AAT slowdown: Non-refugee on-hand migration cases up 71 per cent in 9 months

It seems the Administrative Appeals Tribunal (AAT) is bursting at the seams. Information provided by the AAT show that their Migration and Refugee Division is not coping well with the influx of appeals from refused visa applications decided by the Department of Home Affairs (DHA).

While the programme year has not yet finished, caseload statistics to the end of April 2018 shows just how stretched the AAT is with migration cases. Migration cases in this article refer to non-refugee cases, also known as the Migration Division, although the Refugee Division is also suffering.

As of the end of April 2018, there were 27,492 active migration cases, compared with 16,092 at the end of June 2017. This represents a startling 71 per cent increase in cases yet to be decided.

The issue appears to be one of slower decision-making and a lack of resources. The clearance rate for migration cases is a paltry 46 per cent compared to last year’s 74 per cent. Additionally, the number of appeal applications lodged have exceeded the previous year on a month by month basis. With two months of data still remaining, the number of applications received is already 2,803 more than the previous year.

What should be concerning is time. Excessive delay at the AAT may doom a visa applicant. I especially refer to the 2,012 undecided "Temporary work" applications. These visas are not broken down into subclasses, however, they most likely consist of primarily review applications for refused Subclass 457 – Temporary Skilled visas and will invariably be overtaken by refused Subclass 482 – Temporary Skill Shortage visas in the coming months and years. They may also consist of other ‘400 series’ temporary work visas, including:

• Subclass 400 – Temporary Work (Short Stay Specialist) visas,
• Subclass 403 – Temporary Work (International Relations) visas,
• Subclass 407 – Training visas, and
• Subclass 408 – Temporary Activity visas.

It is problematic when visas require a valid nomination because some nominations are valid for only so long. For many temporary work visas such as 482 and 407 visas, an approved nomination is only valid for a maximum of 12 months, and in some circumstances, shorter than that.

What this means is that if an AAT application for one of these visas is not approved within the window of a valid nomination, even if the appeal is decided in the applicant’s favour, it will be a hollow victory. The importance of this for 482 visas cannot be overstated. This is because the wording of 482 regulations refer to a specific nomination application, which is always identified by a unique transaction reference number, and cannot refer to any other nomination even if it identifies the 482 visa applicant.

Currently, only 54 per cent of temporary work visas are decided within the important 365 calendar day timeframe. Even so, some decisions remit the application back to the DHA for further consideration, meaning further delays.

If a 482 nomination expires before the corresponding visa is approved, the only recourse is to lodge a new nomination and visa application and meet the criteria all again. It almost seems beneficial in some cases to have the nomination also refused because at least the 12-month clock will not begin until it has been approved.

Fortunately, for review applications for 457 visas, they are subject to some beneficial transitional arrangements that allow the usual 12-month window to not apply if they had applied to the AAT within 12 months of the nomination being approved. This is in addition to the strict time limits requiring lodgement of applications to the AAT after a visa application is refused.

Processing times of the AAT, and the mechanics of visa regulations, are just a couple of factor to consider when faced with a visa refusal. There are many others.