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Operation of divisions

This section includes detail about the operations of the AAT’s nine divisions during 2018–19.

Freedom of Information, General, National Disability Insurance Scheme, Security, Small Business Taxation, Taxation and Commercial, and Veterans’ Appeals Divisions

The AAT reviews a wide variety of decisions in the FOI, General, NDIS, Security, Small Business Taxation, Taxation and Commercial, and Veterans’ Appeals Divisions. Caseload overview, 2017–18 to 2018–19 – FOI, General, NDIS, Security, Small Business Taxation, Taxation and Commercial, and Veterans’ Appeals Divisions sets out key statistics relating to workload and timeliness for each of these divisions, and for major areas of work within divisions, for the last two financial years. Lodgements increased by five per cent in 2018–19, while the number of finalisations and cases on hand at year end also increased by a similar amount.

General Division

The General Division has the largest and most diverse caseload among this group of divisions and we welcomed the assignment of Deputy President Britten-Jones as the inaugural Division Head on 20 March 2019. The areas of work with the largest volumes of applications were second review of Centrelink decisions then the review of decisions made under Commonwealth workers’ compensation legislation, decisions about Australian citizenship, visa decisions made on character grounds and decisions relating to vocational education and training regulation.

The number of applications for second review of Centrelink decisions lodged in this reporting period was slightly below the number received in 2017–18. However, lodgements increased over the course of the reporting year, particularly in the last three months, flowing from the increasing number of first review applications finalised by the Social Services and Child Support Division. Of all lodgements within this area of work, the largest proportion were for the review of disability support pension decisions (49 per cent). Applications relating to newstart allowance, age pension and family tax benefit collectively made up a further 30 per cent of the lodgements. While the proportion of cases finalised within 12 months of lodgement in 2018–19 decreased by three per cent compared with 2017–18, the average time taken to finalise cases improved by two weeks. The majority of these cases were finalised within six months of lodgement.

In the AAT’s workers’ compensation jurisdiction, the number of applications we received for review of decisions made under the Safety, Rehabilitation and Compensation Act 1988 and the Seafarers Rehabilitation and Compensation Act 1992 declined further in 2018–19. This can be attributed primarily to significantly fewer applications lodged in relation to Comcare decisions. While we finalised more applications than were lodged in the reporting period, timeliness continued to be an issue. About half of the cases took longer than 12 months to finalise with the average time to finalisation seven weeks longer than it had been in 2017–18. These cases take longer to finalise than other types of cases because of the significant amount of investigation and evidence gathering, particularly medical evidence, that takes place only after an application is lodged. However, challenges with member availability in part of the reporting period and a focus on finalising older cases also contributed to the result for the reporting year. The Division Head has identified this jurisdiction as a particular area of focus for 2019–20.

Caseload overview, 2017–18 to 2018–19 – FOI, General, NDIS, Security, Small Business Taxation, Taxation and Commercial, and Veterans’ Appeals Divisions

DIVISION/AREA OF WORK

LODGED

FINALISED

ON HAND AT YEAR END

% FINALISED WITHIN 12 MONTHS

MEDIAN TIME TO FINALISE (WEEKS)

2017–18

2018–19

% change from 2017–18

2017–18

2018–19

% change from
2017–18

2017–18

2018–19

% change from 2017–18

2017–18

2018–19

2017–18

2018–19

Freedom of Information

47

40

-15%

50

32

-36%

63

69

10%

65%

66%

37

33

General

5,300

5,342

1%

5,234

5,217

0%

3,819

3,931

3%

81%

75%

25

25

Australian citizenship

605

708

17%

484

575

19%

331

464

40%

92%

87%

19

22

Centrelink (2nd review)

1,919

1,882

-2%

2,267

1,708

-25%

920

1,091

19%

90%

87%

22

20

Visa-related decisions relating to character

235

308

31%

230

340

48%

73

71

-3%

94%

95%

11

11

Workers’ compensation

1,583

1,368

-14%

1,540

1,633

6%

1,877

1,601

-15%

57%

48%

47

54

Other

958

1,076

12%

713

961

35%

618

704

14%

90%

84%

13

16

National Disability Insurance Scheme

802

1,206

50%

441

1,052

139%

515

668

30%

98%

89%

19

23

Security

7

14

100%

10

13

30%

8

9

13%

50%

85%

54

28

Small Business Taxationa

N/A

123

N/A

N/A

5

N/A

N/A

118

N/A

N/A

100%

N/A

5

Taxation and Commercial

895

800

-11%

790

738

-7%

1,325

1,405

6%

63%

69%

35

34

Taxation

826

670

-19%

717

642

-10%

1,260

1,285

2%

62%

68%

36

35

Other

69

130

88%

73

96

32%

65

120

85%

67%

73%

30

31

Veterans’ Appeals

361

261

-28%

480

367

-24%

418

314

-25%

56%

53%

47

46

TOTAL

7,412

7,786

5%

7,005

7,424

6%

6,148

6,514

6%

80%

75%

26

27

a The Small Business Taxation Division commenced on 1 March 2019.

The number of applications for review of decisions about Australian citizenship, both lodged and finalised, grew again in 2018–19, although at a slower rate than in the previous reporting period. General Division shows the outcomes of the reviews finalised in the reporting period. The proportion of decisions changed on review increased by five percentage points from 2017–18 to 24 per cent in 2018–19: 18 per cent in accordance with terms of agreement reached between the applicant and the Minister and six per cent by way of decision following a hearing. The AAT affirmed the decision under review in 16 per cent of cases, a similar proportion to the previous year. The remaining 60 per cent of applications were either withdrawn, failed to meet the requirements for a valid application or were otherwise dismissed.

