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Legal and Constitutional Affairs Legislation Committee
24/05/2018
Estimates
ATTORNEY-GENERAL'S PORTFOLIO
Administrative Appeals Tribunal

Administrative Appeals Tribunal

[16.20]

CHAIR: We now move on to the Administrative Appeals Tribunal. Welcome to Ms Leathem, Ms Haddad and Ms Fredman. Do any of you want to make an opening statement?

Ms Leathem : Thank you, Chair. I'd like to make a short opening statement regarding the role and function of the Administrative Appeals Tribunal, AAT. I will also address the tribunal's role in reviewing decisions relating to the National Disability Insurance Scheme and visa cancellations and refusals based on character grounds.

The public should have confidence in executive decision-making. The tribunal was established more than four decades ago to provide independent merits review of government decisions. In the 2016-17 financial year, the tribunal received over 50,000 applications for review of decisions made under more than 400 pieces of legislation. The tribunal has the power to affirm or agree with a decision that is under review, vary the decision, set it aside and substitute a new decision, or remit a decision for reconsideration by the original decision-maker. The AAT must make the legally correct decision or, where there can be more than one correct decision, the preferable decision based on the evidence before it. Tribunal members are required to consider additional information that may not have been before the original decision-maker, evidence that is submitted is tested in hearings, and members must provide reasons for their decision.

The tribunal reviews decisions that have a direct impact on the lives of individuals. These include the provision of income support to pensioners and veterans, supports included in the NDIS plan, a tax assessment, or the opportunity to have a partner or a family member visit, or reside, in Australia. Other decisions that are reviewed by the AAT can have an impact on a wider group, including potentially thousands or even millions of Australians, such as a decision relating to the approval of a medication under the Therapeutic Goods Act, or a decision to disqualify an individual from offering financial services under the Corporations Act. The nature of the role of a court or tribunal means there will invariably be questions about particular decisions. In the case of the AAT, all decisions can be appealed to the Federal Circuit Court or Federal Court, and can be overturned if they're affected by legal error.

The AAT is aware of the ongoing interest in our role, reviewing decisions made by the National Disability Insurance Agency. As the rollout of the scheme progresses, the tribunal is receiving an increasing number of applications. In the 2015-16 financial year, there were 33 cases finalised. This figure increased to 89 in the 2016-17 year, and this financial year to 31 March 2018 we finalised 266 cases. We expect this upward trend will continue over time. As a relatively new jurisdiction, the AAT is acutely aware of its need to ensure that applicants experience an accessible and efficient review process.

I now come to the final matter I wish to address, the tribunal's specific role to review decisions made by delegates in the Department of Home Affairs to refuse or cancel a visa on character grounds. The tribunal welcomes the recently commenced inquiry by the Joint Standing Committee on Migration into review processes associated with visa cancellations made on criminal grounds. The AAT has provided a submission to the inquiry, which can be tabled here if the committee wishes. Like other courts and tribunals, the AAT is occasionally the subject of media reports about our operational processes, as well as individual cases. In the case of the latter the tribunal's published decisions with written reasons stand on their own merits. The AAT is one of the highest-volume publishers of decisions of all courts and tribunals in Australia.

The review of decisions to refuse or cancel a visa on character grounds is a small component of the broad range of visa decisions that we review in the AAT and an even smaller component of our overall case load. To put these matters in context, in the 2016-17 year the tribunal finalised 42,224 reviews, of which 168 decisions, or less than 0.4 per cent, related to visa cancellations or refusals on character grounds. In considering and deciding these matters the tribunal members are bound to apply ministerial direction No. 65, which sets out three primary considerations that must be taken into account. These include protection of the Australian community, the best interests of minor children in Australia and expectations of the Australian community. The direction also sets out five other considerations that must be taken into account, including international non-refoulement obligations; the strength, nature and duration of ties; the impact on Australian business interests; impact on victims; and the extent of any impediments if removed. These decisions are routinely published and contain an explanation of the member's evaluation of each of these considerations.

The AAT is dedicated to providing a review process that's accessible, fair, just, economical, informal and quick. Thank you, and I invite any questions from the committee.

CHAIR: Thank you very much. In relation to what you just said, I tried to get some copies of decisions, I think at last estimates, and I thought we were told that they're not all available. Could you just clarify—

Ms Leathem : Certainly.

CHAIR: Are decisions of AAT members publicly available, so that I can see the reasoning behind what seem to be some quite outrageous decisions of the AAT?

Ms Leathem : All of what are called the section 501 or section 501CA decisions, which represent most of the decisions where there is media interest, are routinely published and are available free of charge through the AustLII website.

CHAIR: So, they're all there?

Ms Leathem : Now, we do have a much broader range of decisions, and not 100 per cent of those are published. But we did review—

CHAIR: No, I'm particularly talking about the overturning of decisions by the delegate of the Minister for Home Affairs, or whatever he was called at the time. Those decisions—every decision is in writing and publicly available to me?

Ms Leathem : Unless there has been—and let me just clarify: they're not all decisions relating to migration and refugee decisions but all are relating to what they call cancellations of visas.

CHAIR: So, every cancellation decision is available?

Ms Leathem : Correct. We revised our decision publication policy, so they are now all available. There is an exception if there's been an explicit order made under section 35 of the act, whereby there can be a confidentiality order placed.

CHAIR: Is that order then explained publicly as to why the decision to—

Ms Leathem : The member would actually need to make a decision, and generally speaking—I might just defer to my colleague Mr Matthies, who is the expert on the decision publication policy.

CHAIR: I'd be interested to know, as Mr Matthies joins us at the table, when this policy changed. As I recall, at a previous estimates it was a bit hard to get them.

