Administrative Appeals Tribunal Research Articles

Administrative Review in Refugee Cases: The Vulnerable Persons Guidelines and the Role of Legal Representatives

In this article, we examine how the vulnerability of asylum seekers informs the refugee status determination process in Australia, focussing on administrative review. As vulnerability is not defined under Australian migration law, we turn to international law to explore its meaning and its relationship with international non- refoulement obligations. We then examine the Administrative Appeals Tribunal’s (‘AAT’) Guidelines on Vulnerable Persons and, following a systematic review of published AAT decisions between 2015 and 2022, explore its impact on decision-making. This analysis shows that identifying a person as ‘vulnerable’ can have significant procedural and substantive implications for the review process. With a significant backlog of protection visa cases at the AAT and the imminent establishment of the new Administrative Review Tribunal, finally, we consider the role of legal representatives in complex cases involving vulnerable persons.

Tipping the (Im)balance: Risk, Rehabilitation and Membership in Administrative Appeals Tribunal Decision Making for Convicted New Zealander Long Term Residents of Australia

New Zealanders are currently the largest nationality group of people deported from Australia. When a non-citizen has their visa cancelled on character grounds under Section 501 of the Migration Act (Cth) by a delegate of the Immigration Minister, they have the opportunity to appeal at the Administrative Appeals Tribunal (AAT). AAT Members (decision makers) decide the fate of the applicant by weighing up the perceived risk of the individual to community safety against a series of mitigating factors that relate to the life the applicant has established in Australia. As a site of investigation into s501 visa cancellation decision making practice, this paper quantitatively and qualitatively examines a set of AAT visa cancellation decisions from 2015–2018 under Ministerial Direction No. 65, for 97 New Zealander long term residents. It focuses on how AAT decision makers considered and valued mitigating factors in a decision making process that is inherently imbalanced toward constructing non-citizens as a risk. Our analysis reveals that of all mitigating factors considered, evidence of rehabilitation and legal representation at the AAT hearing are associated with reduced perceptions of risk. When comparing two AAT decisions that are matched on all relevant factors but have different decision outcomes, we find that even where mitigating factors for reducing perceptions of risk are present, potential for inconsistencies in AAT decision making remains.

‘Fully Diagnosed, Fully Stabilised and Fully Treated’: Succeeding in a Claim for a Disability Support Pension in Australia for Endometriosis and Chronic Pelvic Pain

In 2019, Ms Natasha Thomson won an application for a disability support pension (DSP) under the Social Security Act 1991 (Cth) before the Australian Administrative Appeals Tribunal (AAT). Ms Thomson was taken to the AAT by the Department of Social Security when it appealed a decision of the AAT’s Social Services and Child Support Division. Ms Thomson is the only applicant with chronic pelvic pain and likely endometriosis that has succeeded in her claim for a DSP before the Tribunal since 2005. Endometriosis is an inflammatory condition characterised by endometrial-like tissue growing outside the uterus, which can result in pain and adhesions. It commonly grows on the pelvic organs and peritoneum but has been found in other parts of the body, such as the lungs, diaphragm, kidney and navel. There is no cure at present. Long-term management is required using medical and/or surgical treatment, both of which focus on alleviating symptoms. In this article, I consider the AAT’s determinations and set out what applicants, their legal representatives and their treating doctors can learn from the cases on applicants for a DSP with endometriosis and chronic pelvic pain.

Tribunal Justice and Politics in Australia: The Rise and Fall of the Administrative Appeals Tribunal

Tribunal Justice and Politics in Australia: The Rise and Fall of the Administrative Appeals Tribunal

Citizens or consumers? Seeking personhood through ‘personalised’ care in the National Disability Insurance Scheme

AbstractNational Disability Insurance Scheme (NDIS) funding rules determine who can access which supports. However, what is less frequently acknowledged, is that those rules produce an assumed model of personhood. Arguably, this becomes most evident when a case for funding reaches the Administrative Appeals Tribunal, where disputes are resolved between the administrators of the scheme (NDIA) and NDIS participants. In 2019, one such significant and controversial case asserted that ‘WRMF’, a woman living with multiple sclerosis, could use her NDIS funding to pay for the services of a sexual therapist. The basis for this ruling involved complex debates about citizenship and rights, which were embedded in contested notions of the person. In this paper, I use critical discourse analysis to examine these competing claims and the individualised framework in which WRMF's case was debated. The analysis reveals two key social justice issues: first, that there are limits to the citizenship available for people living with a disability (which assumes compulsory able‐bodiedness); second, that broader concepts of the person require explicit attention from the NDIS to embrace more expansive notions of citizenship for people living with a disability, including acknowledgement of sexual identities and needs.