Applications for review of visa decisions made on character-related grounds – primarily decisions to cancel or refuse a visa under section 501 of the Migration Act or not to revoke a mandatory visa cancellation under section 501CA – increased by almost a third in 2018–19, continuing the trend from earlier years. Most applications were required to be finalised within 12 weeks after the applicant was notified of the decision. To ensure the AAT manages this increasing workload effectively, Senior Member Theo Tavoularis was designated as the list manager for these applications during the reporting year. As shown in General Division, the decision under review was changed in 26 per cent of cases: three per cent in accordance with terms of agreement reached between the applicant and the Minister and the remainder by way of decision following a hearing. This is three percentage points higher than in the previous reporting year. The AAT affirmed the decision under review in 58 per cent of cases in 2018–19, two percentage points higher than in 2017–18. The remainder of the applications were withdrawn, failed to meet requirements for a valid application or were otherwise dismissed.

In relation to the diverse range of other applications lodged with the General Division in 2018–19, the 12 per cent increase over the previous reporting period was largely due to an increase in applications to review decisions made by the Australian Skills Quality Authority, the national regulator for the vocational education and training sector. That caseload comprised approximately 36 per cent of this group of applications.

Freedom of Information Division

Most applications dealt with in the FOI Division are for the review of decisions made under the Freedom of Information Act 1982. However, the division also reviews decisions made under the Privacy Act 1988 and the Archives Act 1983 (except for those in respect of access to a record of the Australian Security Intelligence Organisation which are dealt with in the Security Division). There were slightly fewer lodgements in 2018–19 and the overall caseload remains low with a small increase in the number of cases on hand at 30 June 2019.

National Disability Insurance Scheme Division

The demand for the AAT’s services to review decisions made under the National Disability Insurance Scheme Act 2013 continued to grow in 2018–19 as the roll out of the National Disability Insurance Scheme proceeds. Deputy President Stephanie Forgie and Senior Member Fiona Meagher assisted with coordination of the work in the division during the reporting year.

More applications were lodged and finalised in 2018–19 than in any earlier year. The largest volume were again lodged in New South Wales followed by Victoria, Queensland and South Australia. The majority of applications we received concerned whether the funding for supports approved by the National Disability Insurance Agency is reasonable and necessary (52 per cent of all lodgements). The proportion of applications relating to whether a person is eligible to access the Scheme reduced slightly from 42 per cent in 2017–18 to 39 per cent in 2018–19. Most of the other applications related to refusals to review plans (10 per cent of all lodgements).

As in previous years, most applications were resolved during our pre-hearing processes, particularly through the use of alternative dispute resolution. As shown in FOI, NDIS, Security and Veterans’ Appeals Divisions , the majority of cases were finalised either in accordance with terms of agreement reached between the applicant and the Agency (60 per cent) or withdrawn by the applicant (32 per cent). The decision under review was changed in 59 per cent of all finalised applications, 58 per cent by agreement between the parties. Only a very small proportion of cases were finalised by the Tribunal making a decision following a hearing (two per cent).

In terms of the timeliness of our review processes, we continued to finalise most applications within 12 months of lodgement. The average number of weeks to finalise cases increased by four weeks in 2018–19, due to the significant increases in lodgements and a growing number of cases on hand, but the majority of applications were still finalised within six months of lodgement.

Security Division

The Security Division deals with applications for review of security assessments made by the Australian Security Intelligence Organisation under the Australian Security Intelligence Organisation Act 1979 and applications about decisions under the Archives Act in respect of access to an ASIO record. While the number of lodgements remained low in 2018–19, cases in this division are resource intensive as they require tailored case management and are subject to specific procedures, particularly at the hearing stage, including multi‑member tribunals for the review of security assessments.

Small Business Taxation Division

The Small Business Taxation Division was created on 1 March 2019 as part of a suite of measures introduced to make it easier for small businesses to seek review of decisions of the Australian Taxation Office. Deputy President Bernard McCabe was assigned as Division Head in addition to his role as Division Head of the Taxation and Commercial Division. A number of newly appointed members and existing members with relevant experience were assigned to the division.

In addition to the introduction of a lower application fee, the AAT developed a new case management model for these cases which is set out in the Review of Small Business Taxation Decisions Practice Direction and our Guide to the Small Business Taxation Division. We aim to finalise cases at the earliest opportunity and without a hearing where possible. The model includes the following components: the assignment of a dedicated AAT case manager for each application from lodgement to finalisation; triaging and early case assessment conferencing by a registrar with tax experience to determine the best pathway for the review; the use of other alternative dispute resolution processes to encourage the parties to reach agreement where possible; and, if a case proceeds to hearing, delivery of a decision within 28 days after the hearing. The model was designed to work effectively with the Small Business Concierge Service delivered by the Australian Small Business and Family Enterprise Ombudsman which guides and supports small businesses through the AAT review process, including by facilitating access to legal assistance.

A modest number of applications was lodged in the first months of the division’s operations with a small number of applications finalised in that period. The AAT is monitoring the caseload and the operation of the new model.

Taxation and Commercial Division

The Taxation and Commercial Division deals with the review of decisions of key Australian Government regulators, including the Australian Financial Security Authority, the Australian Prudential Regulation Authority, the Australian Securities and Investments Commission, the Australian Taxation Office and the Tax Practitioners Board. Since 1 March 2019, applications for review of customs decisions made by the Australian Border Force and decisions relating to the research and development tax incentive have been reviewed in the division. Some other types of applications, formally allocated to the General Division, are also managed in this division in accordance with the Review of Taxation and Commercial Decisions Practice Direction, including decisions made by the Aged Care Quality and Safety Commission and the Civil Aviation Safety Authority.

