Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Legal and Constitutional Affairs Legislation Committee
Refugee Review Tribunal

Refugee Review Tribunal


CHAIR: Mr O'Brien, good morning and welcome to you.

Mr O'Brien : Good morning, Madam Chair.

CHAIR: Do you have an opening statement for us?

Mr O'Brien : Yes, I do. The Migration Review Tribunal and the Refugee Review Tribunal last appeared before the committee in February this year. By way of opening, I would like to highlight some of the more significant developments since then, first of all focusing on our workload in this financial year up to 30 April. Our workload has continued to increase as lodgements in both tribunals have continued to increase significantly. At the same time, I am pleased to advise senators that the tribunals have responded to the challenge by increasing the output of decisions in the financial year to date. As at 30 April the details for both lodgements and decisions are as follows. First of all, on the MRT we have had 10,882 lodgements, which is an increase of 30 per cent when compared with the same period in 2010-11. We have made 6,405 decisions on the MRT, which is an increase of 27 per cent when compared with the same period in 2010-11. At 30 April, though, we had 15,265 active cases, an increase of 47 per cent when compared with the same period in 2010-11. To turn to the RRT, at 30 April we had 2,626 lodgements, an increase of 11 per cent when compared with the same period in 2010-11. We had made 2,203 decisions, an increase of three per cent when compared with the same period in 2010-11. We had at 30 April 1,526 active cases, an increase of 59 per cent when compared with the same period in 2010-11.

So where have the increased lodgements come from, particularly in the MRT? We have had a total of 3,117 student visa refusal applications lodged with the tribunal so far this financial year, which represents 29 per cent—almost one-third—of the total lodgements. As I advised the committee in our February statement, our capacity difficulties in dealing with the rise in lodgements have been exacerbated by the loss of a number of experienced RRT members to the department's Independent Protection Assessment Office, which assesses the claims of irregular maritime arrivals. However, despite the loss of those members I expect that we will come close to achieving 10,800 decisions across both tribunals this financial year. Total decision output in 2010-11, the previous financial year, was 9,181, and the government's decision to transfer to the RRT reviews for irregular maritime arrivals will result over the coming months in the return of our members from the Independent Protection Assessment Office.

Let me say a little more about our new irregular maritime arrival case load. As the committee would be aware, the minister announced in November last year that a single protection visa process will now apply to both irregular maritime arrivals and applicants who arrive by other means. The minister further announced in mid-March that the reviews for those offshore entry applicants who had not had their primary interview by 24 March would be undertaken by the RRT. Additional funds of $8.6 million were provided to the tribunals in the recent budget for 2012-13 to fund this increasing case load for the RRT. Since the minister's announcement the tribunals have been preparing for the new case load. We received the first two irregular maritime arrival cases quite recently—8 and 10 May—and we will see more in coming weeks. A considerable amount of effort has gone into preparing for these cases, and I would like to publicly express my thanks to the staff and members who have been instrumental in the planning.

I will mention some strategies we have adopted to deal with our increased workload on both tribunals. We have put in place a range of strategies to deal with the increased MRT and RRT workload. Those strategies have included the establishment of task forces to deal with particular cohorts of cases, and we are making greater use of allocations to members of batches of cases of a similar kind in order to increase our throughput.

Let me say something briefly about member recruitment. Action is underway to appoint additional members and senior members in order to address our capacity problems and to enable us to deal with the new RRT irregular maritime arrivals case load. The selection advisory committee's recommendations are now with government and, subject to cabinet processes, I am hopeful that the tribunals will have additional members on board in July.

Turning to our key performance indicators, and first of all focusing on judicial review applications, despite the increase in the quantity of decisions I think quality on the tribunals continues to be maintained. The number of judicial review applications continues to be fewer than in previous years. The court remittals also remain low for both tribunals, consistent with recent trends. Of the 8,608 decisions made across both tribunals to 30 April, less than one per cent have been overturned on judicial review.

Another key performance indicator of the RRT is compliance with the 90-day obligation to turn cases around. The growth in the RRT case load, the loss of experienced RRT members I have mentioned and our resulting inability to constitute RRT cases to members as quickly as we have done in the past have meant a decline in the percentage of RRT cases completed within 90 days of receipt of the department's file. At 30 April 2012 we met the 90-day requirement in 34 per cent of cases, whereas at the time of our Senate estimates appearance in May last year—12 months ago—the compliance rate was 72 per cent.