When Transparency Can Be Deadly: Reporting of Identifiable and Locatable Personal Information in AAT Couple Rule Decisions that Involve Domestic Violence

When a person discloses domestic or family violence, it is vital that identifying or locatable information be managed with appropriate protective factors in place. This is because there is a very real risk of perpetrators locating their victims and their children and inflecting further harm. It is also due to the sensitive nature of this information. Sleep found that one in five ‘couple rule’ decisions reported by the Administrative Appeals Tribunal (AAT) involved domestic violence. Further, that these decisions report identifiable and locatable information about domestic violence victims and their children and are freely accessible to the public online. This puts victims and their children at increased risk of further abuse from their perpetrator. This paper argues that more care should be taken when disclosing individual’s identifiable and locatable information in reporting of decisions by tribunals like the AAT, especially in situations that involve sensitive and/or risky information like ‘couple rule’ decisions that involve domestic violence. This is demonstrated through a content analysis of AAT ‘couple rule’ decisions that are publically available online and involve domestic violence.

Adjudicating reasonable and necessary funded supports in the National Disability Insurance Scheme: A critical review of the values and priorities indicated in the decisions of the Administrative Appeals Tribunal

AbstractBeyond the initial euphoria of the National Disability Insurance Scheme (NDIS), tough choices will be needed for sustainability. Although the spirit of the NDIS is to deliver choice and control, the Australian government's objective is to ensure that rights and aspirations are proportionate to expectations of best practice, aptness of mainstream services and cost effectiveness. The position in this paper is that this test of ‘reasonable and necessary’ when determining funded supports, raises value dilemmas for government and citizens. The objective is to demonstrate this through a critical scrutiny of the reviews and decisions regarding reasonable and necessary funded supports of the Administrative Appeals Tribunal (AAT). In this paper, a synthesis and critique of 35 appeals to the AAT and one Federal Court Appeal are used to make explicit the decisional ambiguities and contestations in the scheme and the values and priorities that are currently dominant in the allocation of reasonable and necessary support. This in turn is used as a basis for a discussion about the operation of rights in the scheme and what counts as legitimate support. The benefit is for scheme transparency and fairness but also broader debate about core principles and values to inform decisions about scarce resources in society.

Evaluating the ‘Merits’ of Alternative Dispute Resolution (ADR) at the Administrative Appeals Tribunal (AAT)

Evaluating the ‘Merits’ of Alternative Dispute Resolution (ADR) at the Administrative Appeals Tribunal (AAT)

An analysis of challenges to ASIC’s s 920A banning orders against financial services providers in the AAT and the courts

Section 920A of the Corporations Act 2001 (Cth) provides ASIC with a flexible power to ban individuals from the Australian financial services industry on a number of grounds. The objective of this power is to protect consumers through upholding compliance with the law and adherence to professional standards. Banned individuals may apply to the Administrative Appeals Tribunal (AAT) to review the merits of such decisions, and on limited points of law such cases may be further appealed to the Federal Court of Australia (FCA). This article analyses the practice of the AAT and the FCA in determining challenges to s 920A banning orders. The 50 AAT cases examined in the article provide interesting examples of misconduct by financial advisers, stockbrokers and traders, insurance brokers and operators of investment schemes. The article shows that whilst the AAT has shown a flexible approach in considering the circumstances of each banning (setting aside four bans and varying the length of 15 bans), it has nevertheless exhibited a firm approach in the other 31 cases in affirming bans following serious misconduct. The article concludes by suggesting some minor reforms to further enhance the range of protective enforcement tools available to ASIC.