Applications for review of taxation decisions remained the largest proportion of the cases in the division but, consistent with the trend over recent years, were lower again in 2018–19, even when applications dealt with in the Small Business Taxation Division are taken into account. This may be linked, in part, to the Australian Taxation Office’s processes to facilitate the early resolution of disputes. In relation to regulatory decisions, there was an increase in both lodgements and the number of applications finalised in the reporting year, partly as a result of the new types of applications dealt with in the division but also due to additional applications in a range of areas. The proportion of applications finalised within 12 months of lodgement improved in 2018–19 with the average time from lodgement to finalisation remaining steady.

While the overall caseload of the division continued to be relatively low in 2018–19 when compared with other divisions, the cases dealt with in this division are generally legally and factually complex, and can have significant financial and public policy implications. Members are actively involved in the case management of these cases from the outset and the division relies on having enough expert members available to deal with the particular demands of the division. A review of the current practice direction for the division, in place since 2015, was commenced in the latter part of the reporting year and will be completed in 2019–20.

Veterans’ Appeals Division

In this division, the AAT reviews decisions made about benefits for current and former members of the Australian Defence Force and their dependants, including under the Military Rehabilitation and Compensation Act 2004, the Safety, Rehabilitation and Compensation (Defence–related Claims) Act 1988 and the Veterans’ Entitlements Act 1986. As in previous years, there were fewer lodgements in all three areas of decision-making, particularly applications under the Safety, Rehabilitation and Compensation (Defence–related Claims) Act.

As with the workers’ compensation jurisdiction, these cases often require additional evidence, particularly medical evidence, which can impact on timeliness. There was a marginal decrease of three percentage points in the proportion of cases finalised within 12 months between 2017–18 and 2018–19. Issues relating to the availability of assistance and support for applicants in the review process can also affect the way in which applications progress. During the reporting period, the Veterans’ Advocacy and Support Services Scoping Study conducted by Robert Cornall AO and the Productivity Commission’s inquiry into compensation and rehabilitation for veterans considered aspects of the processes for the review of decisions about veterans’ entitlements, including legal and other assistance for claimants. Their final reports include recommendations for improving support.

Alternative dispute resolution

Given the diverse nature of the applications that are dealt with by these divisions, the AAT uses a range of strategies to determine appropriate and efficient case pathways for individual cases and cohorts of cases. With the exception of the Security Division, we use alternative dispute resolution in all of these divisions to help parties understand and narrow the issues in dispute, identify further evidence that will be gathered, and try to reach agreement about how their case should be resolved. ADR events are typically conducted by conference registrars, who are legally qualified and accredited mediators. In 2018–19, 82 per cent of applications in these divisions were finalised without the AAT making a decision following a hearing. At least one ADR process was held in 69 per cent of all finalised cases which were validly lodged. On average, parties spent 80 minutes across two ADR processes per case. Most of the ADR processes we conducted were conferences with conciliations the next most common type. See Number of alternative dispute resolution processes, directions hearings and hearings, 2017–18 to 2018–19 for the numbers of ADR processes held. ADR continues to be a highly cost-effective mechanism for achieving review outcomes.

Engagement

The AAT led or was involved in a number of engagement activities in 2018–19 in support of our work across these jurisdictions.

Liaison meetings were held with representatives of various decision-making agencies to discuss operational issues, including the Australian Skills Quality Authority, Comcare and the National Disability Insurance Agency. We also liaised closely with The Treasury, the Australian Small Business and Family Enterprise Ombudsman, and the Australian Taxation Office in the context of establishing the Small Business Taxation Division.

During the reporting year, the AAT launched a regular program of engagement with stakeholders in the taxation and commercial jurisdictions. Deputy President McCabe hosted a series of briefing sessions on the new Small Business Taxation Division covering all registries which included presenters from the Australian Small Business and Family Enterprise Ombudsman and the Australian Taxation Office. Information sessions were also held on the same day in relation to developments in the Taxation and Commercial Division. Attendees at the sessions included AAT members and staff, lawyers and tax agents who practice in these areas and representatives of decision-making agencies.

Another initiative undertaken during the reporting year in collaboration with the Victorian Tax Bar Association was the introduction of a pilot pro bono scheme to provide legal advice and support to eligible taxpayers who are seeking review of a taxation decision at the AAT. This joint scheme builds upon existing relationships with other providers of pro bono services such as the small business tax clinic at Curtin University in Western Australia.

Migration and Refugee Division

The Migration and Refugee Division reviews decisions made under the Migration Act relating to a wide range of visas that permit non-citizens to travel to, enter and remain in Australia on a permanent or temporary basis. They include decisions to refuse to grant visas and to cancel visas, as well as related decisions to refuse to approve business sponsors, nominated positions and business activities. Delegates of the Minister administering the Migration Act generally make the decisions that are reviewable in the division.

Deputy President Jan Redfern was the Division Head throughout the reporting year assisted by Deputy Division Head Senior Member Dr Irene O’Connell.

Caseload

With more than 36,000 applications received in 2018–19, lodgements in the division remained at the significantly higher level we experienced in 2017–18. In each of the current and previous reporting years, the number of applications lodged was about double the lodgements in 2015–16. The appointment of additional members in the reporting period as well as the implementation of a range of innovative case management strategies enabled the division to increase the number of applications finalised in 2018–19 by 16 per cent compared with the previous year and to achieve a result above what had been projected. However, due to the cumulative effect of the high volumes of applications lodged in recent years and not having the required number of members and staff to deal with the caseload, we have been unable to keep pace with demand. Our growing backlog and some targeted strategies to finalise older cases affected the timeliness of the review process. The number of cases on hand, almost 60,000 at 30 June 2019, remains the key challenge for the division.

