The AAT’s operations are subject to external scrutiny through various mechanisms. The principal form of scrutiny in relation to how we conduct reviews and our decisions is by way of review in the courts. Our operations are also subject to scrutiny through requests made under the Freedom of Information Act, complaints to the Commonwealth Ombudsman and other bodies, audits and reviews, and parliamentary scrutiny.

Appeals

There are three primary pathways for review by the courts of our decisions.

• Section 44 of the Administrative Appeals Tribunal Act: a party may appeal, on a question of law, to the Federal Court against most final decisions made in the FOI, General, NDIS, Security, Small Business Taxation, Taxation and Commercial, and Veterans’ Appeals Division. Section 44 also applies to final child support decisions and employer-related paid parental leave decisions made in the Social Services and Child Support Division. The Federal Court may transfer the appeal to the Federal Circuit Court unless the Tribunal was constituted by, or included, the President or a Deputy President.
• Section 44AAA of the Administrative Appeals Tribunal Act: a party to a first review of a child support decision made in the Social Services and Child Support Division may also appeal such a decision, on a question of law, to the Federal Circuit Court unless the Tribunal was constituted by, or included, the President or a Deputy President.
• Part 8 of the Migration Act: an applicant or the Minister administering the Migration Act may seek judicial review of most AAT decisions relating to visas. Applications relating to decisions made in the Migration and Refugee Division must be lodged in the Federal Circuit Court. Applications relating to decisions made about visas on character-related grounds in the General Division must be lodged in the Federal Court.

A party may also seek judicial review of certain decisions made in the course of the review process and in respect of certain final decisions under the Administrative Decisions (Judicial Review) Act 1977, section 39B of the Judiciary Act 1903, or section 75(v) of the Constitution.

As shown in Court appeals lodged and finalised, 2017–18 to 2018–19 – By division, 4,102 appeals were lodged in 2018–19, 95 per cent of which were applications for judicial review of decisions made by the Migration and Refugee Division or the former MRT or RRT. The proportion of migration and refugee decisions that were appealed continued to be considerably higher than for our other divisions.

There were 2,820 appeals relating to decisions of the AAT, MRT or RRT finally determined in the courts during the reporting year. Overall, the Tribunal’s decision was set aside in 16 per cent of those appeals, seven percentage points fewer than in 2017–18. This amounted to only 2.3 per cent of all decisions made in 2017–18 that could have been appealed to the courts.

More information on appeals lodged and determined during the reporting year by major areas of work within divisions is available in Court appeals lodged and finalised against decisions of the AAT – By division and major areas of work within divisions, 2018–19.

Significant court decisions

During the reporting year, a small number of judicial decisions had, or dealt with issues that had the potential to have, a significant impact on our procedures and decision-making.

Bautista v Minister for Immigration and Border Protection [2018] FCA 1114

This judgment concerned the validity of the prescribed further period for responding to an invitation to comment on or respond to adverse information in certain migration cases in the Migration and Refugee Division. The AAT sent the appellant an invitation under section 359A of the Migration Act to comment on or respond to adverse information that it considered would be part of the reason for affirming the decision under review. Under the Act, an applicant loses their entitlement to a hearing and the AAT has no power to conduct a hearing if comments or a response are not provided within the period prescribed by the Migration Regulations or as extended under section 359B(4) for the prescribed further period under the Regulations. In response to a request from the appellant, the AAT extended the period for comment or response for the prescribed further period. Regulation 4.18A(4) provided that the prescribed further period commences when the person receives notice of the extension and, in general, ends at the end of 14 days after that day. The appellant provided her response the day after the prescribed further period ended and the AAT proceeded to make a decision without a hearing.

The Federal Court held that regulation 4.18A(4) was inconsistent with section 359B(4) of the Act and was invalid as it potentially created arbitrary results. Depending on when an applicant applies to the Tribunal for more time, the terms of regulation 4.18A(4) could have the result that the ‘prescribed further period’ granted by the Tribunal would be, in a practical sense, meaningless. As there was no longer a valid ‘prescribed further period’ under the Regulations, the Court concluded that the AAT’s power to extend time to respond to an invitation was at the AAT’s discretion. The case was remitted to the AAT.