Securing the Administrative Appeals Tribunal’s independence: Tenure and mechanisms of appointment

The Administrative Appeals Tribunal must be independent from inappropriate influence, and the perception of such influence, in order to effectively perform its duties of de novo merits review of government decisions. Drawing on recent controversies surrounding the Administrative Appeals Tribunal in 2017, this article concludes that the current mechanisms of Administrative Appeals Tribunal member reappointment exposes the Administrative Appeals Tribunal to a risk of inappropriate influence by the government of the day or at least a risk of public perception to that effect. After examining several possible reforms to minimise this risk, this paper proposes the creation of an independent reappointment committee for the Administrative Appeals Tribunal.

Flexible Yet Firm: The Practice of the AAT and the Courts in Reviewing ASIC S 206F Management Disqualification Orders

Section 206F of the Corporations Act (2001) provides ASIC with a cheap and flexible enforcement power to disqualify for up to five years persons who have been involved in managing two or more failed companies within a seven year period. Individuals who have been disqualified under s 206F may challenge such disqualifications through the merits review process at the Administrative Appeals Tribunal (AAT), and in further limited circumstances, through the courts. This article examines the 36 AAT decisions that have determined challenges to the corporate regulator’s disqualification orders. It shows that whilst the Tribunal has set aside or varied around half of these disqualification orders (based in several cases on the consideration of fresh evidence), the Tribunal has nevertheless demonstrated a firm approach to upholding standards of responsible corporate management in those disqualification orders that it has affirmed. The article concludes by outlining potential reforms to s 206F to further enhance the effectiveness of this provision in deterring insolvent trading and ensuring responsible corporate management practices.

A Study on the Unification of Administrative Appeals Tribunal System - Focusing on the Relationship between Central Administrative Appeals Tribunal and City/Provincial Administrative Appeals Tribunal -

최근에 입법예고된 중앙행정심판위원회(중앙행심위)의 법제처로의 이관방안을 놓고 발생하고 있는 논란은 중앙행심위의 위상, 그리고 중앙행심위와 시․도행정심판위원회(시도행심위)의 관계에 관한 보다 진전된 논의가 필요함을 잘 보여준다. 이러한 문제를 해결하기 위해서는 크게 이론적 쟁점을 검토할 필요가 있다. 1) 행정심판의 두 가지 기능(행정의 자기통제기능, 국민의 권익구제기능)에 관한 헌법의 취지, 2) 자치권의 침해 여부, 3) 비교법적인 정당성 여부가 그것이다.BR 이러한 관점에서 보면 중앙행심위와 시도행심위를 통합하는 것은 국민의 권익구제기능을 강화하는 취지에서 논의가 되고 있기는 하지만, 국가에 의한 지방자치행정에 대한 통제를 강화하는 모습으로 나타나기 때문에 행정심판의 기능 중 하나인 ‘행정의 자기통제의 기능’의 취지와는 부합하지 않을 가능성이 존재하며, 자치권 보장의 관점에서도 문제가 될 수 있기 때문에 바람직하다고 보기 힘들다.BR 중앙행심위를 최고행정심판위원회로 위상을 강화하면서 시도행심위의 재결에 대한 중앙행심위로의 재심제도는 허용하는 것은 필요하다. 이를 위해서 다음과 같은 방안을 제시해볼 수 있다. 첫째, 시도행심위에서 청구인(국민)이 전부승소한 경우에는 원칙적으로 피청구인(행정청)측의 재심청구를 허용하지 않는다. 둘째, 시도행심위에서 청구인이 전부승소한 경우라고 하더라도 해당 지자체의 ‘자치사무’와 관련한 자치권 침해가 문제되는 사안은 예외적으로 피청구인(행정청)측의 재심청구를 허용한다. 셋째, 시도행심위에서 청구인이 패소(일부패소한 경우 포함)한 경우에는 당연히 청구인의 재심청구를 허용한다. 다만 이는 임의적 절차로 운영함으로써 시도행심위에서 패소한 후 바로 행정소송으로 가는 것을 허용한다. 넷째, 중앙행심위에서 단심제로 처리하는 사건과 시도행심위(1심), 중앙행심위(2심)으로 재심을 허용하는 경우를 나눈다. 위와 같은 재심제도를 구축을 통해 신속한 권익구제와 자치권 보호를 추구하는 것이 필요하다.

Recent Developments in Social Security Law

This Paper was presented to a Roundtable of the National Social Security Rights Network in Canberra on 5 August 2017. The Paper reports on recent developments in social security law in Australia, particularly with reference to recent decisions of the Commonwealth Administrative Appeals Tribunal and the Federal Court of Australia.