On a personal note, this will be my last appearance before the committee in my capacity as principal member of the tribunals, as my appointment expires on 30 June. My colleague Deputy Principal Member Amanda MacDonald will next month act in the position until a new principal member takes up the duty. Over the past five years while I have been principal member some very significant work changes have been made in the tribunals. I have certainly sought to lift the quality of tribunal decisions and to ensure fair outcomes. At the same time, I have also sought to maintain a high volume of decision making to match the high volume of applications. It is interesting to note that the position concerning the MRT, just focusing on that tribunal, at the time of our May 2007 appearance before this committee five years ago was as follows. At that time, MRT lodgements for the year were 4,812, which is 44 per cent less than today, and MRT decisions for the year were 5,027, which is 22 per cent less than today.

While in the position of principal member, I have been pleased to oversee a substantial drop in both the number of judicial review applications made to the courts and the number of tribunal decisions overturned on judicial review. I have also been pleased to oversee an expansion in the tribunals' liaison with external stakeholders. Also, with the publication of our country advice reports and a substantial increase in the percentage of our decisions published on AustLII, the tribunals operate in a much more transparent way than they did in the past. I thank all the members and staff of the tribunals for their great support and assistance in enabling us to achieve good outcomes over the past five years. My colleagues and I are happy to elaborate on any of these matters or to answer any questions the committee may have.

CHAIR: Thank you, Mr O'Brien, for your service over the last five years. You will probably be pleased to know it is your last hour here at estimates.

Mr O'Brien : I have enjoyed every moment of that too. It does give us an opportunity to get out to the public some messages about what the tribunal does.

CHAIR: Yes, I think that is an accurate statement as well.

Senator CASH: Mr O'Brien, could I ask you to table your opening statement?

Mr O'Brien : Yes.

Senator CASH: Thank you very much. Could I just confirm, in relation to the current case backlog before the RRT: did you say that it was 1,526 cases?

Mr O'Brien : Yes, that is our active caseload at the moment.

Senator CASH: And that would be considered a backlog?

Mr O'Brien : Yes. Well, they are undecided cases.

Senator CASH: How long do you estimate it will take to clear that backlog of cases?

Mr O'Brien : What we have been working on in the tribunal over the last six months is an attempt to get back to a position whereby we are constituting out RRT cases as soon as they come in. We have made various bulk allocations of cases—I think we have done three of those—to try and reduce that backlog, over the last few months, but we still have a small backlog there. I think it is going to take us another three or four months to get back to a situation where we are constituting cases out as soon as they come in—which is really what we need to do on the RRT.

Senator CASH: When you say 'bulk allocations', what is a bulk allocation? How many cases are within a bulk allocation?

Mr O'Brien : What we have been doing, for full-time members, is allocating out five cases in a batch, normally from the same country—so it might be five Chinese cases to a full-time member. A member who works four days a week gets four cases; a member who works three days a week gets three cases. And we have done a constitution of those cases sort of en masse, in that way.

Senator CASH: And how does that then work? I get five cases if I work full time; what is my anticipated turnaround as a full-time tribunal member?

Mr O'Brien : All members have targets in relation to their decisions for the year. I could not give you the numbers off the top of my head. It depends a bit on the mix of cases they have. Some members, for example, do 80 per cent MRT and 20 per cent RRT and so forth, so it does vary.

Senator CASH: And when you say you have made three bulk allocations, what is the total number of cases that have been allocated in each bulk allocation? If you need to take that on notice, I am happy for you to come back with that.

Mr O'Brien : Yes, I might have to take that on notice; but we can certainly give you those figures.

Senator CASH: Thank you. How many cases does each tribunal consider each year?

Mr O'Brien : This year we are expecting to do about 10,800 decisions—that is across both tribunals. The break-up there would be roughly 7,500 on the MRT and the rest on the RRT.

Senator CASH: What is the anticipated cost of considering that number of cases?

Mr O'Brien : The registrar may be able to answer that.

Mr Plowman : Our funding formula is $43.2-something million for 8,300 cases.

Senator CASH: Okay, so that is 8,300 cases.

Mr Plowman : Plus we get $1,858 per case above or below that. So our funding model is a model which has a sort of base caseload with a marginal price on top of that. So it is not exactly per case, in the way you asked the question; it is more for our caseload as a whole.

Senator CASH: So, for example, the $43 million was for 8,300. You anticipate making 10,800 decisions. Would I then basically multiply the differential by 1,858 to get the additional moneys?

Mr Plowman : That is right.