Mr Matthies : If an order is made under section 35 that a decision not be published, or under section 378 or 44 of the Migration Act in respect of some migration and refugee division decisions, that is not routinely made publicly available. But we can respond if anyone has a question about whether there is a confidentiality order in a particular matter.

CHAIR: So, can a member of the public—that is, me—ask why the confidentiality order has been made?

Mr Matthies : The tribunal's reasons for making a confidentiality order, if they were made public, would be made publicly available through the decision publication process—so, not ordinarily. Written reasons wouldn't necessarily be given for all confidentiality orders that are made.

CHAIR: So, a member can say, 'Here's my decision, but I order it to be confidential,' and no reason is given as to why it's confidential?

Mr Matthies : That's correct.

CHAIR: That seems to be something that needs to be addressed—not to look at the decision that is confidential, but the reason it is confidential. Anyhow, other senators may have more questions on that later on. Ms Leathem, I wanted to refer to newspaper articles about the AAT retreat at the Sunshine Coast, which is, according to newspaper reports, said to be $500,000. Could you tell us about what it is and who's going?

Ms Leathem : It's referring to our national conference. You'll appreciate that the tribunal went through a very large amalgamation in July 2015. We're now a large group of people, members and staff, who are distributed around Australia. It's an important part of an efficient, high-performing organisation that you offer professional development and training to your decision-makers and to your key senior staff. The national conference is an opportunity to bring together those decision-makers to offer a skills-based training program. It's based on the competency framework, which, of course, is modelled on the tribunal's excellence framework.

We do have a copy of the program available, which we're happy to table. You will see that it has some very eminent speakers, including the Attorney-General who will be addressing the group. We also have representatives from the Federal Court, the Federal Circuit Court and a range of other subject matter experts.

CHAIR: I assume that most of your members are based in Melbourne and Sydney. Why the Sunshine Coast? As a Queensland Senator, I'm delighted that the wonderful qualities of the Sunshine Coast are recognised in the surf, the sun, the sand and the restaurants. It's a wonderful area, but I'm wondering why the taxpayers are contributing to a conference there. It's a long way from home. What I read in the papers is that it's at the Twin Waters Resort, which is a wonderful resort—I have been there for a family wedding. It's a bit hard to fathom why that sort of destination would be appropriate for a group of people who are mainly based in Sydney and Melbourne.

Ms Leathem : We did go through a process to select a value-for-money location. In short, the accommodation costs in Sydney and Melbourne effectively make it less cost-effective—

CHAIR: I'm sure in Sydney and Melbourne. What about Wollongong, Batemans Bay or Canberra—

Ms Leathem : I might invite Jacqueline Fredman, my executive director, to explain the process.

Ms Fredman : We did undergo at tender process in accordance with the Commonwealth Procurement Rules, and the venue was selected after having undergone that process. Some of the criteria involved in selecting the provider by the tender evaluation committee, and as was publicised on AusTender, included the capacity to have the conference facilities—having been to this venue, you will appreciate that it has significant conference facilities—co-located with accommodation facilities and for a number of delegates. At that stage we were looking at upward of 340 delegates. Surprisingly, many metro locations—the ones that responded to the tender—were not able to meet that particular criteria.

CHAIR: On notice, could we get the destination of the other tenderers?

Ms Fredman : I can certainly take that on notice. And, if it assists, we can provide on notice the criteria that were applied in assessing those that responded to the tender?

CHAIR: I'm sure every Australian can make their own assessment of the various places that we all know, but I am just interested in which were the other tenderers. If the criteria means why this wonderful resort in my home state was selected at a cost that would be useful for the committee.

Ms Fredman : I'm happy to provide that to the committee on notice.

CHAIR: The newspaper says there are 224 members plus 63 senior and specialist support staff attending—this is at 4 May—is there an update on that figure that you can tell us about?

Ms Fredman : Yes. Unfortunately, a small number of members have dropped out in recent times. There are 218 members attending plus 65 senior and specialist staff, so the delegate number in total is 283.

CHAIR: Is the newspaper report of $500,000 accurate?

Ms Fredman : The rough estimate, at this stage, is around the $600,000 mark for those 283 delegates.

CHAIR: That involves airfares from Melbourne to Maroochydore—

Ms Fredman : Yes.

CHAIR: Sydney to Maroochydore, Brisbane—and car travel, I guess—Perth, Adelaide and Darwin.

Ms Fredman : Yes. It is airfares, on-ground transport, coaches to get delegates to the venue itself, to and from—

CHAIR: How long is the conference for?

Ms Fredman : It's for 2½ days. It commences on Monday and winds up in the middle of the day on Wednesday.

CHAIR: I certainly hope everyone enjoys the Sunshine Coast! It's a wonderful destination that's been selected. You did make an offer to table the program. Do you have that with you now?

Ms Leathem : I believe we do have that available—we can make that available.

Ms Fredman : Chair, you will see when the program is tabled that it sets out the topics that are being presented to delegates. I'd just like to add that those topics align with our professional development framework, so they cover a range of topics relating directly to tribunal craft. But the program speaks for itself.

CHAIR: It would be useful to get that.

Senator PRATT: How many AAT members are currently appointed?

Ms Leathem : As of today's date, I believe it's 300 members.

Senator PRATT: How many were appointed after 18 September 2013?

Ms Leathem : I wouldn't have that information, unfortunately, because that predates the amalgamation. We've only been amalgamated since July 2015.

Senator PRATT: All right—and how many after 19 July. Why is the conference you have important?