The reasoning on the invalidity of regulation 4.18A(4) appears equally applicable to similarly worded provisions for extensions for prescribed further periods for responding to invitations in other migration cases and in refugee cases. The AAT must decide the appropriate length of any extension.

Beni v Minister for Immigration and Border Protection [2018] FCAFC 228

In this judgment, a Full Court of the Federal Court considered whether the AAT’s Migration and Refugee Division has the power under the Administrative Appeals Tribunal Act to extend the prescribed period for applying for a review set out in the Migration Act or Regulations. A single judge of the Federal Court held in Brown v Minister for Home Affairs (No. 2) [2018] FCA 1787 that this power was available. The Full Court held that sections 29(7) and (8) of the Administrative Appeals Tribunal Act, which permit the AAT to extend the time to apply for a review if satisfied that it is reasonable to do so, do not apply to a proceeding in the Migration and Refugee Division because of the operation of section 24Z of the Administrative Appeals Tribunal Act. That section provides that Part IV of the Administrative Appeals Tribunal Act, which includes section 29, does not apply in relation to a proceeding in the Migration and Refugee Division. The Full Court concluded that Brown was wrongly decided and should not be followed.

Commonwealth of Australia v Snell [2019] FCAFC 57

This judgment considered whether issue estoppel applies when the AAT reviews a decision under the Seafarers Rehabilitation and Compensation Act 1992. In the course of reviewing a decision about the claimant’s entitlement to ongoing payments of compensation, the Tribunal declined to consider new expert evidence presented by the Commonwealth on the basis that his present condition was the same as, or derived from, a disease in relation to which the Commonwealth had previously accepted liability as reflected in a consent decision made by the Tribunal in 2013. The Tribunal found that it could not reconsider the issues dealt with in the earlier decision.

A Full Court of the Federal Court held that the Tribunal erred by concluding that the evidence it may consider was constrained by reason of an earlier decision on the same issue. No principle of issue estoppel or other procedural rule taken from judicial or quasi-judicial contexts, the purpose of which are the determination of matters finally, should restrict what is to be drawn from the statute governing the decision-making. The Seafarers Rehabilitation and Compensation Act provides for a progressive and evolving decision-making process with ongoing review of a person’s entitlements including, where appropriate, the reconsideration of earlier determinations. The Court considered that, in these circumstances, it would be wrong for the Tribunal to prevent the consideration of factual matters relevant to the making of the preferable decision that is under review. The case was remitted to the AAT.

The reasoning appears to be applicable to workers’ compensation cases generally and other areas of the AAT’s jurisdiction with similar legislative frameworks.

DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64

In this judgment, a Full Court of the Federal Court considered whether the notification of a decision to refuse to grant a visa by the then Department of Immigration and Border Protection met the requirements of section 66(2)(d)(ii) of the Migration Act which provides that, if the visa applicant has a right to have the decision reviewed by the AAT, the notification must state the time in which the application for review may be made. If there is no valid notification, the prescribed time period for applying for merits review by the AAT does not start to run.

The Minister’s delegate sent a letter to the appellant informing her that her protection visa had been refused. The letter contained standard form wording about review rights under various headings and on different pages. The Court held that the information in the letter about the timeframe for making an application for review was piecemeal and obscure and did not ‘state’ the matter specified in section 66(2)(d)(ii). It held the word ‘state’ means that the notification must set out the required information in a way which is not only complete, but clear as well. Consequently the prescribed period for applying for review had not commenced and the application for review by the AAT was not out of time.

This judgment affected other cases before the AAT and the courts in which the same wording was used in relation to the time to apply for a review.

Frugtniet v Australian Securities and Investments Commission [2019] HCA 16

This judgment considered whether the AAT may take into account on review a consideration which the primary decision-maker must not take into account when making the decision. It related to a banning order made by the Australian Securities and Investments Commission (ASIC) under section 80(1) of the National Consumer Credit Protection Act 2009. The banning order was made on the basis that the appellant was not a fit and proper person to engage in credit activities and prohibited him from engaging in those activities. In affirming ASIC’s decision, the Tribunal had taken into account the appellant’s spent convictions.

