DIMA Annual Report 1998-99
Sub-program 5.3: Review
Performance outcomes
(i) Review reforms
In March 1997, the Minister announced changes to refugee and immigration decision-making to improve efficiency, credibility and accountability. Legislation effecting most of these changes was passed in December 1998, the most prominent change reducing the three Portfolio review bodies to two review tribunals by merging MiRO with the independent Immigration ReviewTribunal (IRT) to form the independent Migration Review Tribunal (MRT).
The MRT began operating on 1 June 1999. The Refugee Review Tribunal (RRT) remains a separate body reviewing the Department's decisions on refugee applications.
Other measures include clearer articulation of the Minister's general expectations and directions to tribunal members, and improved use of resources.
Changes to the immigration review structure are consistent with foreshadowed Government action to introduce further reform of merits review tribunals across Portfolios.
The Government is proceeding with the amalgamation of the Administrative Appeals Tribunal, the Social Security Appeals Tribunal, the Migration Review Tribunal and the Refugee Review Tribunal into a single tribunal, to be called the Administrative Review Tribunal (ART). The immigration and refugee review process will remain a discrete division within the proposed ART.
Top of PagePerformance outcomes
(ii) Tribunal appointments and liaison with tribunals
On 5 February 1999, the Acting Principal Member of the MRT was appointed until 31 January 2000 to assist the implementation phase of the Tribunal.
After a full merit selection process, two Senior Members, one full-time Member, and six part-time Members were appointed to the MIRT from 1 June 1999 until 31 January 2001.
Another full-time Member was appointed from 15 June 1999 until 31 January 2001, and another part-time Member from 9 June 1999 until 31 January 2001.
Further appointments to the MRT will be made to ensure the Tribunal maintains an appropriate capacity to handle expected review workloads.
The terms of appointment of some full-time and part-time Members of the RRT were due to expire in 1998-99, and some Tribunal Members resigned in 1998-99.
The term of appointment of Dr Peter Nygh, the Acting Principal Member of the RRT, ceased on 31 May 1999. The Minister decided to appoint Mr John Godfrey, the then Deputy Principal Member, as Acting Principal Member for six months from 1 June 1999.
In June 1999, the Governor-General in Executive Council appointed one new Member to the RRT and reappointed 21 existing RRT Members whose terms of appointment were due to cease in June/July 1999, these appointments to end on 31 January 2001.
An open merit selection process began in early 1999 for further Senior Member and Member candidates for RRT appointment, and was well underway toward the end of 1998-99. About 1000 inquiries were received, resulting in 641 applications. It is expected that the appointment process will conclude in August 1999.
The Government is proceeding with its plan to amalgamate the RRT, the M RT, the Administrative Appeals Tribunal and the Social Security Appeals Tribunal into a single merits review tribunal, to be known as the Administrative Review Tribunal.
Relationships between the tribunals and the Department are cooperative and effective.
Regular meetings occur and processes are in place for appropriate information sharing and matters of priority processing.
Top of PagePerformance outcomes
(iii) Ministerial public interest intervention powers
Where a review authority affirms a decision to refuse the grant of a visa, the Minister may intervene under various sections of the Migration Act 1958 to substitute a more favourable decision where he considers that that is in the public interest.
The Minister's intervention powers are not delegated and are non-compellable, that is, he is under no obligation to consider or intervene in a case. The Minister is required to table in Parliament his reasons for intervening in a case.
Where the review decision was made by MIRO, the Minister could intervene under s345, and where the decision was made by the IRT, the Minister could intervene under s351.
Transitional provisions of the Migration Act 1958 have preserved these powers now that MIRO and the IRT have ceased operating. Where the decision is made by the MRT, the Minister may intervene under s351, where the decision is made by the RRT, the Minister may intervene under s417, and where the decision is made by the AAT, the Minister may intervene under s391 or s454.
Support to the Minister is provided by departmental officers who examine cases for possible referral for his consideration, which occurs in all cases returned from the various review bodies where the applicant has received an unfavourable decision, or where there has been a request from the applicants, or others, for Ministerial intervention.
Guidelines have been issued by the Minister for identifying cases he wishes to have referred to him, and submissions are prepared for his consideration in such cases.
All cases where a person requests Ministerial intervention are brought to the attention of the Minister, other than repeat requests which include no new information.
In 1998-99, the Minister intervened in a total of 233 cases to grant visas, 152 cases using his powers under s417 and 81 cases under s345, s351 and s391. In 1997-98, the Minister intervened in a total of 90 cases using his powers under s417 and 35 cases under s345, s351 and s391.
Top of PagePerformance outcomes
(iv) Fair, just and easily understandable MIRO decisions
The MIRO can affirm the Department's decision, or set aside the decision, or remit the case to the decision-maker for further consideration.
In the 11 months of its operation in 1998-99, MIRO set aside 904 primary decisions out of a total of 5163 decisions made. The reasons for those set aside were as follows:
The degree of understanding of, and client satisfaction with, MIRO decisions may to some extent be measured by the number of cases which proceed to further review by the IRT/MIRT, although this process is also a means of delaying departure from Australia. In 1998-99, 43 per cent of MIRO decisions went on to further review by the IRT/MIRT compared with 32 per cent in 1997-98, 30 per cent in 1996-97 and 62 per cent in 1995-96.
A further possible indicator of fairness is the proportion of M IRO decisions subsequently set aside by the I RT. In 1998-99 (11 months) it was 45 per cent, 50 per cent in 1997-98, 40 per cent in 1996-97 and 55 per cent in 1995-96.
In its first month of operation, the IVIRT's set aside rate was 35 per cent. Not all set-asides occurred because the IRT/VIRT perceived a fault in the MIRO decision.
For example, a large number occurred because new information was provided to the I RT/M RT, which the Tribunal was required to consider. A range of other factors, including changes in caseload composition, and precedential changes in the law as a result of litigation can also have an effect on set aside rates.
From time to time, cases involving disputed visa decisions are remitted to the Portfolio by a court, or by the Administrative Appeals Tribunal, either by direction following a hearing, or by consent prior to hearing.
Since amendments to the Migration Act 1958 in 1994, most of these cases are reconsidered by the relevant independent review tribunal. Though some remain for the Department to reconsider.
In 1998-99, 43 such cases were received for reconsideration compared with 57 in 1997-98. There were 53 cases finalised resulting in 46 approvals, one refusal, and six cases otherwise resolved. Comparable figures for 1997-98 are 88 cases finalised, 48 approvals, 33 refusals and seven cases otherwise resolved.
Reasons for setting aside decisions
Primary decision error |
New information |
Policy / legislation change |
Different weight given |
Other |
Total |
|
| Causes set aside | 21 |
590 |
32 |
193 |
68 |
904 |
| As a % of set asides | 2.3 |
65.3 |
3.5 |
21.3 |
7.5 |
|
Performance outcomes
(v) Quick and cost efficient MIRO review processing
The number of review applications lodged increased in 1998-99 (11 months) to 6256 from 5310 in 1997-98.
The MIRO aimed to conclude all review applications within 120 days of receipt. I n 1998-99 (11 months) 49 per cent were finalised within 120 days against a target of 90 per cent, the same as in 1997-98 and 1996-97.
In 1998-99 (11 months), there were 5845 review applications were finalised by MIRO against the revised 12 month target of 5850. In 1997-98 there were 6528 and in 1996-97, there were 5705.
Despite applying more skilled and experienced staff than provided for in the Resource Agreement, MIRO produced decisions within the agreed Department of Finance and Administration Resource Agreement unit costs.