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Performance

Caseload information

As shown in IAA caseload overview, 2019–20 to 2020–21, the number of referrals to the IAA was significantly lower in 2020-21 than in 2019-20. The IAA received an average of 75 referrals per month in 2020–21, a 49% decrease compared with the previous year. This reduction in referrals was a result of the impacts of COVID-19.

IAA caseload overview, 2019–20 to 2020–21

REFERRALS

FINALISATIONS

ON HAND AT
YEAR END

MEDIAN TIME TO FINALISE (WEEKS)

2019–20

1,745

1,731

106

5

2020–21

894

788

212

5

The top 5 countries of reference of referred applicants in 2020–21 were Sri Lanka, Iran, Pakistan, Bangladesh and Afghanistan. The chart below shows the number and proportion of referrals made for these and all other countries. Sri Lanka remained the largest single source country of referrals overall and increased its proportion of the IAA’s caseload. Referrals from Iran also increased proportionately, while the number of referrals from Pakistan decreased during this period.

IAA referrals by country of reference, 2020–21 Pie chart of IAA referrals by country of reference, 2020–21

The IAA finalised 788 cases in 2020–21. The were 212 cases on hand at 30 June 2021 which had a median age of 15 days from referral. The IAA maintained the median 5 weeks from referral to decision for the reporting period as was reported for the previous year.

The IAA affirmed the decision under review in 717 cases during the 2020-21 period. The decision was remitted to the Department for reconsideration in 55 cases. Sixteen cases were finalised on the basis that they were referred to the IAA in error.

Outcomes of IAA reviews, 2019–20 to 2020–21

DECISION AFFIRMED

DECISION REMITTED

OTHERa

No

% of total

No

% of total

No

% of total

2019–20

1,625

94%

96

6%

10

1%

2020-21

717

91%

55

7%

16

2%

a Cases referred to the IAA in error.

The IAA may publish written statements of reasons for its decisions that the President thinks are of particular interest. The IAA published 115 decisions made in 2020-21 on the IAA website.

Appeals

An applicant or the Minister may seek judicial review of decisions made by the IAA under Part 8 of the Migration Act. Applications must be made to the Federal Circuit and Family Court and decisions may be subject to further appeal. As shown in the table below, a significant proportion of IAA decisions are subject to judicial review. In the reporting period, all initial applications were lodged by applicants who did not receive a favourable decision.

During the reporting year, the Federal Circuit and Family Court finalised 496 judicial review applications relating to IAA decisions. Of those applications, 379 were dismissed and a further 3 set aside the decision under review. In 114 applications, the case was remitted to the IAA: 54 by consent and 60 by judgment. There have been 166 further appeals lodged against decisions of the Federal Circuit Court, including 33 to the Federal Court and one to the High Court. Of these appeals, 6 were lodged by the Minister and the remaining 160 were by applicants appealing a decision to dismiss the judicial review application.

The table below shows the outcomes of judicial review applications that have been finally determined in the last 2 financial years. As at 30 June 2021, a further 4,555 applications remain unresolved, including appeals against decisions of the Federal Circuit and Family Court.

IAA court appeals lodged and finalised, 2019–20 to 2020–21

COURT APPEALS LODGED

COURT APPEALS FINALISEDc

Lodgeda

Proportion of total IAA decisionsb

Allowed

Dismissed or Discontinued

Total appeals finalised

Remitted

Set asided

No

%

No

No

No

No

2019–20e

1,407

81.3%

255

7

578

840

2020–21

688

87.3%

155

3

365

523

TOTAL

2,095

83.2%

410

10

943

1,363

a These figures include some appeals lodged in relation to decisions made in a previous year.

b These figures represent the number of appeals lodged in each period as a proportion of all IAA decisions made in that reporting year that could have been appealed to the courts.

c Where a decision of a judge of the Federal Circuit and Family Court, a single judge of the Federal Court or the Full Court of the Federal Court has been appealed, only the ultimate result is counted for the purpose of these statistics.

d These figures relate to cases where the courts have determined the IAA had no jurisdiction to conduct the review following the judgment in DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178.

e The figures for the number of appeals lodged and finalised in 2019–20 differ from those published in the Annual Report 2019–20. The IAA was notified of additional appeals lodged in the Federal Circuit Court after the figures were prepared for that report, and a number of appeals considered finalised at that time have subsequently become active by an appeal to a higher court.

