“We have a problem with the AAT,” Home Affairs Minister Peter Dutton told 2GB’s Ray Hadley in May 2018. “And there’s no sense pretending otherwise.”
According to Dutton, the Administrative Appeals Tribunal was failing to “uphold community standards”, and didn’t “reflect the views of the Australian people”.
“We are looking at ways in which we can reform the migration aspect of the AAT and I want to make sure that if we cancel the visa of someone who has committed serious criminal offences … that person has their visa cancelled and they’re deported from our country. I’m not going to take a backward step on this,” he told Hadley.
So what exactly are “community standards”? It doesn’t exist in law as a concept. But as a rationale for the government to drastically overhaul and remake the AAT to ensure it delivers different results, it’s very real indeed.
Dutton’s attacks on the tribunal began escalating from 2017. During the 2016-2017 financial year, the AAT reviewed 19,077 of the Department of Home Affairs’ visa decisions, overturning 31 per cent.
2017 was also the year the Coalition excoriated the tribunal after it overturned a ministerial directive to deport Melbourne taxi driver Jagdeep Singh to his native India after being convicted of sex offences. The Herald Sun singled out AAT senior member Miriam Holmes for special treatment. Reporter Keith Moor gained access to internal AAT documents which “revealed” Holmes had asked AAT staff to remove one of her written decisions from the publicly accessible website.
“The documents suggest she did so because her written decision contained an error and other material which she was concerned could harm her reputation,” Moor reported.
It was a red meat kind of story for Australia’s tabloid media. The AAT, said 2GB announcer Ben Fordham, was “fast becoming the rapist’s best friend”.
In late 2018, Keith Moor at the Herald Sun was again given access to internal AAT documents. This time it related to AAT deputy president Jan Redfern, who allowed a Comanchero bikie originally from New Zealand to keep his visa “despite being satisfied the bikie may be a risk to the Australian community”, according to the report.
The newspaper catalogued other instances in which Redfern had overturned ministerial directives to cancel the visas of people convicted of violence or sex crimes: a gang member from New Zealand who had been on a “seven year crime spree”; a Chinese woman convicted of manslaughter; and a Nigerian student who had obtained his visa fraudulently.
The Herald Sun also revealed a “fake refugee” case that resonated strongly: six Iranian asylum seekers had returned to Iran for a holiday, contradicting their argument that they feared the Iranian regime.
In June this year, Law Council of Australia president Arthur Moses SC criticised Dutton for claiming that “when you look at judgments that are made it’s always interesting to go back to have a look at the appointment of the particular Labor government of the day”.
Dutton’s statement was “unacceptable”, said Moses: “It must be recognised and appreciated that these bodies provide an important check upon the unlawful exercise of power. Any suggestion by any member of government that Australian tribunals are not acting with independence — or any unwarranted attempts to influence the exercise or curtail the role of merits review — can be dangerous and damaging to our justice system.”
Populating the AAT with Liberal Party members and government staffers has been “designed to erode the independence of the tribunal and has been done in response to pressure by Dutton and the News Corp media campaign”, wrote barrister and commentator Greg Barns, who has appeared for and advised in a number of AAT cases.
“The issue is one of what is termed apprehended bias,” Barns wrote in Crikey in mid-2017. “It is not that these former staffers and Liberal Party members might be actually biased, the test is whether a ‘fair-minded lay observer’ might reasonably apprehend that the AAT member might not bring an impartial mind to his or task as decision-maker.”
A refugee lawyer who often appears before the AAT told Inq that lawyers can anticipate the outcome of cases in advance “because we can see particular members don’t have the legal background, and have strong affiliations with political parties — and we expect those members to basically toe that party line in light of the pressure of reappointment”.
The lawyer summed it up this way: “It’s potentially life or death decisions for some applicants who cannot return to their countries. And these are non-qualified people who are toeing a party line that is anti-immigrant anti-refugee.”
Have you had any dealings with the AAT? Anything you think our readers might like to hear about? Drop us a line at [email protected].