The High Court held that the Tribunal erred by taking into account the spent convictions. Except where altered by statute, the jurisdiction conferred on the AAT is to stand in the shoes of the decision-maker and exercise the same power conferred on the primary decision-maker. The Tribunal was subject to the same constraints as ASIC, and the spent convictions could not be taken into account. The case was remitted to the AAT.

Russell v Minister for Home Affairs [2019] FCAFC 110

This judgement considered when an application sent by email is lodged with the AAT. The Tribunal found it did not have jurisdiction to consider the appellant’s application for review of a decision because it had not been lodged within the nine-day time limit. The appellant had sent the application to the Tribunal by email within the nine days, but it had not been received because the electronic file was too big. A non-delivery message was sent but the appellant discovered this after the nine-day period had ended.

A Full Court of the Federal Court considered that the crucial issue was the time the message became capable of being retrieved at the electronic address designated by the AAT. Although the appellant’s email was correctly addressed, it was never received at that address. The Court also considered whether section 14A of the Electronic Transactions Act 1999 operated so that an email becomes capable of being retrieved when it comes within the “information system” of the recipient organisation. However, the Court decided that the relevant legislation required actual receipt of the email at the electronic address specified by the AAT which is more than merely coming within the AAT’s information system. In this case, the fact of non-delivery within the review period was fatal to the application.

Freedom of information

In 2018–19, the Office of the Australian Information Commissioner notified the AAT of two applications for review of decisions we made in relation to requests for access to documents under the Freedom of Information Act. Two applications were finalised during the reporting year. In both applications, a decision was made not to undertake the review under section 54W(a)(i) of the Act. No decisions were made that have had, or may have, a significant effect on our operations.

Information Publication Scheme

Agencies subject to the FOI Act are required to publish information to the public as part of the Information Publication Scheme. This requirement is in Part II of the Act and has replaced the former requirement to publish a section 8 statement in an annual report. Each agency must display on its website a plan showing what information it publishes in accordance with the IPS requirements. The AAT’s plan is on our website.

Complaints to external bodies

The Australian Human Rights Commission did not notify the AAT of any complaints in 2018–19.

The Commonwealth Ombudsman received 79 approaches concerning the AAT during the reporting year. The Ombudsman finalised 79 approaches within the reporting year and no investigations were conducted.

The Office of the Australian Information Commissioner received four privacy complaints relating to the AAT in 2018–19 and finalised four complaints. No investigations were conducted.

Reports on the operations of the AAT

The AAT’s operations were not the subject of any report by the Auditor-General or the Commonwealth Ombudsman in 2018–19.

The statutory review of the amalgamated AAT, required under section 4 of the Tribunals Amalgamation Act 2015 was carried out during the reporting period by the Honourable Ian Callinan AC. The Attorney-General released the terms of reference for the review on 27 July 2018. The AAT made a submission to the review, participated in meetings with the reviewer and provided further written information on areas of interest. The Attorney-General tabled the report of the review in Parliament on 23 July 2019. The AAT is considering the report in detail and will work with Government in relation to developing its response to the report.

On 21 February 2019, the Joint Standing Committee on Migration tabled The report of the inquiry into review processes associated with visa cancellations made on criminal grounds. The Committee made a number of comments on the AAT’s processes for dealing with these cases, including that the AAT’s process is designed to be accessible and navigable for unrepresented applicants, the AAT generally hears reviews quickly and efficiently, AAT members conduct the reviews with close consideration of the legislation, regulations and ministerial directions and decisions published by the AAT are detailed, suggesting that due care and attention is being applied to weighing up the considerations to make the decision in each case. The report included one recommendation relating to the review process which is for the Australian Government to regulate to guarantee that victims of crime, or their families, are provided with an opportunity to make a written or oral statement as part of the review process.