Contemporary Issues on Cases lodged at the Tribunal
With the number of immigrants set to plummet by perhaps as much as 85%, and the options for onshore applicants drying up, it becomes increasingly clear that the pressure to find solutions for each prospective client will only grow. Letting bad cases go will likely become harder for migration agents over time.
We have recently seen steps taken by the OMARA to reiterate the obligation of migration agents in relation to matters without reasonable prospects at the Administrative Appeals Tribunal. In relation to concerns regarding the Tribunal, it is important to examine a few key matters:
- What would incentivize specious appeals in the first place?
- Is there any cause for concern when looking at the Tribunal’s migration workload?
- To what extent are the specific practices of concern to the OMARA really affecting the Tribunal?
- Would greater scrutiny of agents even serve to appreciably relieve pressure on the Tribunal?
All such questions provide worthwhile insight into matters crucial to our industry and deserve specific attention. We should not seek to simply proselytize on the question of professional ethics, but rather to add value to wider conversation regarding the objectives of the migration scheme and the impediments facing those looking to bring said objectives to fruition.
Utility of the Appeals
For some time now, the proliferation of bridging visas has been a subject of substantial media attention. The Department of Home Affairs estimates that approximately 200,000 bridging visa holders currently reside within the jurisdiction – https://www.homeaffairs.gov.au/foi/files/2019/fa-190801234-released-document.PDF. Whilst it cannot be said what proportion of these bridging visas were issued on the basis of pending matters before the Tribunal, extrapolation from “applications on hand” and the visa grant statistics suggest that perhaps approximately 19% of the bridging visa holders have pending applications for review. What percentage of that 19% involve AAT appeals cannot be ascertained.
Regardless of exact figures, the fact remains that appeals to the Tribunal, irrespective of their merits, automatically provide the applicants with bridging visas in most cases. With most appeals taking in excess of 80 weeks on average until finalisation, the appeal process earns each applicant up to 18 months in Australia all for a payment of $1,787.
Epidemic of Abuse of Process?
Whilst the current automatic bridging visas clearly provide incentives for lodging unmeritorious claims, we do not know to what degree the Tribunal’s appeal process is being in this way. Firstly, we may refer to the number of appeals lodged to the Tribunal, by matters type, for the period from 1 July 2019 to 30 May 2020:
|AAT Caseload – 1 July 2019 to 30 May 2020|
|Child Support and Social Security*||16,318|
*’Migration related’ includes migration, citizenship, refugee and character decision matters
*’Child support and social security’ includes 1st and 2nd Centrelink review, child support and parental leave matters
For the relevant period, almost 58% of all applications lodged to the AAT related to migration-related applications. This figure appears overwhelming, but we must conduct detailed analysis to ascertain the extent of the problem.
Are Migration Appeals Particularly Unmeritorious?
One would expect that – if the high volume of appeals is to be attributed to unmeritorious applications, the rate at which applicants succeed will prove significantly lower than those for other matters.
Using the same data, below is outlined the percentage of appeals which result in a change of the decision under review:
|Matter Type||Success||Matter Type||Success|
|Migration||30%||Social Service/Child Support||22%|
|Refugee||8%||Tax and Commercial||44%|
|Character (Visa-related)||35%||AAT Overall||26%|
But for one glaring exception, the rate of success in migration matters do not, for the most part, differ remarkably in comparison with appeals of other kinds. This suggests that the number of meritless applications may not play a significant part in maintaining the high volume of migration-related appeals, except where matters relate to refugee claims.
The percentage of successful appeals of protection visa appeals would not be surprising to professionals in this industry. When looking at the breakdowns by citizenships, it becomes clear that abuse of the protection visa program exists among nationals of certain countries. The grossly disproportionate number of Malaysian applicants has long been an issue, and one that must be addressed cautiously.
|Migration and Refugee Division Caseload Report – 31 May 2020|
|Citizenship||% Total Appeals||% Success|
Due to the nature of Australia’s international obligations, the matter of fraudulent protection claims is essentially intractable. Nevertheless, it is important to continue to grant such applicants the benefit of the doubt to ensure no refoulement occurs with respect to genuine applicants. We address the matter here simply to give context for the appalling failure rate of ‘self proclaimed’ refugees at the Tribunal. This is indeed a dilemma worthy of further discussion elsewhere.
Specious ENS, TSS and RSMS Reviews
Under the recently issued “Guideline for Representing Clients at the Administrative Appeals Tribunal,” specific regard was given to a particular form of malfeasance in relation to unmeritorious appeals:
“A further example is that the OMARA has received feedback from the Tribunal that some RMAs have been seeking review of subclass 186 and 187 visa refusal decisions where the associated nomination has been refused and there is no review lodged for the nomination. Such review applications have no prospects for success.”
This is a hard-lined stance against the most specious applications put to the Tribunal. In our view, lodging such an appeal is in most cases indefensible and ought to be grounds for disciplinary action against practitioners facilitating such applications.
From 1 July 2019 to 31 May 2020, the number of nomination appeals lodged was 2,455, which was largely outnumbered by 3,175 appeals for visa applications that require said nominations, namely Subclass 482, 186, 187 and 407 visas. Whilst it may be fair to attribute part of this discrepancy to legitimate causes, it is extremely rare in practice that a visa application is refused in the event of nominal approval.
Nevertheless, assuming every visa appeal without an accompanying nomination appeal was fraudulent, the figure could only amount to approximately 2% of the total workload of the Migration and Refugee Division of the Tribunal. Appeals of this sort do not, in of themselves, appear to account for the large number of migration appeals made each year.
A Fraudulent Application is a Fraudulent Application
For the legal practitioners among us, we are well acquainted with the strictures of the Federal Circuit Court, and the declarations in which practitioners must attest to the reasonable prospects of success for our client. Indeed, abuse of process at this level is given its due, with unscrupulousness resulting in awards of costs against applicants and fiscal penalties for practitioners. Much as with the visa application process, one’s very right to practice is endangered by such conduct.
It is curious, therefore, that more attention is not given to baseless appeals made to the Tribunal. Any cursory glance at the AAT bulletin will show quite clearly the degree to which applications are frivolously submitted with virtually no prospect of success. Whilst much of this may be due to the initiative of unrepresented applicants, it cannot be said how many of these applications were lodged with at least tacit support from a registered migration agent. In any event, it simply ought not be the case that AAT appeals be used as a mere $1700 two-year visa without any risk of consequence to practitioners submitting such applications. All agents must be reminded that lodging such applications is clearly in breach of our Code of Conduct, which may potentially lead to revocation of one’s MARA registration.
Will it Matter?
With tens of thousands of temporary residents awaiting their hearing before the Tribunal, only time will be able to reveal what chilling effects the recent OMARA directives will have on the Tribunal’s backlog. We are certain that the current trends would continue despite the recent announcement as we know that many of the habitual offenders already operate unlawfully and outside the regulatory scheme.
That said, at the very least, the data on Tribunal outcomes are not as damning as one may expect. The dominance of migration matters at the AAT is perhaps more reflective of the volume of decisions made under the Migration Act each day, as well as the critical importance these outcomes have to those they affect.
Whilst the overall impact on the migration system may prove minimal, it remains incumbent on the OMARA to make clear the standards to which agents are held, and to ensure that migration agents assess matters from critical viewpoints whilst considering the potential adverse effects that may be caused on his or her professional career in the event of failure.
We welcome the recent direction, and sincerely hope it prompts positive changes in our industry.