Senator CASH: Thank you. What percentage of cases considered by the RRT in 2009-10 and 2010-11 were appealed to the Federal Magistrates Court?

Mr O'Brien : As I said, I think across both tribunals it is about one per cent. It would be a little bit higher for the RRT.

Senator CASH: Is that for both financial years? If you had the exact figures, that would be appreciated.

Mr O'Brien : I think we may well have those. The per cent of court applications in relation to the RRT—although these numbers are for all of them—

CHAIR: Mr O'Brien, is this in your annual report?

Mr O'Brien : Yes, it is in the annual report.

CHAIR: What is the page number?

Mr O'Brien : Page 42.

Senator CASH: That is fine. I will have a look at the annual report then. How many new members have been recruited to both tribunals in the past six months? I know you said you are looking to recruit more, but how many have been recruited in the past six months?

Mr O'Brien : In the past six months, none.

Senator CASH: How many additional members do you hope to have on board by July?

Mr O'Brien : I am loath to mention a number, because it really is a matter for the cabinet. The committee's recommendations are before the cabinet and it is up to the cabinet.

Senator CASH: How many applications by IMAs for review of negative decisions have been received? Was that the two that you referred to on 8 and 10 May?

Mr O'Brien : To bring you right up to date, we have had five cases.

Senator CASH: How many have been listed for hearing?

Mr O'Brien : Those cases have all been constituted out to members.

Senator CASH: What is the definition of 'constituted out'?

Mr O'Brien : A member has been allocated to those five cases.

Senator CASH: Have any been listed for hearing?

Mr O'Brien : I would not know.

Senator CASH: Can we find that out or is that not within the information that you have?

Mr Plowman : We can find that out. We would have to do it on notice, though, because it is up to the member to list it for hearing.

Senator CASH: Thank you. Will the applications from IMAs for review of negative decisions be given priority over other applications? They have already been constituted out, so what was the process for determining that they would be constituted out?

Mr O'Brien : The applications came to us in such a way to indicate that they were from irregular maritime arrivals. All five of the persons concerned are in detention, and any detention case gets absolute priority from us.

Senator CASH: Is that a standard policy?

Mr O'Brien : Yes, it is. As time goes on, we are not expecting every IMA case to be a detention case.

Senator CASH: If they are not detention cases, do they go into the 1,526 cases? Would they just go into that body of applications?

Mr O'Brien : Yes, but we are clearly looking quite closely at the IMA cases to make sure that we give them special attention.

Senator CASH: Do you have a formal policy on the treatment of IMA cases that you could table for the committee?

Mr O'Brien : No. We have adjusted, though, some of our documents dealing with detention cases. There is a new principal member direction which relates to applications made for review by offshore-entry persons.

Senator CASH: Are you able to table that?

Mr O'Brien : We could provide that to you.

Senator CASH: Thank you very much.

Mr O'Brien : I can table it.

Senator CASH: So you have received five applications for review of negative decisions for IMAs to date. How many applications for review are currently on hand in total?

Mr O'Brien : I mentioned that we had 1,526 active cases. That would include cases that have been constituted but are still with members and have not been decided yet.

Senator CASH: For the 1,526, not including the five received from IMAs, how long have they been with you?

Mr O'Brien : I would have to take that on notice. As I say, our practice in the past has been to constitute cases out straightaway. Some of these 1,526 cases have been constituted out, but there are some cases that have not been constituted out. I think we are sitting on about 300 unconstituted cases or thereabouts. Some of those would have only a small amount of time on the clock; others would have a little bit more time on the clock.

Senator CASH: In relation to the knowledge that you have, what would be potentially the longest time something has been sitting on the books with you?

Mr O'Brien : We had at 30 April on the RRT 332 cases at 30 days or less. These are on-hand cases, so these include cases that are with members. We had just a handful of cases—79—which were 275 days or more. Some of those you would expect are cases that are being actively managed by a member where there is extra time being asked for by the applicant, documents to be checked and so forth.

Senator CASH: When you constitute an application out, is there a process by which that case has to be actioned within a certain time frame?

Mr O'Brien : The statutory requirement is for cases to be decided within 90 days of receipt of the department's file. For our own internal purposes we have a rule that cases should be decided by members within 90 days as far as possible. There are some cases—

Senator CASH: You have given the evidence, unfortunately—

Mr O'Brien : Sometimes that does not work, yes.

Senator CASH: This is a follow-up of a question for which you did provide an answer to me on notice: has the tribunal seen any applications for same-sex couples using state certification of their union as evidence of their relationship? If so, what weight does the tribunal give those certificates?