Migration Review Tribunal Decisions in Student Visa Cancellation Appeals: Sympathy, Hardship and Exceptional Circumstances

This article examines the decisions of the Migration Review Tribunal (now the Administrative Appeals Tribunal) in relation to appeals of student visa cancellations. It draws on a 2010–11 study of appealed cases, and discusses both quantitatively and qualitatively the appeals and the decisions. The study builds on literature surrounding the regulation of migration and non-citizens within national borders by analysing the regulation of international students who occupy a hybrid space or status: as desired economic migrants and as non-citizens subject to strict migration enforcement if they breach visa conditions. The findings point to inconsistencies in decision-making, concerns regarding the internal processes of some education institutions and a broader concern with regard to how, or if, students are supported to appeal visa cancellations.

Contextualizing the Reasonableness Test of Internal Relocation in International Refugee Law: Empirical Analysis of Decisions of the Administrative Appeals Tribunal of Australia Concerning Afghanistan, Pakistan, Bangladesh, India, and Sri Lanka

The applicability of the internal relocation principle (IRP) – also known as internal relocation/protection/flight alternative – in refugee status determination (RSD) has been firmly established by widespread international practice. Although the reasonableness test, which requires internal relocation to be without undue hardship for the applicant, has become the legal standard of IRP in predominant State practice and UNHCR’s International Guidelines, State parties apply IRP with considerable range of variations under the same legal standard of the reasonableness test. This phenomenon calls for a redirection of research focus from the legal standard itself to the “contextualization” of the legal standard. This paper defines “contextualization” as the process in which RSD authorities transform the abstract legal standard of the reasonableness test to a real-life picture of what it means for a particular asylum seeker to reasonably relocate to his specified country of origin. This process shows how personal circumstances of the applicant and information about the country of origin are gathered, ascertained, and analyzed to form the contextual background in which the reasonableness of internal relocation is decided. Using the State practice of Australia – decisions of the Administrative Appeals Tribunal concerning Afghanistan, Pakistan, Bangladesh, India, and Sri Lanka – as an example, this paper demonstrates the method to approach the contextualization of the reasonableness test in international practice and argues that this contextualization is the key to identify, understand, and compare State practice of IRP.

Galvanising the opposition: social media campaigns and the new risks for the oil and gas industry

Globally, the oil and gas industry has been at the forefront of social licence to operate issues for over 20 years: from Brent Spar in the North Sea in the mid-1990s to the Greenpeace-led Lego campaign in 2014. However, the increasing demand from stakeholders for transparency from both companies and regulators, combined with the use of social media platforms to bring disparate groups of people together and globally disseminate information, has created new issues and risks for the industry to manage, often within compressed timeframes. To date, the focus of environmental groups has been on exploration activity in the oil and gas sector. The formation of the Great Australian Bight Alliance to oppose the development of resources in the Great Australian Bight, the Wilderness Society’s freedom of information (FOI) request for BP’s oil spill modelling data (which was the subject of an August 2016 decision from the Commonwealth Administrative Appeals Tribunal) and the rise of the Lock the Gate Alliance in the context of the onshore gas sector are three examples of mixing traditional protest tactics with social media strategies. Using these and other examples, this paper will discuss the new issues and risks that oil and gas companies and regulators have to address as a consequence of social media being added to the stakeholder arsenal, and consider what new issues may arise in the social licence to operate space as the industry begins to address decommissioning and rehabilitation issues.

Delivering a “New Administrative Law”: Commonwealth-Queensland ombudsman cooperation, 1976–1981

Australia's so-called “New Administrative Law” reforms revolutionised citizen– government interaction in the 1970s and 1980s, with initiatives such as the Administrative Appeals Tribunal and the Commonwealth Ombudsman. Previous studies have focused on the political and policy foundations of these accountability systems, neglecting the subsequent role of politics in enabling these agencies to meet difficult service delivery challenges. This article investigates the decision of the Commonwealth and Queensland governments to create a shared ombudsman office in Brisbane in 1979, briefly noting changes to this agreement by 1981 under new Queensland Ombudsman leadership. Intergovernmental negotiations are examined as a case study in the importance of professional relationships to the wider success of the “New Administrative Law” agenda. It explores the problems that the newly created Commonwealth Ombudsman faced when delivering administrative justice within a federation of states. Despite disagreements between the parties in other policy areas, Queensland and the Commonwealth could cooperate, when encouraged by the goodwill of the ombudsmen themselves. Other factors aiding this process included: the federal government's early vision for a Commonwealth Ombudsman with staff nationwide, the positive example set by Western Australia's shared ombudsman facilities with the Commonwealth, and the need to plan for joint ombudsman investigations.