Ms Leathem : As Ms Fredman has said, there are a range of skills based sessions, which are directly related to both the skills and competencies that tribunal members and senior decision-makers may need to exercise, as well as some sessions that are specifically subject matter based. I should note it is also an opportunity for us to put our leadership groups together. You'll see there's a meeting of the member-leadership group. We have deputy presidents and a president who are based in different locations. We also have senior staff based in different locations, including district registrars. We use the conference as an opportunity to also convene meetings to discuss strategic challenges and priorities.

Senator PRATT: Now that I have a review of it, I can see how detailed it is, in terms of people's work outputs and responsibilities. I note that the minister, the Attorney-General, is attending. Good luck with that conference. It's not very long away now.

Ms Leathem : That's right.

CHAIR: Thank you for that. The registrar did mention the Attorney attending, previously. Are you happy to table this AAT national conference program, Monday, 28 May? As everyone's happy, that's so done. Senator Pratt?

Senator PRATT: I'm happy to give Senator Siewert the—

CHAIR: No, I just interrupted you.

Senator PRATT: I'm just trying to work out whether I will cull my questions in the interest of time and work out what I do want to ask. It'd probably be expeditious to give someone else the call while I do that.

Senator HUME: On this issue of the conference, what is the budget allocation to the Administrative Appeals Tribunal this year, next year and over the forward estimates? I should have that in front of me, forgive me.

Ms Leathem : If you're looking at the revised budget for 2017-18, we're looking at $152 million. That's the revised 2017-18 figure: $152 million. The budget figure for 2018-19 is $160.3 million, for 2019-20 it is $157 million and for 2020-21 it is $138.8 million.

Senator HUME: The cost of the conference as a percentage of your budget for this year is just under—if I am reading this right—about half a per cent.

Ms Leathem : I would have to do that calculation.

Senator HUME: Yes, so would I. I've had too many coffees to get my figures right on the calculator.

CHAIR: What was the total figure?

Senator HUME: It's $152 million. That's the total budget allocation, and it was a $600,000 conference. Did you originally plan the conference earlier in the year, or did you get to the end of the year and go, 'Actually, we've got all this money left over, so we can have a conference now'?

Ms Leathem : It has been a long time in the planning. We had a new president appointed mid last year, and one of the first discussions with the senior leadership group was about whether or not it would be a good opportunity to have a national conference during this financial year.

Senator HUME: What do you do at night-time?

Ms Leathem : There are some meetings that are being held after the formal program finishes. Of course, there is also dinner that's offered to the delegates as well, because all of the conference is happening on site.

Senator HUME: Have you invited the minister to the dinners?

Ms Leathem : We have. I understand he's got other engagements.

Senator HUME: I read in the paper that there is a journalist, an author, who was accepted and listed on the AAT's national conference program as the speaker for the Tuesday dinner, but I can't see that in the—

Ms Leathem : Yes, that was an error on our part. There had initially been some thought given to having an after-dinner speaker. There was simply an approach made to Benjamin Law's booking agent. He'd been suggested because he had spoken previously at a Council of Australasian Tribunals conference. All that was done was to sound out whether he was available. It was prematurely put on an early version of the conference program, but he was never booked to speak and he won't be.

Senator HUME: So he is not speaking?

Ms Leathem : He's not.

Senator HUME: Obviously it would be quite offensive, I would imagine, for ministers to be at the same dinner as somebody who has said such awful things about—

Ms Leathem : We're not engaging Mr Law to speak at the conference.

Senator HUME: I'm very pleased to hear it. Have you engaged anybody to speak at the conference?

Ms Leathem : The program has the speakers there, but we're not having a dinner speaker.

Senator HUME: No—at the dinner?

Ms Leathem : No. There are no dinner speakers.

Senator HUME: Who was the booking agent that you used?

Ms Leathem : I'd have to take that on notice. I don't have that here.

Senator HUME: Can I go back to something else. The Administrative Appeals Tribunal has apparently reappointed some tribunal members to work in a different division, or to work in part of the Immigration Assessment Authority. Is that correct?

Ms Leathem : I will invite my colleague Ms Sobet Haddad, who is the senior reviewer at the IAA, to explain the difference between tribunal members and reviewers in the IAA and the process.

Senator HUME: Just before you get into it, how many reviewers are there?

Ms Haddad : There are currently 37 reviewers.

Senator HUME: Just explain the role of a reviewer.

Ms Haddad : A reviewer undertakes a merits review of a decision to refuse a protection visa to fast-track an applicant.

Senator HUME: What's a merits reviewer paid?

Ms Haddad : They are payed at the executive level 2 salary. The base salary starts at $115,900-odd.

Senator HUME: About $116,000.

CHAIR: What does it finish at if it starts at $116,000?

Ms Haddad : I don't have the full band with me. I believe it's around $130,000.

Senator HUME: Are they contracted? Do they have a term or are they permanent staff?

Ms Haddad : No; they are all non-ongoing staff.

Senator HUME: What does that mean?

Ms Haddad : Under the Public Service Act, you are employed as a non-ongoing staff member or an ongoing staff member. So they're on a fixed term or for a fixed project.

Senator HUME: So they are on fixed terms?

Ms Haddad : That's correct.

Senator HUME: Is it the same term for each reviewer or does it depend on the person?

Ms Haddad : It does change. For the most part, people are engaged on an 18-month term initially.

Senator HUME: For 18 months?

Ms Haddad : Yes.

Senator HUME: Do they have their term renewed? Once they've done their 18 months, do they then get reappointed?

Ms Haddad : Under the Public Service Commission's directions, we can engage reviewers, generally up to a period of 18 months initially. That term can be extended for up to three years.

Senator HUME: How many employees of the Immigration Assessment Authority were formerly tribunal members?

