than expected staffing and members”. In other words, they had money left over because they could not find enough staff to spend it on.
Of course, there is nothing new in political considerations affecting appointments. What made it different this time was the sheer scale of the purge, the perception there was no consideration of competence, and the length of the appointments. Usually, in the past, they had been for three years, which allowed for a member’s performance to be reviewed.
Like judges, members of the AAT can only be removed under exceptional circumstances before their term is up.
“Full-time members of the tribunal don’t have to make a decision at all. They can be pressured by the senior member, but they are simply paid whether they do their job or don’t bother,” a former member says. “I was absolutely scandalised. We all were.”
Speaking at the launch of the new, expanded AAT, then tribunal president Duncan Kerr voiced his concern that so few MRT-RRT members had been reappointed.
“The number of members transferring across in the transitional arrangements from the SSAT [Social Security Appeals Tribunal] and the MRT-RRT is significantly fewer than was planned for and that which is required,’’ he said. “Without sufficient numbers of members being appointed with assignments to the new Social Services and Child Support and migration review divisions of the AAT, the work required in those divisions will suffer delayed hearings and backlogs.’’
His words look very prescient now. But the purge continued, as did the political appointments.
Home Affairs Minister Peter Dutton led the government’s attack on the tribunal, calling some of its decisions “infuriating”. He said tribunal members were out of line with community expectations and should be losing sleep over their rulings.
“People who believe that they’re above the law, above scrutiny by the public – I think should be the ones that shouldn’t rest too well at night,” he told 2GB last year. “If people are deciding matters and they aren’t meeting community expectations, then I don’t see why people shouldn’t face scrutiny over that.”
At the end of July this year, at the request of shadow attorney-general Mark Dreyfus, the Parliamentary Library compiled a list of 40 political appointments to the tribunal. The list was drawn from published media articles.
Significantly, the library report also went to the AAT website to determine how many appointments had been made under the current government. It found an extraordinary rate of turnover.
“When adding the President and Deputy Presidents to the total number of Senior Members and Members, 292 out of 302 first appointments or reappointments, or 96.7 per cent of first appointments or reappointments, occurred after 7 September 2013,” the report said.
The library did not separate new appointments from reappointments, but current and former AAT staff suggest Dreyfus is right when he says that “the stacking of the Administrative Appeals Tribunal with Liberal appointees is unprecedented and deeply troubling.
“The AAT is an important body of review for decisions made by the executive. It’s vital that it functions properly and is composed of members with appropriate experience and expertise,” he tells The Saturday Paper.
“Labor is examining options to improve the selection process for AAT appointees, so that a situation like this one can never happen again.”
We’ll see about that if and when Labor returns to government.
Meanwhile, the AAT in general and the Migration and Refugee Division in particular struggles on with a large number of appointees who, according to a current senior member, are not up to the jobs they have been given.
He traces the dysfunction back to the amalgamation in July 2015, and the subsequent mass appointments made by the then attorney-general George Brandis.
“Suddenly, the division head was stuck with a whole bunch of senior members who had been appointed, the majority of whom had no prior experience in decision-making, let alone in tribunal matters. This created chaos.
“The division head was forced to slot people into roles called ‘practice leaders’, to come up with strategies to look at what was happening with the caseload, but with no supervision. And others are really just sitting there, not making decisions. We have many of them who are not performing, who can’t or won’t make decisions.”
Another “absurd” consequence of the appointment of inexperienced people, this source said, was that some attempted to meet their decision targets by simply “overturning decisions of the department because it’s the easier thing to do”.
The reason for that, he says, is if they decide against an applicant, that applicant is likely to appeal.
“You have to be certain you argue the refusal in a way that would stand scrutiny by the Federal Court. Experienced members spend a lot of time ensuring their reasons will withstand scrutiny. But if you set aside the decision of the Department of Immigration, send it back to the department saying the person meets the criteria, nobody is going to appeal it, no matter how poor the reasoning.
“Bear in mind some of these people have been appointed by the Liberal government to supposedly take a hard line, replacing members who were allegedly too soft.”
Apart from the many anecdotal instances of dysfunction – of political appointees not meeting their performance targets or making poor decisions that fail in the court or display bias – the bottom line is that there are not enough people to do the job.
“We’ve made pleas for more appointments,” this source says, “but with a big element of trepidation about who we might get.”
What has happened to the AAT is both a scandal and a tragedy, in the opinion of one former longstanding member. It’s a tragedy because “the AAT has been a cornerstone of democracy and the rule of law” since 1975.
“The whole notion that citizens could seek merit reviews of decisions of government was quite revolutionary, really,” the former member says. “And this government is trashing a venerable institution.”
It’s a scandal, the member says, because the government continues to talk up its tough response to asylum seekers coming to Australia by boat even as it fails in its handling of large and growing numbers of people arriving by other means.
