Peter Dutton home affairs national security
Home Affairs Minister Peter Dutton

Is the Administrative Appeals Tribunal really increasing the rate at which it overturns visa decisions made by the Department of Immigration?

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The Australian reports today that a Palestinian man, known as Mr Khalil, had his application for an Australian visa rejected by the Immigration Department and then overturned by the Administrative Appeals Tribunal, which ruled that although the man had lied about “serious convictions” in the Israeli military court system, it would be better for his child and his Australian wife if he were allowed to stay in Australia on a partner visa.

The AAT decision by deputy president James Constance also took into account concerns about the fairness of the Israeli military courts, which have an almost 100% conviction rate.

Rates of AAT intervention

Moving past the case itself, the Oz reports that the AAT’s Migrant and Refugee Division set aside, remitted or varied 29% of the decisions brought to it after being challenged by the applicant in the 2014-15 financial year, followed by rates of 32% in 2015-16 and 31% in the 2016-17 year.

This suggests that the rate at which these decisions are being overturned is increasing, but research by Crikey shows the rate of cases set aside is actually lower than many previous years in the past decade, including those under Labor governments.

Why does this matter?

The Administrative Appeals Tribunal has been under attack from Immigration Minister Peter Dutton this year, with a number of decisions making headlines in the News Corp papers. The minister has the power to overturn AAT decisions, and under new citizenship legislation currently before the Senate (but unlikely to pass) Dutton would have the same veto power over citizenship decisions.

Do the claims stack up?

In 2013-14, the then Migration Review Tribunal and Refugee Review Tribunal together set aside 7098 out of 24,729 cases — a rate of 28%. In 2012-13, the rate of cases set aside was 30.42% (5886 out of 19,347). In 2011-12, the rate was 34%, in 2010-11, 37% and in 2009-10 it was as high as 40%.

In 2007-08, the Migration Review Tribunal alone set aside 50% of the 6325 cases it heard, and the Refugee Review Tribunal set aside 18% of the cases it heard. In 2008-09 the rate of cases set aside by both tribunals together was 40%.

Immigration Minister Peter Dutton has been in the job since 2015, with fellow Liberal Scott Morrison in the job from 2013 until he got promoted to treasurer under the reshuffle brought in by PM Malcolm Turnbull. There were four immigration ministers under Labor from 2007 until 2013. Chris Evans served in role from 2007 until 2010, with Chris Bowen from 2010 to 2013 and Brendan O’Connor and Tony Burke both in the role for just months each in 2013. The height of cases set aside was under Evans.

As Crikey has previously reported, the AAT’s migration caseload increased by 31% in the past financial year up until April 2017 and an 89% increase in refugee cases in the same timeframe. The AAT’s 2015-16 financial report said that wait times were blowing out because of a decrease in members of the tribunal. The government has moved to replace members of the tribunal appointed by Labor, and many appointees have been ex-Liberal staffers or candidates.