Ms Haddad : I understand eight of our current employees. That's just federal tribunals.

Senator HUME: Are there any more that the AAT intend to employ? Do you intend to employ anymore tribunal members? Are there any more in the pipeline in the Immigration Assessment Authority?

Ms Haddad : We're currently undergoing a merit selection exercise for additional reviewers.

Senator HUME: So the merit selection exercise does not preclude people who have not had their terms renewed as tribunal members?

Ms Haddad : That's correct. We're prohibited from discriminating on the basis of past employment.

Senator HUME: Even if potentially one of the reasons that they are no longer tribunal members is that they were deemed to be not particularly good at the job?

Ms Haddad : It's a merit selection process, which means that we conduct a process where we assess each individual against set selection criteria.

Senator HUME: How long has that been going on for? Have you always reappointed tribunal members to the Immigration Assessment Authority? Is that a common practice or is this something that has happened recently?

Ms Haddad : We've been established since 2015. In that time, we've conducted a number of merit selection exercises to recruit reviewers.

Senator HUME: How many of them have been former tribunal members?

Ms Haddad : In total?

Senator HUME: When did you start recruiting former tribunal members?

Ms Haddad : Our first recruitment process was, I believe, in April 2015. It was before I came on board. Under public sector rules at that time, recruitment was closed to people outside the Public Service. So our first recruitment round was only able to take in public servants. Subsequent recruitment rounds have been open to the Australian public, to eligible Australians.

Senator HUME: Do you get lots of applications?

Ms Haddad : A reasonable number, yes—several hundred usually.

Senator HUME: And of several hundred brand-new applications, the only people who seem to be qualified are former tribunal members.

Ms Haddad : We employ a range of people.

Senator HUME: From what sorts of backgrounds?

Ms Haddad : Our reviewers would typically come from other Commonwealth or state agencies, private legal practices and migration practices

Senator HUME: When you appoint a former tribunal member as part of the Immigration Assessment Authority, do you review the decisions that they made as a tribunal member?

Ms Haddad : Sorry; I don't understand the question.

Senator HUME: You said you do it on a merits based process. Obviously some tribunal decisions are more contentious than others. Who makes that assessment as to whether they were good at their job? Why are they reapplying back again? I'm quite interested in what it is about them that makes them so qualified.

Ms Haddad : I can't answer why they are reapplying. We have a set of criteria, half a dozen criteria, and we assess each person who applies against that criteria. The most suitable are interviewed. Checks are made against their referees. We ask for a sample of written work.

Senator HUME: So one in five Immigration Assessment Authority reviewers is a former AAT tribunal member? That just sounds like a sort of public servant merry-go-round. To have somebody leave as a tribunal member and then be reappointed on more than $100,000 a year by the same division doesn't seem to meet public expectations.

Ms Haddad : It is a completely separate process. The appointment of members of the tribunal is a matter for government and whether or not they decide to renew a term of appointment is again a matter for government. We have to engage in a separate merits selection process under the Public Service Act. So, in effect, different provisions and different rules apply and, in effect, they are different roles that those people are doing.

Senator HUME: Where does the buck stop with respect to those appointments to the Immigration Assessment Authority? Who makes that final decision as to who is being selected?

Ms Leathem : As the agency head, I'm ultimately the delegate—

Senator HUME: You're the responsible person?

Ms Leathem : so I sign off on that. I satisfy myself that the appropriate rules—

Senator HUME: You review each one of those selections?

Ms Leathem : As is always the case in a merit selection process in the Public Service Act, there's a selection advisory committee that is convened. They engage and provide a report. They work through all of the criteria. They do an evaluative assessment of each of the candidates and they will make recommendations about the people who are suitable for those positions.

Senator HUME: I have a final question. When you see that an applicant has been a former tribunal member, does it not set off a red flag for you?

CHAIR: And not been reappointed.

Senator HUME: And not been reappointed. Doesn't it set off a red flag?

Ms Leathem : What I would be looking at is whether or not the person is qualified for the role, whether or not their skills, expertise and referee reports commend them for the position, and whether they look like they are appropriate to the role. I can't take into account considerations that aren't part of the selection process.

Senator HUME: There are eight there now. One in five of the Immigration Assessment Authority reviewers are former tribunal members, and there is no more that you are aware of in the pipeline who are coming in? If I ask you at the next estimates how many new former tribunal members you have appointed, there isn't somebody that's—

Ms Haddad : That would depend on the outcome of the current selection exercise.

Senator HUME: And when are we doing that?

Ms Haddad : We expect to have it completed by the start of the new financial year.

Senator HUME: So, at the next estimates when we come back, you can tell me if there are any more former tribunal members, who did not have their appointments renewed, who are now working for the Immigration Assessment Authority?

Ms Haddad : Yes.

Senator HUME: Thank you, Chair.

CHAIR: I have a question for you to take on notice. Are any of those eight notable for controversial decisions in their times as members?

Ms Haddad : I don't know, Senator. That's not something we look at.

CHAIR: Certainly, that's something you would be aware of? You're all in the one group.

Ms Leathem : The only thing I could say that may provide some insight is that those decisions that you've referred to previously—section 501 and 501CA—are general division, and as I understand it, none of the former members who are in the IAA have every been assigned to the general division.

CHAIR: So you'd be fairly confident to say none of them have been involved in what are generally seen as controversial decisions?

Ms Leathem : I couldn't make that comment. I can just say they're not assigned to do the work in those areas where there has been some controversy.