Key statistics in relation to workload and timeliness for the major areas of work within the Migration and Refugee Division for the last two financial years are set out in Caseload overview, 2017–18 to 2018–19 – Migration and Refugee Division. More detailed information about the division’s caseloads is set out below and is also available on our website.

Caseload overview, 2017–18 to 2018–19 – Migration and Refugee Division

AREA OF WORK

2017–18

2018–19

% change from 2017–18

Migration

Lodged

26,445

25,809

-2%

Finalised

12,539

16,771

34%

On hand at year end

29,991

39,029

30%

% finalised within 12 months

53%

36%

Median time to finalise (weeks)

50

68

Refugee

Lodged

11,488

10,363

-10%

Finalised

5,421

4,121

-24%

On hand at year end

14,445

20,689

43%

% finalised within 12 months

66%

37%

Median time to finalise (weeks)

31

72

TOTAL

Lodged

37,933

36,172

-5%

Finalised

17,960

20,892

16%

On hand at year end

44,436

59,718

34%

% finalised within 12 months

57%

36%

Median time to finalise (weeks)

46

68

Migration cases

Applications relating to permanent and temporary entry migration visas accounted for 71 per cent of lodgements in this division in 2018–19. Decisions about visa refusals formed 76 per cent of the caseload, nomination and sponsorship decisions comprised 19 per cent and the remaining five per cent were about decisions to cancel visas. With lodgements remaining relatively consistent with 2017–18, the significant increase in cases finalised in 2018–19 resulted in an improvement in our clearance rate compared with the previous year. At 30 June 2019, migration cases represented 65 per cent of the active caseload in this division.

Migration caseload by key visa categories, 2017–18 to 2018–19 show, for the key visa categories, the number of applications lodged and finalised in the last two reporting periods and the number of cases on hand at the end of those reporting periods.

Migration caseload by key visa categories, 2017–18 to 2018–19Bar chart showing lodgements, finalisations and on hand by key visa categories for review of migration decisions from 2017–18 to 2018–19. The key visa categories are ‘Bridging’, ‘Business, skilled and work’, ‘Family’, ‘Partner’, ‘Student’, ‘Visitor’ and ‘Other’.

VISA CATEGORY

LODGED

FINALISED

ON HAND

2017–18

2018–19

% change from
2017–18

2017–18

2018–19

% change from
2017–18

2017–18

2018–19

% change from
2017–18

Bridging

448

374

-17%

404

357

-12%

72

90

25%

Business, skilled and work

10,850

12,781

18%

3,932

6,006

53%

12,712

19,490

53%

Nomination/Sponsor approval

4,553

5,009

10%

1,322

2,063

56%

5,562

8,508

53%

Permanent business

3,321

3,420

3%

690

1,299

88%

3,693

5,816

57%

Skilled

1,233

1,637

33%

772

1,159

50%

1,157

1,637

41%

Temporary work

1,743

2,715

56%

1,148

1,485

29%

2,300

3,529

53%

Family

562

699

24%

434

386

-11%

699

1,012

45%

Partner

3,560

3,330

-6%

2,639

2,159

-18%

4,405

5,575

27%

Student

8,550

6,207

-27%

3,746

6,090

63%

10,131

10,249

1%

Student cancellation

837

708

-15%

454

974

115%

1,318

1,051

-20%

Student refusal

7,713

5,499

-29%

3,292

5,116

55%

8,813

9,198

4%

Visitor

2,275

2,204

-3%

1,238

1,646

33%

1,855

2,411

30%

Other

200

214

7%

146

127

-13%

117

202

73%

TOTAL

26,445

25,809

-2%

12,539

16,771

34%

29,991

39,029

30%

As in 2017–18, applications relating to business, skilled and work visas were the largest cohort of cases received in 2018–19, constituting almost half of all lodgements in the migration caseload. Applications have more than tripled since 2015–16. A focus on this cohort of cases in the reporting year resulted in a significant increase in finalisations and an improved clearance rate which rose by more than 11 percentage points from 2017–18. While the overall number of cases on hand continued to increase, the number of active cancellation cases was reduced.

Applications to review student visa refusals and cancellations were the next most common type of cases in 2018–19, accounting for around a quarter of migration lodgements. The allocation of many of the 31 new sessional members who commenced during the year to this cohort of cases and the introduction of a new model for managing these cases led to a surge in finalisations, 63 per cent more than in 2017–18. Coupled with a reduction in the volume of lodgements, the division achieved a clearance rate of close to 100 per cent, up from 44 per cent in 2017–18. Therefore the overall number of cases on hand remained steady, but with a significant reduction in active cancellation cases.

Lodgements relating to decisions about partner and visitor visa cases, respectively 13 per cent and 9 per cent of the migration caseload in 2018–19, declined marginally compared with the previous reporting period. While our clearance rate improved in relation to visitor visa cases this year, it declined marginally in relation to partner visa cases as we concentrated on the cohorts of cases with the largest backlogs and the newer members assigned to deal with this work developed their capacity. The active caseload increased in relation to both types of cases over the course of 2018–19.

The remaining cohorts of cases accounted for less than 10 per cent of the incoming migration caseload. Applications about family visas increased by almost a quarter from 2017–18 leading to a higher number of active cases at the end of the year. The number of cases relating to bridging visas and other types of visas remained low overall but a reasonable proportion require an expedited review as the applicants are in immigration detention. We continued to finalise these cases in a timely manner.

