In their 2018-19 annual report, the figures show the continued strain on the Administrative Appeals Tribunal’s (AAT’s) Migration and Refugee Division with a 34 per cent increase from the previous year in on hand applications, which are applications lodged and awaiting a decision. There was a total of 59,718 on hand applications as of 30 June 2019 despite the total number of applications lodged down 5 per cent.

The AAT plays an integral function in administrative law as it is the merits review authority for decisions made by many different government departments, including matters relating to child support, taxation, social security, freedom of information, the National Disability Insurance Scheme, and veterans’ entitlements. Many have their own divisions along with a General Division.

Without a doubt, the largest division of the AAT is the Migration and Refugee Division, whose members assess review applications for refused Australian visas and other applications under the Migration Act 1958 (Cth), such as refused sponsor and nomination applications, and reviews of visa cancellations. Of the 60,595 review applications made to the AAT in the last financial year, 59.69 per cent of these were for refused Australian visas. Within the Migration and Refugee Division but as a separate office is the Immigration Assessment Authority (IAA), which conducts fast-track review decisions of refused protection visa applications of unauthorised maritime arrivals who came to Australia between a certain period, among other requirements. Related but not included in this division are review applications for Australian citizenship, and Australian passports.

The statistics for the Migration and Refugee Division are further divided into refugee and migration (non-refugee) applications. Migration applications accounted for 71 per cent of lodgements, with visa refusals forming 76 per cent of the caseload, nomination and sponsorship refusals for 19 per cent, and review of visa cancellations for 5 per cent.

While the number of finalised migration cases increased by 34 per cent from the previous year, primarily due to more members being appointed, the number of on hand migration cases increased 30 per cent. Refugee cases did not fare much better with an increase of 43 per cent of on hand applications.

Of the type of applications lodged, temporary and permanent business, skilled and work visas including related sponsor and nomination applications accounted for almost half of all migration applications lodged, with student visa refusals and cancellations making up around a quarter, and partner visa refusals next with 13 per cent. While these percentages are not proportional to the number of their visa applications lodged, there are many factors as to why this is the case, including the reasons for the refusal, and perhaps most importantly where the visa applicant is and if they can even validly lodge a review application.

The AAT cannot assess any visa refusal and must be authorised in the Migration Act on whether an application made to the AAT is one that can be reviewed. As with applications that are lodged outside the strict time limits provided in the legislation, applications that are not able to be reviewed will be determined to be outside the AAT’s jurisdiction and therefore the decision must stand. Eight per cent of migration cases (1,336 applications) were finalised as no jurisdiction cases.

It should also be noted that the AAT is implementing caseload strategies, including:

• Triaging cases to ensure the most appropriate assessment pathways;

• Batching cases together where there are similar issues or features;

• Sending early requests for additional information to determine whether cases could be determined “on the papers”, meaning a hearing is not required.

Applications that have been made solely for the applicant to remain in Australia and vexatious applications where grounds for refusal clearly cannot be rectified are likely to be brought forward and constituted earlier than the average 68 weeks to finalise migration cases. On that note, while the number of withdrawn migration applications is relatively high at 22 per cent of all outcomes, it should not be assumed that any or most were lodged without merit. There can be many legitimate reasons to withdraw an existing review application including another visa application (even of the same subclass) was lodged and approved, that professional advice was given that it has a low chance of success, or that circumstances have warranted that the application is withdrawn, such as a student finishing their qualification before a hearing was constituted.

These disclaimers should also apply to the 35 per cent of decisions affirmed and 30 per cent of decisions varied, remitted or set aside, as circumstances between lodging and the decision could be either to the benefit or to the detriment of the review applicant.

The success of a legally sound decision made by the AAT is, however, remarkably clear. Only 2.6 per cent of all migration AAT decisions were allowed by a federal court, which is almost twice as good as the AAT’s target of 5 per cent. What this means is that the chance of success in a further appeal to the federal courts is very low.

What many (especially self-represented) judicial review applicants fail to understand is that a court only reviews the legality of the decision. This includes that the decision-maker had the power to make the decision, that it was made free from bias and without an error of law. Failing to consider a relevant matter or conversely considering an irrelevant matter are just two examples. It does not look at whether the decision was the preferable one. Additionally, even if a review applicant is successful, they may find that when the application is remitted and reassessed by the AAT, as a court cannot make a decision on their behalf, the subsequent decision and grounds are the same as before.

Of course, it is always best to never be before the AAT in the first place. Those unfortunate enough to find themselves with a visa refused, will want to carefully consider their options, if any, and whether there is a more suitable alternative.