External scrutiny

Judicial decisions and decisions of administrative tribunals

Each year, thousands of decisions made under the Migration Act 1958 by officers of the department (as delegates of the minister) are reviewed by tribunals and courts.

The Migration Review Tribunal (MRT) can review most visa decisions. The Refugee Review Tribunal (RRT) reviews decisions in relation to protection visas. The Administrative Appeals Tribunal (AAT) can review certain business visa cancellation decisions, and also character related refusal and cancellation decisions (except when the decision is personally made by the minister). The AAT also has jurisdiction in decisions relating to registration of migration agents, and in decisions under the Australian Citizenship Act 2007 and the Freedom of Information Act 1982 (FOI Act).

Most court proceedings challenging visa decisions take place in the Federal Magistrates Court. Appeals can be brought from the Federal Magistrates Court to the Federal Court and from the Federal Court to the High Court, when special leave is given by the High Court. Cases where the department is being sued for damages are usually heard in state courts (district courts or supreme courts).

During 2007–08, a total of 4302 matters were resolved before the courts and the AAT. A total of 95 per cent of matters that proceeded to a defended hearing before the courts were resolved in the minister‘s favour.

The bulk of the department‘s litigation caseload arises from applications for review of RRT decisions and, to a lesser extent, MRT decisions. These cases often raise technical issues about the tribunals‘ compliance with mandatory statutory decision making procedures. Although most aspects of this legislation have been in operation for almost a decade, new issues continue to emerge. For example, in SZKTI v. MIAC (28 May 2008), the Full Court of the Federal Court ruled that the RRT must provide a written invitation to a person when seeking additional information. This ruling involved a novel interpretation of a provision (section 424) which has been in the Migration Act since 1999. The judgment creates practical difficulties for the RRT, and the minister has applied for special leave to appeal to the High Court in this and some related cases.

Under the Migration Act, serious consequences can flow from litigation outcomes that render notification invalid due to technical failures by the department and tribunals when communicating with clients. For example, notification of a refusal decision may be legally invalid, even where it is received. One consequence is that information on departmental systems about a client‘s status, which was correct at the time it was entered, may become incorrect as a result of an adverse judgment.

Commonwealth and Immigration Ombudsman‘s reports on 247 cases of immigration detention

In mid-2005, the government referred the cases of 247 persons who had been held in immigration detention and later released under the systems descriptor ‘not unlawful’, to the Commonwealth and Immigration Ombudsman for review. The Ombudsman‘s reports on these cases, in 2006 and 2007, found either legal or factual deficiencies in most of the cases. The reports also highlighted problematic practices in the use of the detention power in section 189 of the Migration Act.

The department established the 247 Detention Remedial Action Project to undertake its own detailed review of each case to determine and implement appropriate remedies for each individual in the 247 cohort. Over the past year, the project made significant advances in the reform process. The secretary‘s review contains a detailed commentary on the progress of the project.

Commonwealth Ombudsman

The department received a total of 569 complaints from the Commonwealth and Immigration Ombudsman in 2007–08. This was an increase of 10.3 per cent on the previous year.

Of the 569 new complaints investigated by the Ombudsman in 2007–08, 382 were resolved. Of all new complaints, administrative deficiency was identified in 6.8 per cent of complaints (39 cases).

A total of 72 complaints were brought to resolution and reported as administratively deficient in 2007–08. Of these, 39 were received in 2007–08 and 33 had been carried over from previous years.

The Ombudsman‘s office has noted that the increase in administrative deficiency is explained in part by the number of Freedom of Information (FOI) complaints they have received, and also as a result of improvements and changes within their organisation relating to identification and recording of these complaints.

The Ombudsman‘s office also noted that where a complaint was made about a delay in FOI processing, administrative deficiency was recorded where the processing time exceeded the statutory timeframe. In 2007–08 the department eliminated a substantial backlog and implemented new procedures to process FOI requests within statutory timeframes.

Human Rights and Equal Opportunity Commission

The department received seven new complaints in 2007–08, compared to 16 in the previous year.

Of the 15 complaints closed in 2007–08, one report, ‘Complaint by Mr Huong Nguyen and Mr Austin Okoye against the Commonwealth of Australia (Department of Immigration and Citizenship, formerly the Department of Immigration and Multicultural and Indigenous Affairs) and GSL (Australia) Pty Ltd‘, in which the department was a respondent was tabled in parliament by the Human Rights and Equal Opportunity Commission on 13 March 2008.

Reports by external bodies

In August 2007, the Ombudsman released the Lessons for Public Administration—Ombudsman Investigation of Referred Immigration Cases, August 2007 report that draws together ten lessons relevant to all areas of government from the eight reports covering the 247 referred immigration detention cases. The Ombudsman noted that the administrative problems and errors exposed in the reports were not unique to immigration administration and that agencies generally should heed the lessons to guard against administrative error and ensure good decision making. The department has worked hard since 2005 to address the weaknesses noted.

The Ombudsman‘s Notification of Decisions and Review Rights for Unsuccessful Visa Applications report was released in December 2007. While acknowledging the significant challenges facing the department in terms of the complexities of the issues involved, the report concluded overall that the management of notifications of adverse decisions is not coordinated or consistent. The department accepted the Ombudsman‘s recommendations and has made improvements to the management of notification letters as part of its reform process and ongoing commitment to service delivery excellence.

In April 2008, the Ombudsman published the Administration of Detention Debt Waiver and Write-Off report. The Ombudsman‘s investigation found that the department is administering debt waiver and write-off according to the legislative and policy requirements but there is scope for improvement, particularly in relation to the information provided to clients; timeliness and prioritisation in processing cases; and the consistency and reasonableness of decisions. The department has taken significant steps to address the recommendations identified in the report through reforms to governance and overall improvements in the debt management function and client services.

