With increasing media and political attention on the government’s dramatic border security failure over airport arrivals, Attorney-General Christian Porter has been forced to reveal a report savaging its handling of the Administrative Appeals Tribunal (AAT), which has led directly to tens of thousands of illegal immigrants working in Australia.
In the wake of Crikey INQ’s series on the systematic abuse of the onshore humanitarian visa system by the horticulture industry and labour hire firms, and questions from the opposition yesterday about the massive blowout in bridging visa cases before the courts, the government yesterday released a statutory review by former High Court justice Ian Callinan into the government’s 2015 amalgamation of the AAT with the Migration Review Tribunal, the Refugee Review Tribunal and the Social Security Appeal Tribunal, just days ahead of the legislated deadline for tabling. The government has sat on the report for seven months, and no response to its long list of recommendations is in sight.
Both Callinan and current and former members explain in the report why the amalgamation has failed and why tens of thousands of visa cases now clog up the Migration Review Division of the court — and the answer lies as much with the government as with scammers and illegal immigrants. Key problems identified in the review are:
Too many appointees without legal qualifications
In a direct rebuke to a government that has made an art form of stacking the AAT with former politicians and staffers qualified only by their Liberal Party connections, Callinan recommends “[a]ll further appointments, re-appointments or renewals of appointment to the Membership of the AAT should be of lawyers, admitted or qualified for admission to a Supreme Court of a State or Territory or the High Court of Australia, and on the basis of merit”. An anonymous member of the AAT pointed out political “captain’s pick” appointments haven’t reduced the workload of busy divisions.
Public servants dictating decisions
Because so many political appointees lack even a basic understanding of the law, decisions are often being dictated to members by AAT staff. This is backed by a current AAT member who says the Migration Division “is now seen more as an executive, public service type of appointment with influence exerted by the public service”. Callinan is outraged by this. “There is no need for, and it is not appropriate that Registry staff, whether by preparing ‘templates’ for decisions, or giving ‘legal advice’ to Members, participate in making or writing, or assisting in writing, decisions by Members.”
More members are needed to address the backlog
Callinan urges the “further appointments of, preferably, full-time, appropriately legally qualified, Members”. A senior member also warns the Migration Division in Victoria is poorly managed and there is little mentoring or support for new members in that division. Another warns of “bullying and threats adverse to independence”. Callinan also wants members to move around so that those in less busy divisions can help address the backlog in the Migration Division.
Too many contractors
In another rebuke to a major characteristic of the current government, Callinan strongly objects to the use of contractors by the AAT, especially to perform tasks that are “properly the work of Registry staff.”
“The AAT should not engage external consultants to do or assist it to do administration,” Callinan recommended.
The amalgamation has failed because of internal culture
“It soon became apparent to me that the extent and complexity of the work [of the Migration Division] that it was doing were not always appreciated by some of the other Members and some AAT staff: they did not lay out the welcome mat for the new Division. I have to say, regrettably, that some Members of the General Division and some staff have, on occasions, adopted a condescending attitude to the MRD.” At the same time, Callinan notes, “some Members in the MRD may have been rather thin skinned about criticisms that have been made of their decisions”.
The criticisms of the government don’t end there: Callinan attacks the government’s 2015 decision to effectively abolish the Administrative Review Council, suggesting it may have been illegal. But Callinan also takes aim at those deliberately gaming the system for bridging visas. “Almost everyone experienced and knowledgeable in migration affairs told me that there are applicants, not small in number, and some persons who represent them, who ‘game’ the system, well knowing there is an automatic entitlement to a bridging visa.”
To help stymie them, Callinan wants the AAT to be given the power to prevent new material, subsequent to the decision under review, being introduced by applicants trying to endlessly delay decisions. “Consideration should be given to legislation for a new information rule conferring a wide discretion upon the AAT to receive or refuse evidence not before the original decision-maker.”
But as the report makes clear, it was then-attorney-general George Brandis who put in place the circumstances for the current loss of border security. A bungled amalgamation of the AAT and the elevation of the bipartisan practice of political appointments to the Tribunal to what became, in effect, an employment service for failed Coalition MPs and staff, have enabled tens of thousands of scammers and opportunists. And the government has known about it for months without lifting a finger to address it.