Significant court decisions

During the reporting year, 3 decisions of the High Court had, or dealt with issues relevant to fast track procedures and decision-making.

AUS17 v Minister for Immigration and Border Protection [2020] HCA 37

In this case the High Court considered the operation of section 473DD of the Migration Act which prohibits the IAA from considering ‘new information’ unless it is satisfied that there are exceptional circumstances to justify considering the information (subparagraph 473DD(a)), and the applicant satisfies the IAA that the information was not, and could not have been, provided to the Minister before the Minister made the decision (sub subparagraph 473DD(b)(i)) or that it is "credible personal information" which was not previously known and, had it been known, may have affected the consideration of the applicant's claims (sub subparagraph 473DD(b)(ii)). In addressing new information provided by the applicant, the IAA had found that sub subparagraph 473DD(b)(i) was met but that there were no exceptional circumstances to justify considering the information. The issue on appeal was whether, in finding that the information could not be considered, the IAA had misapplied section 473DD.

Allowing the appeal, the High Court held that section 473DD requires the IAA to assess new information against the criteria in both sub subparagraphs 473DD(b)(i) and (b)(ii), and then, if at least one of those criteria is met, take that assessment into account in its consideration of whether there are exceptional circumstances under subparagraph 473DD(a), before concluding that it is prohibited from considering the new information.

The judgment restores the position established in an earlier decision of the Federal Court and effectively overruled a subsequent line of authority of the Full Federal Court of Australia.

ABT17 v Minister for Immigration and Border Protection [2020] HCA 34

The issue in this appeal was whether it was legally unreasonable for the IAA, in its review of a decision of the Minister’s delegate, to depart from the delegate’s favourable assessment of the applicant’s credibility without inviting him to an interview. The applicant had appeared before the delegate at an interview that was audio recorded. Based in part on his demeanour, the delegate found that his evidence during the interview was plausible; on review however, after reviewing the audio recording of the interview, the IAA did not accept the applicant’s account of events.

The High Court unanimously held that in the circumstances of this case it was legally unreasonable for the IAA to depart from the delegate's assessment of the applicant’s credibility. The plurality held that the legal unreasonableness arose from the IAA having departed from the delegate's assessment without exercising its power under section 473DC of the Migration Act to invite the applicant to an interview so as to place itself in as good a position as the delegate to assess his credibility. In contrast to the remaining judges, the plurality held that the IAA’s impression of the applicant’s appearance during such an interview would constitute ‘new information’ within the meaning of section 473DC of the Act.

The judgment illustrates the kinds of circumstance where the IAA may need to consider its subsection 473DC(3) discretion to obtain new information, highlighting the potential significance where an ‘informational gap’ arises between the information before the delegate and that which is before the IAA.

Minister for Home Affairs v DUA16; Minister for Home Affairs v CHK16 [2020] HCA 46

In each of these cases the applicant’s migration agent had acted fraudulently by providing the IAA with pro forma submissions and concealing that fact. In DUA16’s case the submissions referred to some of the applicant’s personal circumstances but also contained information relating to a different person. In CHK16’s case the entirety of the personal details in the submission related to another person. In each case the IAA was unaware of the fraud but aware that the submissions contained information relating to another person and disregarded that information. The issue was whether the IAA’s decision was vitiated by the fraud, and whether it was unreasonable for the IAA not to exercise its power to obtain corrected submissions. The High Court allowed the Minister’s appeal in DUA16 and dismissed the appeal in CHK16. In each case the Court held that the IAA’s decision was not vitiated by fraud as it had not been shown that the fraud had affected the IAA’s statutory duty, function or power. However, in what it described as the extreme circumstances in CHK16’s case, the Court held that it was legally unreasonable in that case to have failed to request submissions pursuant to section 473DC of the Migration Act, knowing that CHK16 intended to provide submissions, that those submissions might contain new information, and that the submissions provided concerned the personal circumstances of another individual entirely.

Complaints

Complaints may be made verbally or in writing. The IAA encourages staff to address any issues or concerns raised by applicants or their representatives at the time of interaction where possible. In circumstances where an issue cannot be readily resolved, the person is advised that they may make a written complaint.

During the reporting year, the IAA received one complaint relating to conduct of an interview. The IAA assessed the complaint and provided a written response. While the complaint was not upheld, steps have been taken to review the procedures for the sharing of documents during interviews in a
COVID-19 safe environment.