In 2018–19, the division changed the decision under review or otherwise remitted the matter to the Department of Home Affairs in 30 per cent of finalised migration cases and affirmed the original decision in 35 per cent of cases, results that are similar to the last reporting period. As shown in Migration and Refugee Division in Appendix 4 , the remainder of the applications were either withdrawn (22 per cent), did not meet application requirements (8 per cent) or were dismissed by the Tribunal on the basis that the applicant failed to appear at their hearing (5 per cent). Decisions are commonly changed on review because of the availability of new or additional evidence, including oral evidence, that was not before the original decision-maker. A change in the applicant’s circumstances since the time of the original decision can also be relevant under the law in many cases.

Refugee cases

Applications for review of decisions about protection (refugee) visas comprised 29 per cent of all applications lodged in the division in 2018–19, remaining the visa category with the largest number of applications. The vast majority of the applications were for review of a decision to refuse to grant a protection visa which generally requires the Tribunal to consider whether the applicant is a person to whom Australia has protection obligations: whether they are a refugee or, in the alternative, entitled to complementary protection. Fewer than one per cent of the applications lodged in the division were for review of a decision to cancel a protection visa.

The division’s focus in the reporting year was on finalising the older and more complex cases as well as cancellation cases, types of cases which require greater effort. This strategy contributed to a longer average time to finalisation than in the previous reporting period, but the number of applications finalised by way of a substantive Tribunal decision on the merits increased in 2018–19. The decrease in the overall number of finalisations in the reporting period was the result of fewer cases being finalised due to not meeting application requirements and fewer applications being dismissed by the Tribunal.

While there was a small decrease in lodgements compared with 2017–18, the active caseload continued to grow and, at 30 June 2019, represented 35 per cent of all cases on hand in the division.

Refugee caseload by country of reference, 2017–18 to 2018–19 show the number of cases lodged and finalised in 2017–18 and 2018–19 and the number of cases on hand at 30 June 2018 and 2019 by country of reference for nine applicant countries in relation to which the AAT finalised the largest number of applications in the reporting period.

Refugee caseload by country of reference, 2017–18 to 2018–19Bar chart showing lodgements, finalisations and on hand showing lodgements and finalisations by country of reference for review of refugee decisions from 2017–18 to 2018–19. The country of reference categories are ‘Malaysia’, ‘China’, ‘India’, ‘Pakistan’, ‘Vietnam’, ‘Bangladesh’, ‘Fiji’, ‘Indonesia’, ‘Sri Lanka’, and ‘Other’.

COUNTRY OF REFERENCE

LODGED

FINALISED

ON HAND

2017–18

2018–19

% change from 2017–18

2017–18

2018–19

% change from 2017–18

2017–18

2018–19

% change from 2017–18

Malaysia

5,825

5,858

1%

3,701

1,921

-48%

5,584

9,522

71%

China

2,821

1,561

-45%

488

561

15%

3,836

4,838

26%

India

64

227

255%

140

250

79%

456

433

-5%

Pakistan

345

178

-48%

90

183

103%

615

610

-1%

Vietnam

562

465

-17%

104

131

26%

621

955

54%

Bangladesh

35

106

203%

44

114

159%

225

219

-3%

Fiji

82

175

113%

65

111

71%

251

317

26%

Indonesia

294

160

-46%

45

78

73%

398

480

21%

Sri Lanka

234

85

-64%

68

74

9%

297

308

4%

Other

1,226

1,548

26%

676

698

3%

2,162

3,007

39%

TOTAL

11,488

10,363

-10%

5,421

4,121

-24%

14,445

20,689

43%

There were sustained high levels of lodgements from Malaysian nationals in 2018–19, representing 57 per cent of all lodgements concerning protection visas. With nearly 18,000 applications relating to Malaysian nationals lodged since 1 July 2015 and fewer finalisations in the reporting period while we focused on other cohorts of cases, the number of Malaysian cases on hand increased markedly over the course of the year. Those cases represented 46 per cent of all refugee cases on hand at 30 June 2019.

The People’s Republic of China remained the second most common country of reference for applications about protection visas in 2018–19 accounting for 15 per cent of all lodgements. While the volume fell compared with 2017–18, they continued to be at a higher level than in earlier years. They comprised 23 per cent of the active refugee cases at 30 June 2019. Cases relating to China together with Malaysian cases constitute more than two-thirds of the outstanding caseload.

Applications from nationals from more than 100 other countries as well as from stateless persons made up the balance of the caseload in relation to the reporting period. In addition to more lodgements from nationals of Bangladesh, Fiji and India in 2018–19, there were notable increases in the volume of applications from nationals of Ghana, Iran, Sierra Leone and Thailand. Information about the number of lodged, finalised and on hand applications for all countries is available on our website.

The subset of applications lodged by persons who entered Australia by sea increased to 354 in the reporting period from 249 in 2017–18. Decisions made in relation to unauthorised maritime arrivals who entered Australia after 13 August 2012 are generally reviewed by the Immigration Assessment Authority. However, during the reporting period, a Full Court of the Federal Court determined that an instrument appointing part of Ashmore Reef as a port was invalid. As a result, the IAA did not have jurisdiction to review decisions that had been made in relation to certain persons who could make an application to the division. More information about this Federal Court decision is in Chapter 5 Immigration Assessment Authority of this report.