Mr O'Brien : We are not aware of any.

Senator CASH: Okay. What is the current set aside rate?

Mr O'Brien : We have numbers on those things. The MRT set aside rate for this year to date is 37 per cent.

Senator CASH: Thirty-seven per cent for—

Mr O'Brien : the MRT.

Senator CASH: My understanding is that that was previously around 32 per cent.

Mr O'Brien : No. It is lower than it has been for any time over the past six years.

Senator CASH: So it is a decrease on previous numbers.

Mr O'Brien : Yes.

Senator CASH: And what is the set aside rate for the RRT?

Mr O'Brien : The set aside rate for this year is sitting at 26 per cent. For your information, that is pretty consistent with the number across the board for a number of years. It has varied between about 18 and 26 per cent over about six years.

Senator CASH: Okay. Do you have on hand the set aside rate for spouse and protective spouse visas?

Mr O'Brien : Yes. For partners generally the set aside rate is 55 per cent.

Senator CASH: Is that above average?

Mr O'Brien : I am told it is 57 per cent.

Senator CASH: That is partners. Do we have spouse and protective spouse visas?

Mr O'Brien : That includes all partner cases.

Senator CASH: Can you distil that down—on notice if you have to?

Mr Plowman : What were those two categories again?

Senator CASH: Spouse and protective spouse.

Ms MacDonald : Do you mean prospective spouse cases?

Senator CASH: Correct.

Ms MacDonald : I think we would need to take that on notice. We have them all in one category of 'partner', but we could give you prospective spouse and partner.

Senator CASH: If you could distil it down, thank you. I also ask you to take on notice—unless you have it with you—the absolute number of those cases. For example, how many prospective spouse visas were reviewed and how many were actually set aside?

Mr O'Brien : For those partner refusal cases that I mentioned, which cover prospective spouse as well as spouse, the 57 per cent figure amounted to 285 cases, of a total case load on the tribunal to date of that number I gave you earlier—6,405 decisions made by the MRT.

Senator CASH: Could I now turn to the allegations made by a whistleblower on The 7.30 Report on 2 May 2012. It was alleged that the MRT overturned a decision by the department to refuse spouse and other family visas because of fraud. The evidence given was that the former visa officer stated:

The sponsor would go to the MRT in Australia and the case would be remitted, and in that case we would have to—we'd have no choice but to grant.

The former visa officer went on to say: 'I used to dread seeing the mail from the MRT in Australia because I knew there would be so many remittances back from them saying that these cases needed to be granted.' So you are aware of those allegations. Are you aware of any cases considered by the MRT regarding these applications rejected by the department on the basis of fraud, including identity fraud?

Mr O'Brien : We would not have that. Our statistics would not show those. We cannot give you an answer to that question.

Senator CASH: Why is that?

Mr O'Brien : Let's say it is a remaining relative case. We make our decision on the criteria for a remaining relative visa. We make that decision on whether a person should be granted a remaining relative visa on the basis of whether all the criteria for that visa have been met. We do not go beyond that to work out precisely what was the basis for the decision.

Senator CASH: Can I take one step back then. Whilst your figures may not be able to show what I have asked, are you personally aware or is anybody at the table personally aware of any cases considered by the MRT regarding visa applications rejected by the department on the basis of fraud, including identity fraud?

Mr O'Brien : I am not aware of cases. The issue on that 7.30 program was this. The number of cases in those categories for Afghanistan and Pakistan is really quite infinitesimal compared with our total case load. Let's look at the family reunion categories, which the program was looking at—that is, subclass 101, 102, 115 and 117, and they are child, adoption, orphan relative and remaining relative. Over five years we had 214 Afghani cases and 20 Pakistani cases when we looked at the figures, and the number set aside for Afghanistan was 62 per cent and Pakistan 40 per cent, but there were only eight cases set aside. So they were very, very minor numbers in the total scheme of things.

In terms of fraud or documents that are questionable, if I can put it that way, that is a problem across the board to some extent. We do see cases, including on our RRT case load. I am particularly thinking of cases coming out of China, for example, where documents are presented to us and a member has very severe doubts about the authenticity of the documents. It is just part of the job we do in trying to work out what the proper story is, having regard to the fact that some of the documents presented do not look as if they are proper documents.

Senator CASH: On that point, and I will go back to the allegations made on The 7.30 Report shortly, how often do members of the tribunals ask for document checks?