CHAIR: When you were giving details to Senator Hume of the 40 reviewers—don't name them—but can you just identify their backgrounds? You said some were solicitors, some were agents, some were former employees of other agents. On notice, if you could just give us a list of one to 40—and, you know, 'former solicitor' or 'former New South Wales government employee'?

Ms Haddad : Yes. They will of course have a variety of past employment.

CHAIR: Well, 'former solicitor and public servant'—if it's relatively easy to get. Senator Siewert.

Senator SIEWERT: Thank you for the comprehensive answers that you provided on notice to the questions I asked last time. I have some follow-up questions. Firstly, that data was provided up until, I think, 28 February. I want to ask a question about getting the data for the end of the financial year.

Ms Leathem : This financial year?

Senator SIEWERT: This financial year. That's essentially what I want. But it is a bit cheeky to ask in advance. So is it possible to provide it up until now—or, by the time you get to answer it, will you have that data?

Ms Leathem : If we take that on notice, we can provide you with the most comprehensive up-to-date data.

Senator SIEWERT: That would be fantastic.

Ms Leathem : In the same format?

Senator SIEWERT: Where I'm going with that is—and I want to come to more detailed questions, when I find the mark where I put it in my file. You provided some very useful data in terms of what decisions were made under the review for DSP. I'm wondering if it would be possible to do that for other payment types. You provided, in answer to one of my questions, a list of the first reviews and second reviews against payment type. There are a number of payments that stand out there in terms of large numbers. For the DSP—and I'll come back to some more detailed questions on that—up until February, there were 2,092 first reviews. That's the highest number out of all the payment types. The next highest payment types are the family tax benefit, Newstart and the age pension. I'm not asking you for all of the payment types on the list, but can provide that same level of detail for each of those payment types?

Ms Leathem : I think we can.

Mr Matthies : Senator, if I understand you correctly, are you referring to the response to the question that you asked which talked about what we'd recorded as the primary issue under review, as recorded by us in relation to the disability support pension?

Senator SIEWERT: Yes.

Mr Matthies : So, you're interested, then, in the same information for the largest of the other payment types?

Senator SIEWERT: Yes. In terms of question AE18-007, which has the table 'Type of decision and primary issue under review'—I'd asked for the previous years, and you made the comment that processes change, so you've given me 2014-15, 2015-16, 2016-17—and 'Cancellation of payment', 'Debt', and so on, which were the reasons for the appeal. Are you able to do that again for the disability support pension, so I have the most up-to-date figures, but also for the family tax benefit, Newstart and the aged pension?

Mr Matthies : Yes.

Senator SIEWERT: Thank you. That would be very much appreciated. In terms of the table that just provides the first review and the second review by payment type, could I have that updated with the latest figures?

Ms Leathem : Yes.

Senator SIEWERT: I wanted to go to the detail that you've provided on the DSP. In terms of the reason for the appeal and the refusal of claim, looking at the figures, 'Qualification—medical and capacity to work requirements' is confirmed as by far the highest of the reasons for refusal of claim, which to me seems to substantiate the concerns that were being raised by national welfare rights in the report that we were talking about during last estimates—that it seems the highest area of claim is the medical and capacity-to-work requirements and dispute over that issue.

Mr Matthies : The response there records that, for disability support pension decisions that were set aside or varied on first review, 'Qualification—medical and capacity to work requirements' was recorded as the primary issue under review in those matters.

Senator SIEWERT: Yes.

Mr Matthies : Beyond it being recorded as the primary issue under review, that's really as far as we can take it. They're also the central qualification requirements for the payment.

Senator SIEWERT: Yes. But it does seem to have gone up consistently from 2014-15 to 2015-16 and 2016-17. It's gone up from 548 to 611 and then to 811 over that period of time.

Mr Matthies : That's as the number of decisions that have been set aside has also increased, yes.

Senator SIEWERT: Yes. Do you have the most up-to-date figure just for the DSP with you?

Mr Matthies : So, for—?

Senator SIEWERT: The number of claims and the number of those that have been set aside—just the first review will do. Actually, the DSP is also by far the highest in terms of the second review as well, in terms of appeals.

Mr Matthies : Correct.

Senator SIEWERT: Do you have those latest figures?

Mr Matthies : For the financial year to date—1 July 2017 to 31 March—we've finalised 3,076 first review applications relating to the disability support pension. Of those, 556 were decisions to vary or set aside the reviewable decision.

Senator SIEWERT: I'll compare that to the list that you've given me. In terms of the family tax benefit, that's a pretty high appeal rate. Before we get the figures—I'll obviously look at the figures once you send them to me—can you tell me now what the main reasons for those appeals are?

Mr Matthies : I don't have that information to hand. We'll have to provide that on notice.

Senator SIEWERT: Okay. Thank you. I thought I'd try my luck! I want to get an understanding of what the issues are, because that's the next highest level of payment, which I must admit I wasn't expecting; I thought some of the other payments would be the next highest level. That's all the questions I have. Thanks.

CHAIR: Thanks, Senator Siewert. I'm using newspaper reports—which I appreciate are not always precisely accurate—but these reports do bring the AAT into substantial disrepute. The department of immigration had cancelled the visas of a number of people, but the decisions were overturned by the AAT. When I asked for the reasons at the last estimates, I was told the reasons weren't available. Apparently now they are. For the public—and for me and the committee—could you tell me about the case of a killer from Iraq, who had several knives with him to confront his brother-in-law following an argument. The judge who jailed him for 18 years over murder said that the Iraqi had used the knives to repeatedly slash at his brother-in-law before stabbing him twice, with one of the stab wounds penetrating his brother-in-law's heart. Can you recall—it's a pretty obvious case, if the description is accurate—what reason the AAT would possibly have had to overturn the immigration department's assessment that this guy wasn't entitled to a visa in Australia?