“What the public doesn’t necessarily get is that of the people about whom the government mostly speaks – those who arrived by boat from places like Iran and Iraq, Afghanistan and Pakistan – most have a valid claim to refugee status,” the former member says. “Those people are locked up in punitive conditions, designed to deter others.
“Meanwhile, we have people who come in on visas – visitor visas, student visas, all kinds of visas – and with the intention of applying for asylum. These people are not locked up or sent offshore. They’re given a work permit and access to Medicare and allowed out to live in the community for the next however many years it takes for their case to be decided.
“These people are mostly from countries like Malaysia and China and other places that generally are not considered refugee-producing countries.”
Statistics from the AAT annual report bear out this claim. Protection applications from Malaysians increased more than five-fold in 2015-16, compared with the previous year, to just over 2000. The number doubled again in 2016-17 to 4230, and last year there were 5825.
There has been explosive growth, too, in applications from Chinese citizens. Last year, more than 2800 applied for protection visas.
It makes for a snowballing problem. The more people who come, the more the system is gummed up and the longer the delays in dealing with cases. The longer the delays in dealing with cases, the more people are encouraged to apply, knowing it will buy them time in Australia.
“Delay begets further applications,” one senior member says.
Even as Australia continues to hold people in offshore detention, claiming that bringing them here would be a “pull” factor, the bureaucratic gridlock onshore has become a new pull factor.
“The backlog continues to grow. It’s at a level now that was unimaginable a few years ago,” says one senior member still working within the Migration and Refugee Division.
To show how the system gets gamed, he cites the burgeoning number of arrivals from Malaysia, who now have easy access to this country through an e-visa system.
“This has become the way by which Malaysian nationals come to Australia to work. As soon as they arrive on an electronic visa, they put in an application for a protection visa,” he says.
“Their claims are thin, like, ‘I was chased by gangsters in Malaysia.’ ”
These claims are assessed first by the department, a process that is, he says, “relatively quick, maybe 12 months”. Within 28 days of a refusal, the applicant can apply for a review.
“Then it comes to us and sits here in our compactus,” he says. “At the moment you can apply for a protection visa and rest assured it will take three years to come to the tribunal for review. We now have a strategy to deal with the oldest cases. But the cases we are now looking at, in this financial year, are cases that were decided by the department in 2014 or 2015.”
Once the tribunal process has made a determination, there is a further avenue of appeal, via the Federal Court, which can add several years more to the delay.
Ultimately, the current member says, 98 per cent of these applications are found to be “unmeritorious”.
“In the meantime, though [the applicants] can just disappear into the community and work,” he says.
This situation would be worrying enough if these people were working in legitimate enterprises, and if they were genuinely Malaysian nationals with genuine identity documents.
Reportedly, though, Malaysian criminal groups and corrupt officials are providing people with fake identities. A couple of months ago, the ABC investigations unit detailed the case of 38 Vietnamese nationals who went to Malaysia on the promise of false passports to get them into Australia. In that case, they did not get what was promised, and the criminal enterprise was busted.
The report quoted a Malaysian security expert’s explanation that citizens of most South-East Asian nations, including Vietnam, Indonesia and the Philippines, can enter Malaysia without a visa, and, once there, fraudulently obtain a passport for as little as $A1300.
It further quoted the former commissioner of the Australian Border Force Roman Quaedvlieg, saying that Australian authorities are “deeply concerned” about extremists entering the country using fake Malaysian identities.
The threat of terrorists or criminals entering Australia is primarily one for security agencies, of course, and perhaps a slight digression from our main narrative. Except in one way. For years, going all the way back to the Tampa affair in 2001, politicians have sought to conflate people arriving by boat with the threat of terrorism and criminality. But malefactors of various kinds are offered far better cover by the chaos of the visa system.
In a statement to The Saturday Paper, Attorney-General Christian Porter suggested the ever-growing backlog of cases was due to the volume of work, rather than shortcomings with those appointed by his government.
“Appointments to the AAT are made to ensure the tribunal has an appropriately broad skill set amongst its members,” he said.
“The government works closely with the AAT to ensure the appropriateness of resourcing to ensure high-quality merits review with a minimum of delay.
“Different to many decision-making bodies, such as courts, the AAT experiences significant variation in the volume of work and the type of work – often in relatively short time frames.
“It is well known that migration matters coming into the AAT have increased considerably in recent times.”
Porter said the government and the AAT had “formulated a plan to deal with that workload inside existing resources, which will be explained in due course”.
Porter also said he looked forward to receiving the report of the statutory review of the amalgamated AAT from former High Court justice, Ian Callinan, AC QC.
Callinan is due to report by the end of this month.
And that’s not a moment too soon, as the backlog of migration and refugee cases grows inexorably larger.
This article was first published in the print edition of The Saturday Paper on Nov 24, 2018 as "Political stacking leaves tribunal in chaos". Subscribe here.