In relation to the outcomes of reviews in 2018–19, nine per cent of all finalised cases were remitted to the Department of Home Affairs compared with five per cent in 2017–18. As shown in Migration and Refugee Division in Appendix 4, the decision under review was affirmed in 57 per cent of cases and the remaining applications either did not meet application requirements (19 per cent), were withdrawn (10 per cent) or were dismissed by the Tribunal on the basis that the applicant failed to appear at a hearing (five per cent). The lower proportions of applications in which the decision is changed by the Tribunal in recent years can be attributed to the higher volume of decisions made in cases relating to Malaysian nationals, the majority of whom have been found not to engage Australia’s protection obligations.

Caseload strategy

The division’s annual caseload strategy sets out our goals in relation to managing the workload in that year as well as how those goals will be achieved, informing the allocation of resources. In the context of the significant growth in both lodgements and the number of cases on hand, the strategy for 2018–19 identified measures to be employed across the full range of cases to seek to increase the number and timeliness of finalisations without compromising the quality of the review process and decision-making. As noted above, particular areas of focus were finalising the older cases in the business, student and protection visa cohorts of cases, the largest proportion of the active caseload, as well as reducing the number of active cancellation cases.

A range of initiatives were pursued during the reporting year. These included the strengthening of arrangements for a coordinated national approach to the caseload with Senior Members providing leadership and national oversight of specific case cohorts and a review of the way registries are organised to support the work. The division also developed and refined a range of innovative case management practices. Applications were triaged to identify the most appropriate case management pathway and cases with similar features or issues were batched together to facilitate more efficient listing and decision-making by members. We made targeted use of the option to send applicants early requests for additional information in 2018–19 with the aim of identifying cases that could be determined on the papers and otherwise better preparing cases for hearing. In relation to student refusal cases, this initiative was accompanied by the development of a smart form providing a more structured way to obtain the required information which applicants could complete and submit online. We also trialled use of the evidence-taking power in the Migration Act in some refugee cases whereby the Tribunal member dealing with the case authorises a senior staff member to take evidence from the applicant which is then made available to the member for the hearing.

As a result of these initiatives, we achieved the following:

  • 20,892 applications were finalised, the highest number since amalgamation, exceeding projections based on the resources available at the time the strategy was developed by 12 per cent
  • the percentage of migration cases finalised without the need for a hearing increased by nearly 50 per cent, comprising cases that were either withdrawn or able to be fast-tracked and determined on the papers without a hearing
  • 4,847 business, nomination and sponsorship, and temporary work cases were finalised which represents the highest number ever achieved for this cohort
  • excluding cases finalised on the basis they did not meet application requirements or the applicant did not attend a hearing, the division finalised five per cent more refugee cases by way of a decision, and more cases of a higher complexity, than in the previous reporting period
  • the number of cancellation cases finalised increased by 95 per cent from 2017–18 and represented nine per cent of all finalisations in 2018–19 compared to 5 per cent in the previous year
  • the overall clearance rate increased to 58 per cent from 47 per cent in the previous year.

The appointment of additional members in 2018–19, including the sessional members, as well as the cross‑assignment of some existing AAT members to the division, lifted our capacity and this will lift further in 2019–20 as the 44 per cent of our members in the division with less than 18 months’ experience deepen their knowledge and expertise. A revised model for staff to provide more tailored support to individual members which will be rolled out in 2019–20 will also enhance their capacity. With the recent appointments, the number of members working in the division has returned to levels close to those prior to 1 July 2015 when we received half the number of applications. A further increase in the number of members and staff together with legislative changes to enhance our case management options and powers is needed to address the backlog and sustained high level of lodgements.

Engagement

The Migration and Refugee Division engaged with external stakeholders in a number of ways in 2018–19, including regular meetings with representatives of the Department of Home Affairs to discuss strategic and high-level operational issues relating to the conduct of reviews and the division’s workload. The AAT also participated in meetings with the Attorney General’s Department, the Department of Home Affairs, the Federal Court and the Federal Circuit Court to share information and discuss common issues arising in relation to the review of migration decisions.

Representatives from the Department of Foreign Affairs and Trade which provides country information reports to support our decision-making in refugee cases attended the AAT on a number of occasions during the reporting period to discuss country information issues and present briefing sessions for members.

We hosted forums throughout November and December 2018 in six AAT registry locations to exchange information with key external stakeholders, including peak migration agent bodies and advocates, on operational, procedural and caseload issues in the division. Details about these forums and other engagement activities can be found in Appendix 5: Speeches and other external activities.

Social Services and Child Support Division

The Social Services and Child Support Division reviews a wide range of decisions made by officers of the Department of Human Services. This includes decisions about:

  • family assistance, farm household support, social security and student assistance entitlements (Centrelink decisions)
  • child support decisions, and
  • paid parental leave.

Deputy President Jim Walsh led the division until 24 March 2019. Senior Member Diana Benk oversaw the management of the division’s work for the remainder of the reporting period.

Caseload

The division’s workload increased again in 2018–19, rising by almost a quarter from 2017–18, but the 16,637 lodgements did not reach the record 17,450 applications received in 2016–17. The increase can be attributed to a significant increase in lodgements relating to Centrelink decisions following a decrease in 2017–18. We were able to keep pace with demand overall, finalising 16,097 applications, an increase of seven per cent on 2017–18, with the timeliness of the review process maintained. Given the increase in lodgements, the division had 21 per cent more cases on hand at the conclusion of 2018–19 than at the end of the previous reporting period. Key statistics in relation to workload and timeliness for the division as a whole and major areas of work within the division for the last two financial years are set out in Caseload overview, 2017–18 to 2018–19 – Social Services and Child Support Division.