Ms Leathem : It wouldn't be appropriate for me to go into the particulars of each decision. They're published reasons. The member goes into great detail about the weighing up of the information that's presented—the evidence that is put before them. They will, in their statement of reasons, explain why they may have come to the conclusion that they've come to.

I tried to set out in the opening statement that they're of course bound by the migration legislation but in particular by ministerial direction No. 65, which sets out the mandatory considerations. So they are weighing up all of those different factors and the evidence that is presented to them, which may be substantially different from the evidence that was before the original decision-maker. And the process is quite different, because there's a hearing conducted, procedural fairness must be observed, and, of course, the evidence must be tested and written reasons provided.

CHAIR: But you'd understand why Australians who read about a Scottish hitman who was jailed for 17 years after being convicted of murdering a Melbourne man, by shooting him in the head with a sawn-off rifle, because the murdered man's wife had paid him $2,000 to do so would think that, under the Migration Act or any act, there wouldn't be any reason for the AAT member to overturn the considered decision of the immigration department delegate.

Ms Leatham : That's exactly what the statement of reasons explains.

CHAIR: In those two cases—they should be easier for you to find than me—could you perhaps get me the reasons—

Ms Leatham : We're very happy to provide those.

CHAIR: and table them.

Ms Leatham : Absolutely.

CHAIR: While you're at it, could you also get the one—

Ms Leatham : Sorry; do you have any details about that particular case?

CHAIR: No, but I—

Ms Leatham : Or the article perhaps, and then we could find the detail.

CHAIR: I can give you the article, which I've marked. There are a lot, but these jump out at me:

A DRUG-DEALING FOREIGN STUDENT who was given a protection visa on the grounds that his homosexuality would result in him being persecuted if he went back to his own country as it banned gay relationships—yet he voluntarily returned to his homeland for a holiday to visit his Muslim family.

That one—

Senator PRATT: He may not have committed any homosexual acts while on holiday.

CHAIR: Okay. Fair comment. I'd be interested in seeing the reason. Here is another:

A SCOTTISH CAREER CRIMINAL with 62 convictions, including for rape, robbery with violence, theft, resisting police, assaulting his partner and breaches of court orders. A delegate for the Immigration Minister argued—

at the AAT hearing—

that the man's serious offending—

over a number of years—

meant "his continued presence in Australia would entail a significant risk to the community"

Despite that, the AAT let the recidivist Scot stay in Australia. Can you get me the reasons for that?

Ms Leatham : I believe we can provide those statements of reasons.

CHAIR: There are a lot of them reported in the paper. As a politician, I know papers are not always accurate, but here's another one that jumps out at me:

A PEDOPHILE FROM NEW ZEALAND who was convicted of 18 child pornography offences relating to seven children on 15 separate occasions. He took many photographs of the children while they were in his care.

The court was told that he made the children pose, and yet the decision by officials to take his visa away was overturned by the AAT.

I'm asking for these to be tabled so that if there are reasons why the AAT made those decisions then we can see them, but, on the basis of this information, it brings the AAT into substantial disrepute.

Senator PRATT: A point of order, Chair: in the interests of the separation of the courts and the parliament, I don't think it's appropriate to ask the AAT about individual cases. Those published reasons are published, and the officers before us, as they've said many times before, are not those making the decisions. As has been outlined, they make very clear statements about written reasons standing on their own merits.

CHAIR: I don't think the AAT is a judicial organisation—that's correct, isn't it? Mr Moraitis might be able to help me with that. Is the AAT said to be a judicial organisation?

Mr Moraitis : It's a tribunal rather than a judicial body.

CHAIR: So your point of order is irrelevant, Senator Pratt. But in any case—

Senator PATRICK: There's a decision before the New South Wales Supreme Court that actually contests that.

Mr Moraitis : Perhaps. I've heard of many cases like that. That's my understanding of matters—

Senator PATRICK: Sure. There seems to be controversy—

Mr Moraitis : and the Commonwealth has a view about that.

CHAIR: Anyhow, the officers have agreed to table those decisions. If you like, I'll hand you these newspaper articles. I have highlighted the one I'm particularly interested in. If there is a reason, I think it's important for it to be out there. If these are wrongly said, that needs to be exposed, because on the basis of these things the AAT is—

Ms Leathem : There will be comprehensive reasons going into that. But of course, if they are affected, there is an appeal right to the Federal Court.

Senator PRATT: Chair, if I may clarify, as the registrar made clear in her opening statement, all decisions can be appealed to the Federal Circuit Court or Federal Court and can be overturned if they are found to be affected by legal error. So if there is an error in any of those judgements, frankly it's their job to uphold the law and it's our job to make the laws that they uphold.

CHAIR: I think there have been some changes, but anyhow, thanks for your intervention. Will the judgements, when you table them, indicate who the member was?

Ms Leathem : In most instances, I believe they will record the member.

CHAIR: If any of those members are identified as one of the eight that have been re-employed as a reviewer, could you indicate that as well?

Ms Leathem : Yes.

CHAIR: Alright. I think I might leave that there.

Senator PATRICK: Something about the last conversation about appeals to the Federal Court. I seem to recall in annual reports that you tally up if there have been decisions that have been appealed and how the AAT might benefit from decisions that have been overturned. Is that still the case? I know they did it with the SSAT?

Ms Leathem : As part of our annual report and portfolio budget statements we have a target in relation to appeal rates. At the moment the total of decisions that are capable of being appealed last financial year, I believe, it was 3.4 per cent of decisions that were changed by the superior court. Is that correct, Mr Matthies?