Mr O'Brien : It is a reasonably frequent occurrence. I do not know whether we would have the actual numbers, but there are two things we do. We use the department's document verification service, and in other cases we have arrangements with the Department of Foreign Affairs and Trade, through an MOU. We do ask for verification of documents at times, through the Australian post overseas, asking for an officer, for example, to attend at a particular registry to look at whether a document we have got is one of the documents that have been produced by that registry.

Senator CASH: In answer to my question of how often members ask for document checks, you said, 'Reasonably frequently'. What does 'reasonably frequently' actually mean?

Mr O'Brien : I have probably overstated in saying, 'Reasonably frequently'. It happens.

Senator CASH: In how many cases out of ten?

Mr O'Brien : Fewer than one out of ten.

Senator CASH: How often have fraudulent documents been identified by the tribunal?

Mr O'Brien : That is a difficult question to answer. There are cases that we have in front of us from time to time where, as I say, we do question a document. That is not in every case but occasionally a case comes before a member where there is a question about the validity of a document.

Senator CASH: In terms of the actual identification of fraud, though, if you are questioning the validity and the validity is not upheld and the document is found to be fraudulent—how often does that occur?

Mr O'Brien : I would not be able to hazard a guess on that.

Senator CASH: Are you able to take that on notice?

Mr Plowman : We do not actually keep that information.

Senator CASH: Why is that?

Mr Plowman : I do not know why it is; we just have not collected it. I think it would be very difficult to collect that information.

Senator CASH: For example, in the event that a document is found to be fraudulent, what do you then do?

Mr O'Brien : Let me put it this way. In some countries, as you know, there are no registers of births, deaths, and marriages, so it becomes very difficult at times to test the veracity of documents that are provided to you. I know, as a member myself, I have had a case where a document has been provided to me by friends and relatives of the applicant, and no doubt those friends and relatives are trying to do the best they can to assist the applicant for the visa, but it becomes apparently fairly quickly that the document is not a proper document, in the sense that it has been made to look as if it is some official document but it is not an official document. But those cases are not frequent. They do happen from time to time. In that sense, it is hard to call them fraudulent documents. They are documents that have been provided by well-meaning people no doubt trying to assist the applicant, but they do not carry the case anywhere.

Senator CASH: What is the definition then of a fraudulent document, if that is not a fraudulent document?

Mr O'Brien : I do not know. You could define a fraudulent document the way you want to, but I would talk about a document that has been manufactured and put forward as if it is a real document.

Senator CASH: Does the department, or do the tribunals, have a definition of what is a fraudulent document to give guidance to members as to what they are looking for?

Mr O'Brien : No, we do not, and I do not think we need to. All documents that are on the department file or that are provided to the tribunal are looked at by members, and members attempt to look at the document to see whether it is internally consistent and whether it looks genuine on the face of it. As I say, if it is an important document and one that might be critical to the case then they do have the opportunity to have that document properly examined by the department's document review unit, or another possibility might be to get in touch with the overseas post to have that post make some investigations to see whether the document is a genuine document.

Senator CASH: How many documents have been sent to the department's document review unit in the last financial year, in the current financial year to date?

Mr O'Brien : I would have to take that on notice.

Senator CASH: If you could, thank you very much.

Mr O'Brien : Documents that are provided to the tribunal need to be weighed like any other evidence. Sometimes there are documents provided that we give significant weight to and other times there are documents provided that we do not give weight to. It depends on what the document is, the circumstances in which it was provided, what it is intended to prove—all those sorts of things.

Senator CASH: Does the tribunal ask for DNA testing of family applicants?

Mr O'Brien : Sometimes we do, and sometimes that is provided to us voluntarily.

Senator CASH: How often would the MRT ask for the DNA testing?

Mr O'Brien : It is not something that we would have statistics on. I can think of one case myself, which was an orphan relative case which came before me in the last 12 months, where a DNA test was provided by the sponsor in Australia, which showed conclusively, if you like—these DNA tests always have small allowances made—that the sponsor in Australia was indeed the aunt of the two boys who were seeking to come to Australia. That is one case. That is anecdotal.

Senator CASH: Could you take it on notice on how many occasions since November 2007 the tribunal has asked for DNA testing of family applicants?

Mr O'Brien : I do not think that we would have that. Would we?

Mr Plowman : We can see whether we can provide it. I am not sure that would be required. We do not necessarily know. We may not necessarily collect that information. Unless we have it from a member putting it into the CaseMate system, it would be hard to be able to collect that information, because we would not be able to go through each individual case file to find that sort of information.

