Migration lawyers have expressed concerns about an admission from the Administrative Appeals Tribunal (AAT) that it is under-resourced to deal with its backlog of tens of thousands of migration and refugee cases.
The confession made in the tribunal’s came even as the overall caseload of migration-related appeals declined in 2020-21 due to the impact of COVID-19 border closures.
The AAT is responsible for reviewing certain visa decisions made by the Department of Home Affairs or government ministers, and is considered a crucial appeals process for migrants and refugees.
A disruption to visa processing and applications saw the backlog of migration and asylum seeker cases fall from a peak of 63,305 in June 2020 to 56,036 in June 2021.
But despite the decline, the tribunal’s caseload of asylum seeker cases has continued to increase and is now outstripping the general migration cohort by more than 8,000 cases.
AAT president David Thomas conceded the tribunal is "not sufficiently resourced to substantially reduce'' its backlog of cases in its latest annual report released last month.
"We are not sufficiently resourced to substantially reduce our significant on hand caseload," he wrote.
“The number of cases on hand at the end of the reporting period continues to be an issue to be addressed.”
Migration and refugee cases make up approximately 86 per cent of the tribunal’s caseload, which also handles appeals on issues ranging from disability support to pensions and unemployment benefits.
The federal government says it provided an additional $54.8 million over the forward estimates in the May budget to address the backlog of cases in the tribunal's Migration and Refugee Division.
But applicants appealing negative decisions continue to face severe delays in having their cases heard with only 20 per cent completed within 12 months in 2020-21.
This figure is down from 28 per cent in 2019-2020.
Migrants and refugees stuck in limbo
Migration lawyer Sanmati Verma told SBS News the backlog of cases posed significant consequences for migrants left in limbo - often on bridging visas - while their cases were unresolved.
“The longer that you spend with a case at the tribunal the more your precarious visa status is extended and the more uncertainty you have about your future,” she told SBS News.
“This is a problem, which is squarely in the federal government’s lap [to address].”
The impact of COVID border closures saw the number of general migration cases before the inquiry decline from 36,205 in 2019-20 to 23,972 in 2020-21.
But alongside this, the number of refugee cases before the tribunal has continued to grow from 27,100 in 2019-20 to 32,064 in 2020-21.
Before the period, the number of refugee applications had already far outweighed the number of migration cases.
It's understood a decision to defer more complex cases relating to protection visa decisions until these reviews could be held in person because COVID-19 has contributed to the increasing disparity.
Refugee Advice and Casework Service (RACS) centre director and principal solicitor Sarah Dale said some applicants were being forced to wait between two to four years for their appeals.
“It’s deeply concerning that the AAT is not sufficiently resourced to process and hear the volume of cases that they have before them,” she told SBS News.
“It’s entirely inappropriate for people to wait years and years for an outcome. We need to ensure that people’s rights are protected and their rights are afforded.”
Analyst says government must take delays 'seriously'
Justice Thomas indicated “without additional member and staff resources it will be difficult” to continue the trend of reducing the backlog “given an anticipated increase in lodgement in 2021-22”.
He wrote that the body will continue to engage with the government about additional member appoints, increasing staffing levels and “appropriate funding.”
Abul Rizvi, a former deputy secretary of the immigration department, agreed the strain on the AAT’s caseload would only intensify once international travel to Australia reopens.
“It’s delays and overwhelming workload - it screams out at you from the numbers,” he told SBS News.
“Those factors undermine the efficiency and the integrity of the visa system - the fact that the government is not taking that seriously is very disappointing.”
A spokesman for Attorney-General Michaelia Cash said "the government continues to carefully monitor the resourcing of the AAT."
He said as part of the government's budget package "the AAT received an additional $18.9 million over the forward estimates."
"The additional funding will support the Migration and Refugee Division to deal with 2,000 additional cases each year," he said.
The spokesman also said the attorney-general’s department is working with the AAT and the Department of Home Affairs in relation to additional AAT member needs.
Senate to investigate 'performance and integrity' of AAT
The Administrative Appeals Tribunal is composed of members appointed by the federal government to oversee cases before the tribunal - regardless of their legal background.
The appointment of a raft of Liberal Party-linked members has prompted scrutiny of the process, as well as criticism that some members were failing to meet performance benchmarks.
Labor Senator Kim Carr has claimed at least 79 former Liberal Party politicians, candidates, staffers and associates had become members of the tribunal over the past eight years.
Migration lawyer Carina Ford said she believes addressing the backlog of cases before the tribunal could be aided by giving the body greater control over the appointment of members.
“There just needs to be a better and more transparent process in place that would actually make a massive difference,” she said.
A Senate review launched last month into the "performance and integrity" of the appeals process will hand down the findings of its inquiry in March next year.