Senator PATRICK: How many were challenged and how many were successful?

Ms Leathem : It was 3.4 per cent. Sorry, that was in the first three quarters of this financial year.

Senator PATRICK: The percentage appealed?

Ms Leathem : I'll have to see if we have that on hand.

Mr Matthies : Are you are interested in the 2016-17 figures or the current financial year?

Senator PATRICK: I was trying to get a feel for whether the Attorney or minister has been appealing any decisions of the AAT and how the court has been finding for or against the AAT's decisions, whether they have set it aside—or do they order that a decision be returned back to the AAT to be determined?

Ms Leathem : To be determined according to law—that's the usual thing if it is remitted.

Senator PATRICK: I know you were in the back of the room when I was talking to the last witness about Qantas and Virgin, so I don't need to do the prelim.

Ms Leathem : I did hear that, yes.

Senator PATRICK: The AAT spends $382,000—this is 2016-17 numbers—on Qantas and $130,000 on Virgin. Noting the cheapest available fare policy, are you in a position to explain why the AAT has such a disparity between Qantas and Virgin?

Ms Leathem : I'm afraid I couldn't explain that here today, but we're certainly happy to look at our statistical information and see if there is some explanation.

Senator PATRICK: It might be helpful to note that there is a lowest practical fare booking code in the finance department's policy. I'll ask you to take this on notice, noting that I imagine there's a number of judicial—how many judicial officers do you have in the AAT?

Ms Leathem : We have a number of judicial officers. We only have one, if you like, full-time.

Senator PATRICK: President, yes.

Ms Leathem : President judge. But we do have 17 judicial members. They are mainly occupied in their main jurisdiction, so they only do work for time to time for the AAT. They will mostly sit with the court.

Senator PATRICK: The judicial officer operates in a particular Federal Court jurisdiction and comes across when—

Ms Leathem : To sit on an AAT matter from time to time.

Senator PATRICK: I think there are certain matters that require a presidential member?

Ms Leathem : That's right. There are particular matters where it's sometimes regarded as helpful to have a judicial member involved, particularly complex matters, for example. So from time to time we call upon our judicial members.

Senator PATRICK: The president makes those decisions?

Ms Leathem : Constitutional matters, yes.

Senator PATRICK: Only dealing with FTE, perhaps if you could find out how many of your members have membership of the chairman's lounge and/or the Virgin The Club. There's a second question, for those members that have only one of those memberships, de-identified could you present their travel contribution between Qantas and Virgin?

Ms Leathem : I don't believe we would have information about whether they are members but we can certainly take it on notice.

Senator PATRICK: I imagine you could inquire into that. I'm only interested in the event that they have that membership as a result of their official position, not if they have it because a spouse has something.

Ms Leathem : Yes.

Senator PATRICK: Thank you very much.

CHAIR: I'm passing to Senator Molan but before I do that, I only ask this of your department to bring it into your jurisdiction. As I understand it, decisions made by a delegate of the Minister for Home Affairs is challengeable in the AAT, but should the Minister himself make the decision that is not then an administrative decision that is—

Mr Moraitis : My understanding is it's the same, but I'd have to get—

Ms Leathem : No. I can clarify that. We don't have the power to review a decision made personally by the minister except for a limited number of protection matters. I think that is the case.

Mr Anderson : That's a provision in the migration legislation rather than the legislation of this department of ministers.

Senator MOLAN: He can now overturn your decision?

Ms Leathem : He can substitute a decision in relation to those section 501 or 501 CAs that were discussed before.

Senator MOLAN: I am interested in the process and the impact of the backlog of the migration and refugees division. You told us that you have 300 members at this stage in the AAT. That's correct, isn't it?

Ms Leathem : That's correct.

Senator MOLAN: Thank you. You've told us that your workload at the moment consists of—I assume this is over a year—42,224 issues or cases?

Ms Leathem : They were matters finalised in the last financial year. We received over 50,000 applications in that year.

Senator MOLAN: In finalising, they could be rejected at that stage or be accepted at that stage. If they are accepted they make—

Ms Leathem : Confirmed, set aside—there's terminology in the AAT Act, which determines how we can finalise matters and they include affirming a decision and setting aside a decision.

Senator MOLAN: Thank you very much. How many of that 44,224 were in the migration and refugees division?

Ms Leathem : Of the finalisations?

Senator MOLAN: The finalisations, yes.

Mr Matthies : There were 18,908 applications finalised in the migration and refugee division in 2016-17.

Senator MOLAN: My staff have given me figures here that in December of last year there were 35,000, is that not correct?

Mr Matthies : Matters on hand?

Senator MOLAN: I don't know. I'm trying to work out the issue of backlog, so I'm more interested in matters that you're working through than matters that you've decided. If you had either 50,000 or 42,000 decided or going through, how many of those—no, I'd rather not be decided—in that year went through the Migration and Refugee Division?

Ms Leathem : The figure that provided by Mr Matthies was for the finalised matter.

Senator MOLAN: Correct.

Ms Leathem : I can say that our active case load is the highest in 10 years and that it has doubled since the amalgamation—

Senator MOLAN: I can imagine.

Ms Leathem : in 2015, driven mainly by filings in the Migration and Refugee Division.

Senator MOLAN: Yes. And what is it, please?

Ms Leathem : The matters on hand, at the moment?

Senator MOLAN: Yes.

Mr Matthies : The Migration and Refugee Division, as at the end of March, is 39,536.

Senator MOLAN: At the same time, what is it for social services and child support, matters on hand?

Mr Matthies : It's 2,203.

Senator MOLAN: And in the other areas that you work in?

Mr Matthies : It's 5,916.