In June 2008, the Ombudsman published Timeliness of decision making under the FOI Act 1982 report. It recommended that the department conduct a wide-ranging review of its FOI and information disclosure processes having regard to specific recommendations in the report. The department accepted all the Ombudsman‘s recommendations, and pointed to strong and steady progress in improving its FOI processing and in providing helpful guidance to clients and FOI applicants. Further information in this regard is included under the Freedom of Information section of this report.

In January 2008, HREOC released its Summary of Observations following the Inspection of Mainland Immigration Detention Facilities 2007 report. The report noted that, despite improvements in conditions in detention facilities, significant work remained to be done. The department undertook to continue to work with HREOC to further improve detention services in 2008.

In June 2008, the minister asked the Federal Parliamentary Joint Standing Committee on Migration to enquire into immigration detention in Australia as a basis for developing a more humane approach to this difficult public policy issue.

Privacy complaints

In 2007–08, the department received a total of two privacy complaints through the Office of the Privacy Commissioner (OPC), while another four were received directly from clients. There are no comparative figures available for 2006–07.

The department has responded to the two OPC complaints and its responses are under consideration by that office. Three of the four direct client complaints have been finalised while the fourth is awaiting closure.

Freedom of Information

Prior to 2007–08, the department was not meeting its statutory obligations under the FOI Act. The Commonwealth Ombudsman was monitoring the department closely following numerous complaints about delays in FOI processing. The Ombudsman highlighted many causes for the delays and put forward a number of recommendations in his own-motion Department of Immigration and Citizenship: Timeliness of decision making under the Freedom of Information Act 1982 investigation report.

In late 2007, the department invested additional funds to establish a taskforce to address the significant backlog of overdue FOI requests and to make improvements to business processes to increase compliance with statutory timeframes in the FOI Act. The taskforce commenced in January 2008 with a backlog of 3112 overdue FOI requests and a compliance rate with the 30 day statutory timeframe of only 20 per cent.

By 30 June 2008, the backlog had been reduced to only 310 overdue FOI requests and the compliance rate had been increased to over 70 per cent.

This remarkable outcome was achieved by implementing a broad range of initiatives including:

• reducing the number of FOI requests received by improving staff understanding of what is personal information and what can be accessed by clients under the Privacy Act 1988. The release of personal information and documents under the Privacy Act rather than the FOI Act has been a priority for the department
• providing FOI information in all-staff messages from the secretary, an outreach training program, an Information Contact Officer Network, FOI and Privacy eLearning packages, updated Client Enquiry Service scripts and web information to drive cultural change around access to information in the department
• implementing a new service delivery model, which will see the establishment of two FOI centres of excellence in Victoria and New South Wales, with processing being transitioned to the centres from 1 July 2008.

Reports by parliamentary committees

There have been two reports by parliamentary committees relating to the department during 2007–08.

Senate Standing Committee on Legal and Constitutional Affairs—July 2007: Enquiry into the Australian Citizenship Amendment (Citizenship Testing) Bill 2007

In July 2007, the Senate Standing Committee on Legal and Constitutional Affairs released its report on the Australian Citizenship Amendment (Citizenship Testing) Bill 2007 (the Testing Bill), which amended the Australian Citizenship Act 2007 to provide for the testing of prospective applicants for Australian citizenship by conferral. The committee made four recommendations in its report, three of which were agreed to by government.

Two of the three recommendations were implemented upon passage of the Testing Bill in parliament in September 2007. The third recommendation was implemented with the minister‘s announcement on 28 April 2008 of the appointment of an independent committee, tasked with conducting a review of the citizenship test since its implementation on 1 October 2007. The independent committee is chaired by Mr Richard Woolcott AC, former diplomat and Secretary of the Department of Foreign Affairs and Trade. The review committee‘s report is being considered by the government.

Joint Standing Committee on Migration—September 2007: Temporary visas ... permanent benefits. Ensuring the effectiveness, fairness and integrity of the temporary business visa program

The (41^st Parliament) Joint Standing Committee on Migration (JSCM) adopted an enquiry into eligibility requirements and monitoring, enforcement and reporting arrangements for temporary business visas in December 2006. The terms of reference for the enquiry focused on the adequacy of the eligibility requirements for subclass 457 visas (and labour agreements under the program) as well as the effectiveness of compliance arrangements. The JSCM‘s report was tabled in parliament in September 2007.

The JSCM report contained 25 recommendations and addressed issues concerning the Department of Immigration and Citizenship (DIAC), the Department of Health and Ageing, and the Department of Education, Employment and Workplace Relations (DEEWR).

The recommendations are being considered as part of the review of the subclass 457 visa program including:

• the 457 Integrity Review being conducted by industrial relations expert, Ms Barbara Deegan
• the inter-departmental committee established by the government comprising DIAC, DEEWR, the Department of Foreign Affairs and Trade and the Treasury
• the Skilled Migration Consultative Panel including representatives from state governments, industry and unions.

A formal response to the JSCM report will be finalised following the government‘s consideration of all reform options for the subclass 457 program.

Table 93: Handling of ministerial, parliamentary and cabinet business

Type of statistical material	2005–06	2006–07	2007–081
Ministerial correspondence, submissions and briefs
Correspondence	38 049	25 459	27 853
Submissions	3 150	4 989	4 257
Function and meeting briefs	464	464	353
Parliamentary
Possible minister‘s questions	988	862	563
Estimates questions on notice	722	548	192
Parliamentary questions on notice	149	131	52
Cabinet documents
Exposure drafts	90	72	37
Final submissions/memoranda	68	68	50
Minutes	138	108	101

1. Numbers affected by 2007 Federal election and preceding caretaker period.