Caseload overview, 2017–18 to 2018–19 – Social Services and Child Support Division

AREA OF WORK

2017–18

2018–19

% change from 2017–18

Centrelink (1st review)

Lodged

10,913

14,091

29%

Finalised

12,550

13,491

7%

On hand at year end

1,912

2,519

32%

% finalised within 12 months

>99%

>99%

Median time to finalise (weeks)

10

9

Child support

Lodged

2,328

2,279

-2%

Finalised

2,299

2,356

2%

On hand at year end

769

703

-9%

% finalised within 12 months

99%

98%

Median time to finalise (weeks)

15

12

Paid parental leave

Lodged

194

267

38%

Finalised

226

250

11%

On hand at year end

17

34

100%

% finalised within 12 months

100%

100%

Median time to finalise (weeks)

6

8

TOTAL

Lodged

13,435

16,637

24%

Finalised

15,075

16,097

7%

On hand at year end

2,698

3,256

21%

% finalised within 12 months

>99%

>99%

Median time to finalise (weeks)

11

10

Centrelink

Applications for review of Centrelink decisions comprised 85 per cent of all lodgements in the division in 2018–19 and increased by 29 per cent from 2017–18. The number of applications we lodged and finalised and the number of cases on hand at 30 June for the key payment types for the current and previous reporting period is shown in Centrelink caseload by key payment types, 2017–18 to 2018–19.

Lodgements relating to decisions about disability support pension remained the most common type of application. At 38 per cent of all Centrelink lodgements, the number we received in 2018–19 was significantly higher than the previous year. In relation to the other main payment types, the volume of applications about newstart and youth allowance each increased by more than a third. Applications about age pension remained stable while there was a slight decrease in applications received to review family tax benefit decisions made by Centrelink.

The types of decisions most commonly the subject of applications made in the reporting period were those rejecting a claim (41 per cent) and those about a debt (40 per cent), followed by decisions to cancel a payment (seven per cent), about the start date of a payment (five per cent) and about the rate of payment (five per cent). When applications finalised on the basis that the division could not review the decision are excluded, the number of applications lodged seeking review of one or more Centrelink decisions rejecting a claim increased by 45 per cent in 2018–19, while applications seeking review of one or more decisions about a debt increased by 16 per cent.

Despite the increase in lodgements, we were able to finalise close to the same number of applications we received, achieving a clearance rate of 96 per cent. We continued to finalise the applications in a timely manner with an average time from lodgement to finalisation of nine weeks.

The 13,491 applications finalised in 2018–19 related to 15,152 decisions made by Centrelink. As shown in Caseload overview, 2017–18 to 2018–19 – Social Services and Child Support Division in Appendix 4: Additional caseload statistics, we varied or set aside 19 per cent of these decisions in 2018–19 which is four percentage points lower than the rate in 2017–18. The Tribunal affirmed 45 per cent of the decisions. In relation to the remainder, almost a quarter of the decisions could not be reviewed, generally because internal review had not been undertaken, while the proportion of decisions in relation to which the application was withdrawn by the applicant or otherwise dismissed by the Tribunal remained steady and relatively low.

Centrelink caseload by key payment types, 2017–18 to 2018–19 ‘Age pension’, ‘Austudy payment’, ‘Carer allowance’, ‘Carer payment’, ‘Disability support pension’, ‘Family tax benefit’, ‘Newstart allowance’, ‘Parenting payment’, ‘Youth allowance’, and ‘Other’.

PAYMENT TYPE

LODGED

FINALISED

ON HAND

2017–18

2018–19

% change from 2017–18

2017–18

2018–19

% change from 2017–18

2017–18

2018–19

% change from 2017–18

Age pension

1,124

1,128

0%

1,384

1,080

-22%

178

226

27%

Austudy payment

285

453

59%

346

411

19%

41

83

102%

Carer allowance

254

285

12%

246

288

17%

51

48

-6%

Carer payment

471

557

18%

509

532

5%

95

119

25%

Disability support pension

3,610

5,348

48%

4,104

4,943

20%

708

1,113

57%

Family tax benefit

1,715

1,685

-2%

1,961

1,717

-12%

268

237

-12%

Newstart allowance

1,429

1,947

36%

1,602

1,925

20%

253

275

9%

Parenting payment

526

685

30%

669

661

-1%

97

121

25%

Youth allowance

787

1,065

35%

925

1,033

12%

129

161

25%

Other

712

938

32%

804

901

12%

92

136

48%

TOTAL

10,913

14,091

29%

12,550

13,491

7%

1,912

2,519

32%

Child support

Applications for review of decisions about child support comprised 14 per cent of all applications received by the division in 2018–19 with marginally fewer applications lodged in the reporting period than in 2017–18. The volume is similar to earlier years. Child support caseload by key decision types, 2017–18 to 2018–19 show the numbers of child support applications lodged and finalised in 2018–19 and the previous reporting period and the number of cases on hand at the end of each of those periods.

Child support caseload by key decision types, 2017–18 to 2018–19 ‘Care percentage decision’, ‘Change of assessment’, ‘Non-agency payment’, ‘Particulars of the assessment’, ‘Refusal of extension of time to object’ and ‘Other’.

DECISION TYPE

LODGED

FINALISED

ON HAND

2017–18

2018–19

% change from 2017–18

2017–18

2018–19

% change from 2017–18

2017–18

2018–19

% change from 2017–18

Care percentage decision

623

749

20%

660

703

7%

162

208

28%

Change of assessment

973

787

-19%

852

923

8%

452

317

-30%

Non-agency payment

124

143

15%

121

144

19%

44

43

-2%

Particulars of the assessment

234

257

10%

251

260

4%

54

51

-6%

Refusal of extension of time to object

171

152

-11%

189

137

-28%

26

41

58%

Other

203

191

-6%

226

189

-16%

31

43

39%

TOTAL

2,328

2,279

-2%

2,299

2,356

2%

769

703

-9%

While lower in number than in 2017–18 and earlier years, applications relating to requests to change an assessment of how much child support is payable continued to be the most common type of decision we review at 34 per cent of all lodgements. Applications seeking review of determinations about the percentage of time a parent or carer cares for a child have been increasing in recent years and represented a further third of the lodgements. There were modest variations in the volume of other types of reviewable decisions from the previous reporting year.