Senator CASH: So there are no criteria for a member to request DNA evidence'?

Mr O'Brien : No.

Ms MacDonald : It may be something that the applicant offers to provide in a hearing, and the member takes up that offer, but there would not be formal documentation. The applicant would then provide it if they then decided to do the DNA testing.

Senator CASH: If the applicant themselves offers their DNA testing results, is there a process undertaken to determine the veracity of those results?

Mr O'Brien : If DNA testing is provided, it is provided by authoritative official agencies.

Senator CASH: Has the MRT looked at the allegations made in The 7.30 Report?

Mr O'Brien : Yes, indeed we did. I was interviewed as part of that 7.30 Report and indeed provided then some further information to Media Watch. You will recall that Media Watch was concerned about the way that story was presented, to some extent. We were asked for some further information, which we provided to Media Watch.

Senator CASH: You are actually right. In The7.30 Report story, you stated:

We're not coping particularly well at the moment. We've got a very large backlog on the Migration Review Tribunal and we've also had a small backlog on the Refugee Review Tribunal.

Given the demand on your resources—and you have certainly again outlined those demands today—have MRT members been able to refute the findings of the department that an application was fraudulent?

Mr O'Brien : I am not quite sure what that question means. In the interview that was conducted with me—and this was part of the interview that did not go to air—the point that I was trying to make was that the family reunion categories they were talking about for Afghanistan and Pakistan were an absolutely infinitesimal part of our overall numbers. The other point I was trying to make in the interview was that questions of documents of doubtful validity arise in any number of cases. There did not seem to be anything particular about these cases that The7.30 Report was focusing on.

Senator CASH: How many visa applications have been appealed and reviewed by the MRT in the past five years, by year? How many have been set aside and who has lodged such appeals?

Mr O’Brien : Do you mean: with how many of the applications that come to us are we setting aside the department's decision?

Senator CASH: Yes.

Mr O’Brien : The set-aside rates are the rates that I gave you earlier. This year, across all categories on the MRT, we have set aside 37 per cent in total. Going back for one year and two, three, four and five years before that, it goes 41 per cent, 45 per cent, 48 per cent, 50 per cent, 53 per cent. So it has come down from 53 per cent in 2006-07, which was the set-aside rate then, to 37 per cent this year.

Senator CASH: Has the minister lodged appeals to any visa applications set aside by the tribunal in the past five years?

Mr O’Brien : Yes, he certainly would have. Now you are talking about judicial review applications to the Federal Magistrates Court?

Senator CASH: Yes.

Mr O’Brien : Yes, there have been a handful of cases, but very small numbers.

Senator CASH: Could you take on notice to provide us with those numbers over the last five years?

Mr O’Brien : Yes. We can certainly provide those.

Senator CASH: Are you aware of what the outcomes of those appeals were?

Mr O’Brien : Occasionally, yes, our decision was set aside and remitted to us.

Senator CASH: Do you know in how many cases your decision was set aside?

Mr O’Brien : On notice, we could provide that.

Senator CASH: Thank you very much. I will put a number of questions on notice to you. Chair, can I just ask three more questions?

CHAIR: Yes. That would be good.

Senator CASH: What has been the impact of the new complementary protection arrangements? Has the department reviewed any cases on the basis of the new complementary visa protections? If so, what has been the outcome?

Mr O’Brien : As at 30 April, no case has been set aside by the RRT on complementary protection grounds. I am aware of one case since then, which has occurred this month, where we have had a set-aside of the department's decision on complementary protection grounds. I expect it will take some time for complementary protection to have its full effect. It will start to have its full effect once applicants start claiming in their RRT applications that they are entitled to a protection visa on complementary protection grounds and then that application of course is dealt with by the department and then comes to us. We have not had that situation yet.

Senator CASH: In the May budget, there was an allocation of $3.1 million in capital costs. What was that for?

Mr Plowman : That was to do with the new IMA case load we are getting and the capital costs associated with that new case load next financial year.

Senator CASH: That is the new IMA case load. So that was $3.1 million.

Mr Plowman : Correct.

Senator CASH: That segues into my next question. What arrangements have been put in place to manage the case load resulting from the single review process for all asylum claims?

Mr Plowman : We got funded $8.6 million in the budget—

Senator CASH: Which was what, Mr O'Brien, you referred to?

Mr O’Brien : Yes.

