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The Administrative Review Tribunal (ART) plays a pivotal role in ensuring that the high volume of migration and refugee decisions made by the Department of Home Affairs (DHA) are reviewable by an independent body. Robust mechanisms for merits review are in the best interests of Australian society; they not only ensure high-quality and consistent administrative decision-making but also uphold the broader foundations of a healthy democracy, including natural justice, the rule of law, and open and accountable government.
Transparent and independent review mechanisms are also critical to the proper functioning of the migration system, allowing visa holders and applicants certainty regarding their rights and period of stay in Australia. Conversely, review mechanisms that circumscribed or that differentiate between applicants based on visa status are likely to undermine consistency in decision-making and ultimately prolong the uncertainty to which temporary visa holders are subject.
The present Bill purports to strike a balance between ‘efficiency and proportionality’ in the review process, aiming to ease the Tribunal’s caseload by introducing a bespoke ‘papers-only’ review stream for certain migration decisions (with stricter procedural rules), and by expanding the ART’s discretion to dispense with an oral hearing more generally.
The MWC is deeply concerned that the Bill will undermine the review rights of temporary visa-holders and applicants and normalise a culture of poor decision-making. We strongly oppose any reform that diminishes these rights. Most affected applicants will be onshore on Bridging visas when exercising their right of review at the Tribunal. Undermining their right to merits review will likely prolong the period that temporary migrants spend on Bridging visas, in turn increasing their vulnerability to labour exploitation. This risk is well-established in research; when visa status becomes even more uncertain, the likelihood of exploitation intensifies. This risk is further compounded by financial precarity, language and information barriers, and limited access to legal representation.
Recommendation 1: The Committee should recommend that the Bill should not be passed.
Recommendation 2: The Department of Home Affairs must be adequately resourced to ensure that migration decisions are made correctly at the earliest stage.
Recommendation 3: The Administrative Review Tribunal must be adequately resourced to provide full and fair merits review in all matters before it, wherever this is reasonable in the circumstances.