The division was able to finalise more child support applications than we received in the reporting year and achieved a lower average time from lodgement to finalisation compared with 2017–18, returning to the level of earlier years. In terms of the outcomes of finalised applications, the Tribunal varied or set aside the decision following a hearing in a third of applications, similar to the two previous reporting periods. The decision was changed in accordance with terms of agreement reached by the parties in a further three per cent of applications and the Tribunal affirmed the decision in 21 per cent of applications. Applications were otherwise finalised in a range of ways as shown in Caseload overview, 2017–18 to 2018–19 – Social Services and Child Support Division in Appendix 4: Additional caseload statistics and in proportions broadly consistent with 2017–18.

Paid parental leave

Applications for the review of decisions about paid parental leave increased somewhat in 2018–19 compared with the previous reporting period and were similar to the number of lodgements in 2016–17. With more lodgements, the number of applications finalised also increased. The average time to finalise applications in the reporting period was slightly higher than in 2017–18 but still lower than earlier years. The division finalised 250 applications relating to 253 decisions made by Centrelink, eight per cent of which were changed by the Tribunal and 49 per cent affirmed, similar to 2017–18. The AAT did not have power to review one-third of the decisions, a higher proportion than previously. Applications were otherwise withdrawn or dismissed by the Tribunal.

Caseload strategy

The division continued to employ and refine a range of case management measures to support effective and efficient review processes in 2018–19, particularly in light of the increased number of applications for review. As in previous years, there was a focus on using experienced senior staff to help parties understand the issues in the review, better prepare for hearing and, where appropriate, facilitate the earlier resolution of cases. Our early case assessment approach in various caseloads and other measures contributed to the reduction in the average length of time it took to finalise cases in the division.

In relation to Centrelink and paid parental leave decisions, triaging is undertaken to identify straightforward matters in some types of cases which are referred for outreach or for a fast track hearing. In the reporting period, approximately half of the applicants contacted during the outreach stage elected not to proceed with their application, having discussed their matter in full with a case assessment registrar. About a quarter of these cases were subsequently referred for a fast track hearing with the remaining quarter proceeding to a standard hearing. Overall, we finalised nine per cent of cases in the Centrelink jurisdiction using fast tracking.

Early case assessment conducted by a registrar was used in most child support change of assessment cases. It has proven effective in assisting parties to seek resolution by agreement without the need for a hearing. In other types of child support applications, directions hearings were conducted by a Tribunal member with the applicant and any other party in some cases to clarify the issues in dispute and determine whether the application could be resolved without a hearing. Approximately one-third of validly lodged child support applications were resolved without the need for a hearing. The remainder proceeded to hearing.

During the reporting period, the Tribunal delivered its decision and reasons for the decision orally at the end of a hearing in 15 per cent of all applications finalised in relation to Centrelink decisions, four per cent of child support finalisations and 30 per cent of paid parental leave finalisations. In addition to providing applicants and any other parties with a timely outcome and explanation for the Tribunal’s decision, this approach enables cases to be finalised more efficiently.

In anticipation of further growth in demand for our services, we will continue to build on these caseload strategies in the future.

Second review outcomes

A party who is dissatisfied with a decision made by the division to affirm, vary or set aside any Centrelink decision or select child support and paid parental leave decisions can apply to the AAT’s General Division for a second review. In addition to the 1,882 applications for second review of Centrelink decisions lodged in 2018–19, there were 88 applications about child support decisions and 12 about paid parental leave decisions.

Of the applications made in respect of Centrelink decisions, 42 were lodged by the Secretary of the Department responsible for administering the relevant legislation. The volume of Secretary appeals in this reporting period was significantly lower than the 80 applications received in 2017–18. In relation to the 59 Secretary appeals finalised in the reporting period, the division’s decision remained unchanged in 24 cases (41 per cent) with 20 applications withdrawn and the decision affirmed by the Tribunal following a hearing in four cases. The decision was changed in 35 applications (59 per cent), 23 by way of Tribunal decision after a hearing and 12 in accordance with terms of agreement reached by the parties, a slightly higher proportion than in the previous reporting year.

Information on the outcomes of all applications for second review of Centrelink decisions can be found in General Division in Appendix 4. Overall, the division’s decision was changed by way of a Tribunal decision following a hearing in only five per cent of cases finalised in the reporting period and in a slightly larger proportion of cases resolved by agreement between the parties. The number of child support and paid parental leave decisions varied or set aside on second review in 2018–19 remained low.

Decisions made on second review are reviewed by the division to identify whether the division has made an error. In the majority of cases, however, the division’s decision has been changed as a result of further information being made available that was not available at first review or the Tribunal on second review taking a different view of the evidence or the application of the law in the particular circumstances of the case.

Other decisions made by the division can be appealed to the courts: see the following section for information relating to these appeals.

Engagement

During 2018–19, the AAT engaged regularly with the Department of Human Services on a range of operational issues. These included legislative, procedural and workload issues and other matters that affect our work in the Centrelink and child support jurisdictions. We also liaised with Legal Aid NSW and Welfare Rights Centres in relation to matters arising in the division.