Mr Plowman : The $3.1 million is the capital component of that $8.6.million, the rest being a recurrent component. We have also got in place two working parties within the organisation, one on case load management to ensure we have the appropriate policies and processes in place. We have been liaising with the department around that in terms of making sure we can manage that. Part of that new principal member direction was part of the consideration of that and a few other things. We also have a staffing infrastructure working party within the tribunals to also manage those other matters to do with the new case load.

Senator CASH: In relation to the $8.6 million, what number of cases is this funding based on for the current year and for 2012-13?

Mr Plowman : We did not get any funding for the current year, so we are doing that within our existing resources.

Senator CASH: So the $8.6 million for 2012-13—how many additional cases was that based on?

Mr Plowman : The expectation is 765.

Senator CASH: The expectation is 765. Basically, if I divide 765 by 8.6, does that give me the additional funding per case?

Mr Plowman : I think you should probably exclude the 3.1 capital because—

Senator CASH: Minus 3.1, okay.

Mr Plowman : Yes—something like that, but it will be inexact science.

Senator CASH: My final question: have you received a copy of the Lavarch report? If not, when do you expect to receive it, and, if so, when did you receive it?

Mr O'Brien : Professor Lavarch's report was commissioned by the minister and, as I understand it, that report has been provided to the minister. It will be a matter for the minister to comment on that report or to release it in due course.

Senator CASH: You have not received a copy of it yet?

Mr O'Brien : We had seen a draft of the Lavarch report.

Senator CASH: When did you see the draft?

Mr O'Brien : It was an ongoing process. We are aware of the terms of the report.

Senator CASH: Did you provide commentary on the draft?

Mr O'Brien : Yes, we did—and indeed, through the whole process. It was quite a consultative process that Professor Lavarch undertook and we certainly had various sessions with him providing him with information.

Senator CASH: Thank you.

Senator HANSON-YOUNG: Would you be able to clarify this so that we are not confused at all: out of the 1,526 active cases, you are saying only five of those are IMAs under the new process. Is that right?

Mr O'Brien : Yes, so far. We have only had five.

Senator HANSON-YOUNG: Are they individuals that had their initial rejection post 25 March?

Mr O'Brien : Yes, I think that is how it must have worked. Indeed, those five cases would not have been part of that 1,526, because I think that figure of 1,526 was at 30 April and the five cases we have had have come since then.

Senator HANSON-YOUNG: Are you able to table the list of members that are on that tribunal?

Mr O'Brien : That is public knowledge. Indeed, it is part of our annual report. They are all listed in our annual report.

Senator HANSON-YOUNG: Have there been any changes since the annual report?

Mr O'Brien : No, not since the annual report. That is right.

Mr Plowman : They are also on our website.

Senator HANSON-YOUNG: Is there any crossover between your tribunal members and the reviewers that were engaged by the department through the IMR process?

Mr O'Brien : Yes, about 20 of our members have also been doing work for the Independent Protection Assessment Office. Some of those members have been full time with IPAO and some of those members have been continuing to do some work with us and also some work with IPAO. We are expecting now that those members will come back to us given the review role that we are now performing.

Senator HANSON-YOUNG: Would you be able to table the names of those reviewers that have been straddling the two?

Mr O'Brien : In terms of the IPAO, I would think it is really a matter for the department. I have certainly got that list, but I would just like to touch base with the department to see if they have any difficulties about releasing the names of the reviewers—but I would not have thought so.

Senator HANSON-YOUNG: This actually might be a question to the minister in this context, but I will try you, Mr O'Brien; if Minister Lundy wants to chip in, that is fine. Is it your understanding that the extra money that has been allocated in the budget—$8.6 million—is being redirected from the IPAO's funding, or has some of it been redirected and other bits have come from somewhere else?

Mr Plowman : It is all offset from the department.

Senator HANSON-YOUNG: Minister Lundy, would you be able to respond to that? Has it been redirected?

Mr Bowles : It is redirected from the IPAO.

Senator HANSON-YOUNG: That whole amount, the $8.6 million?

Mr Bowles : That is correct.

Senator HANSON-YOUNG: Thank you for clarifying that. You talked in your opening submission—and thank you very much for tabling that, because it means I can go back and have a closer look—about the RRT's 90-day compliance as one of the key performance indicators. Are you assuming that, with this new caseload of dealing with the reviews of IMA cases, you will still be able to satisfy that 90-day compliance requirement?