Senator MOLAN: So a backlog of 39,000, of which you're working through roughly 18,000—you've affirmed or set aside 18,000. It's is a significant backlog, isn't it?

Ms Leathem : It certainly is. We currently have the resourcing and funding for 18,000 finalisations in the MRD per year. That's the basis upon which the annual appropriation is generally given.

Senator MOLAN: Okay. What would be your expectation of the percentage that you will finalise, say, this year?

Ms Leathem : It entirely depends on the number of members that we have appointed to do the work. We, effectively, have fewer members now than we had at amalgamation, which means our ability to finalise more matters is constrained until we are able to get some additional members.

Senator MOLAN: Would it get to 70 per cent, do you think, of the 39,000?

Ms Leathem : It's going to be a much longer game than that. There's no prospect, at this stage, that we'll be able to finalise more than, probably, 25,000. That would be our ambition at this stage. But we obviously have a range of strategies in place to try and increase the finalisation.

Senator MOLAN: On notice, could you give to us those figures of on-hand and finalised, by state, please? I believe you have officers in each and every state.

Ms Leathem : Yes. We can take that on notice.

Senator MOLAN: Can you tell me a bit about the strategies you're considering in the hope of increasing it, maybe, from 25,000 to a higher number?

Ms Leathem : Yes. There are a range of different options being looked at. We have introduced a range of triaging and early-case assessment processes to try, as much as possible, to free up members, to be able to deal with hearings and decisions and having skilled staff being able to do as much as possible of the pre-constitution work, to lift and assist members in attending to decisions. There have also been, obviously, conversations with government about whether or not there's any prospect of getting some additional members, particularly on a sessional basis, to allow us to tackle backlog. We are also exploring, wherever possible, digital transformation to try and improve efficiencies within the organisation and make the role of members and staff easier than before.

Senator MOLAN: I have another question on notice. Would you be able to break the migration down lodgements according to citizenship of the applicant—say, could you give us the top six by country of origin?

Ms Leathem : I think we can do that.

Senator MOLAN: The last point I was considering is the flow-on question. My understanding is that once the migration lodgement occurs, and if it is set aside, there is a right to apply for judicial review. I think you were talking about that before.

Ms Leathem : That's correct.

Senator MOLAN: And that allows people to stay in it for another six to 12 months. Is that correct?

Ms Leathem : If the decision is set aside, that generally means it will go back to the agency to determine whether the visa should or shouldn't be issued. Generally, if they're affirmed that the applicant would appeal, and the vast majority of appeals in the Migration and Refugee Division are applicant—

Senator MOLAN: My apologies: you're affirming a decision—

Ms Leathem : We're keeping the decision if we affirm it—

Senator MOLAN: The decision may be to remove—I've had that back-to-front. I understand that now.

Ms Leathem : That's okay. And I believe that the overwhelming majority of appeals for judicial review are applicant appeals against our decision to affirm.

Senator MOLAN: Okay. Now, they go back to the department, to the decision-maker. If they're set aside—the person is happy and they go and do whatever they're doing—

Ms Leathem : No, it goes back to the department at that point. We don't issue visas. It needs to then be dealt with by the department.

Senator MOLAN: Gotcha; okay. But on the basis of that they're issued with a visa?

Ms Leathem : Yes.

Ms Haddad : There is usually a range of criteria that have to be met for the visa to be granted. And typically, when it's considered by the tribunal, the tribunal will consider only one or two criteria, and if it's decided by the tribunal then the remaining criteria go back. It goes back to the department for them to consider those matters, such as health and security.

Senator MOLAN: And they have six to 12 months to go through that next process, I take it? That's certainly what I've been provided with.

Ms Haddad : I think you'd have to defer that to the Department of Home Affairs.

Senator MOLAN: Certainly. What is the impact downstream of those that ask for a judicial review in the Federal Court? Do you have any visibility of that yourself? Is it not the case that a vastly increased amount of work from the AAT is appealed and goes to the Federal Circuit Court or the Federal Court?

Ms Leathem : I think our colleagues from the courts are on after us—

Senator MOLAN: Yes, they are.

Ms Leathem : So, they can probably answer that more fully than I can. But certainly we do keep statistics of a number of matters that are appealed to the courts.

Senator MOLAN: I will certainly put that to your colleagues. But can you provide us with those figures, please?

Mr Matthies : Just in relation to the Migration and Refugee Division?

Senator MOLAN: Absolutely—only the Migration and Refugee Division.

Mr Matthies : In 2016-17 we recorded that there were 3,644 judicial review applications lodged in relation to—

CHAIR: Appeals from the AAT to the Federal Court?

Mr Matthies : From the AAT to the Federal Circuit Court. That's just the Migration and Refugee Division. And for the current financial year to 31 March it's 2,330.

Senator MOLAN: And you said that you had a target in the appeal rate of 3.4 per cent.

Ms Leathem : That's our most recent appeal rate. In our published annual report it's to keep the appeal rate—or set-aside rate, if you like—under five per cent. And this financial year, to date, we're at 3.4 per cent.

Senator MOLAN: Is that a target, or is that just what occurs? You don't strive to lead a target like that, do you, because you assess it on the basis of law?

Ms Leathem : No. Sorry: I've just been corrected. It's 3.5, year to date. What we do is try to strive, obviously, for quality decision-making, and one of the measures of that is to not have too high a successful-appeal rate. So, it's been set at five per cent, and we strive to stay underneath that level.

Senator MOLAN: Okay. That's good. Thank you. I think I'll save the other questions for the next group that comes through. Thank you.

CHAIR: Thank you very much, Ms Leathem, and your team, for the assistance you've given the committee today.