Mr O'Brien : That is a good question, Senator. As you can see, I have referred to it in the context of saying that we are failing at the moment—we are not complying with the 90 days. There are two things, I think, which are going to help us to ensure that we do comply with the 90 days: one is the return of our members from IPAO; the second is the new members, assuming a positive cabinet decision shortly, that we should have on board from 1 July. We are hoping that both of those things together, added to the other things we are doing internally to try and streamline the way we constitute out our cases, will help us to get back to greater compliance with that 90-day requirement. We have never complied 100 per cent with that requirement, as you know, because there are inevitably cases where the applicant is ill and cannot come to a hearing, or they just need more time to provide documents—or for a whole range of other reasons, really. But we did have a situation in the past where we were complying with that 90-day requirement in a little under 80 per cent of cases; and that is what we want to get back to.

Senator HANSON-YOUNG: Yes, okay. I just want clarification in relation to the IMA cases: your view is that you would like them to fit into that 90-day compliance as well, that they are not pushed off under a different performance indicator?

Mr O'Brien : That is exactly right. We are expecting, in due course, that that IMA caseload will just be like the rest of our RRT caseload; and we will be treating them that way.

Senator HANSON-YOUNG: Yes, okay.

Mr O'Brien : Subject to the fact that we do believe that, in the IMA caseload, there is going to be a greater number of detention cases, and we always give them absolute priority—to turn those around within the 90 days.

Senator HANSON-YOUNG: Have you had to have a think about what other access to support services you may need for your reviewers in dealing with some of those detention cases? Some of those people have been in detention for a very long time, and some of them may continue to be in detention for a long time. Even though you may like to be able to stick by your 90-day compliance, it is obviously a decision for the immigration minister as to whether they are released from detention or put on a bridging visa or placed in the community. It is not going to be as straightforward as dealing with your other RRT cases, obviously.

Mr O'Brien : No, it is not. We do expect that there will be a greater proportion of applicants who we recognise as vulnerable persons. We do have vulnerable persons guidelines, which we now use in deciding cases where we think someone has a particular vulnerability. That could be for a lot of reasons; it may have to do with mental, psychological reasons or children or what have you. We will be applying those same guidelines that we have always used, but we will probably find that we are applying them more often in relation to the IMA cases.

Senator HANSON-YOUNG: Would you be able to table a copy of those guidelines?

Mr O'Brien : Yes. I think they are actually public. They are available on our website. We are in the process of revising them, but the current set are there on our website.

Senator HANSON-YOUNG: If the committee could be given a copy, that would be really helpful.

Mr O'Brien : Yes, we can arrange that.

Senator HANSON-YOUNG: Thank you. Have you asked the department for extra resources in terms of accessing clients in remote detention facilities, such as Scherger or on Christmas Island or in Curtin. These are pretty remote places. I went to Scherger last year; we were not even allowed to drive a normal car out there—you have to have a four-wheel-drive and you cannot drive if it has been raining. So they are not the easiest places to get to.

Mr Plowman : Part of the consideration of the funding was potentially what numbers of the new caseload may be in detention away from capital cities—and how many will be in community detention, how many on bridging visas and things like that. Obviously, they are estimates of the future, but that was part of the consideration in the whole funding model, and there is a provision to review that model should the basic assumptions change when we get closer to it.

Senator HANSON-YOUNG: Okay. Have you had to ask the department to put in things like teleconferencing and that type of equipment into facilities that do not currently have them?

Mr Plowman : We have been talking to the department about videoconferencing and the potential there. We would like to do as many as we can through videoconferences, where that is possible. So we have also being testing that, and working with the department on that, and seeing the capability in that regard for the various centres.

Senator HANSON-YOUNG: Okay. That is all my questions, thank you.

CHAIR: Senator Cash, did you just want to follow up something quickly from that? Or are you right for us to move on?

Senator CASH: No, that is fine—we can move on. I will, though, as I said, place a number of questions on notice.

CHAIR: Okay. Mr O'Brien, thank you very much.

Senator Lundy: Chair, would I be able to take this opportunity to also place on the public record the government's appreciation of the public service provided by Denis O'Brien over many years, particularly in the context of Senate estimates hearings.

Mr O'Brien : Thank you.

CHAIR: Thank you. Certainly on behalf of the Legal and Constitutional Affairs Committee, I would like to thank you. Are you going on to bigger and better things or taking a bit of time for yourself?

Mr O'Brien : No, I am returning to Canberra. As you may know, Madam Chair, my home base is here in Canberra but I have been commuting to Sydney for the working week. I am looking forward to not having to do that. I will be doing something back here in Canberra.

CHAIR: That is fantastic. Thank you once again. And thank you to the members of the MRT and the RRT for your time this morning.