Does Section 45 of the Administrative AppealsTribunal Act 1975 (Cth) breach Chapter III of the Australian Constitution?

This article examines whether s 45 of the Administrative Appeals Tribunal Act 1975 (Cth) breaches Ch III of the Constitution. In response to any suggestion that it does, this article argues that the role of the Federal Court under s 45 is analogous to its role in conducting judicial reviews of and 'appeals' from, AAT decisions. The article then turns to examine whether this analogy holds when the referring body is not quasi-judicial in nature, but rather closely linked to the political functions of government.

Serious Invasions of Privacy: Final APF Submission on ALRC Discussion Paper 80

This submission by the Australian Privacy Foundation (APF) to the Australian Law Reform Commission (ALRC) strongly endorses establishment in national legislation in Australia of a cause of action for serious invasion of an individual’s privacy. It is appropriate to describe the action as an action in tort, or a ‘privacy tort’. The Australian Privacy Foundation (APF) is Australia's leading privacy advocacy organisation. This submission is in response to the proposals in ALRC Discussion Paper 80: Serious Invasions of Privacy. Key submissions made by the APF are as follows: (i) The most effective structure of a cause of action is that which is consistent with an intentional tort; consisting of elements that a plaintiff must satisfy with countervailing defences available to any putative defendant. There should be no requirement for the court to undertake a balancing exercise as an essential element in determining whether the plaintiff can, on his or her own case, succeed or not. (ii) The cause of action for a ‘serious invasion of privacy’ should additionally be described as an ‘interference with privacy’ for the purposes of the Privacy Act 1988 (Cth). (iii) The focus of the tort should be upon the intrusion into a plaintiff’s seclusion or private affairs (including by unlawful surveillance) and/or the misuse or disclosure of private information about the plaintiff. (iv) There is no sound legal or policy basis for limiting the scope of the action to either intentional or reckless acts rather than incorporating negligent acts. (v) There is potential for an undesirable downward ratchet effect in the concept of “reasonable expectations”: the lack of a practical remedy enables continuation of an intrusive practice without restraint, which practice reduces the level of protection that would be “reasonably expected”, which in turn reduces the scope of the tort over time. (vi) The fourth proposed element of the tort, that it is only available where the invasion of privacy is 'serious', is both unnecessary and arbitrary. (vii) There is little utility in incorporating a balancing exercise of the plaintiff’s privacy interest against freedom of expression or other broader public interest, the fifth element of the proposed cause of action. (viii) Federal, State and Territory courts should have jurisdiction to hear a serious invasion of privacy action. However, there are very strong reasons for providing the option to complainants/plaintiffs to take a ‘serious invasion of privacy’ complaint to the Privacy Commissioner. A new sub-section 13(6) should be added to the Privacy Act 1988 (Cth): ‘(6) A serious invasion of privacy under the [title of new Commonwealth Act] is an interference with the privacy of an individual,’ together with such limited consequential changes (if any) as are necessary to make the Privacy Act consistent with the new statutory action and the [title of new Commonwealth Act]. (ix) There may be a case for clarifying the law of breach of confidence even if a statutory tort were to be introduced, but some of the ALRC’s proposals are not justifiable. (x) While it is important to remove inconsistencies and promote uniformity in the the current State and Territory surveillance device and workplace surveillance laws, this must not be at the expense of reducing the level of protection of Australians against unjustified surveillance. Proposed uniform laws should apply to all existing and emerging technologies that are capable of monitoring and recording the activities of people and their data. Surveillance device laws should incorporate a mechanism for awarding compensation, or other forms of relief, to victims of unauthorised surveillance. (xi) The public interest activities of responsible journalists in investigating and reporting on matters of public interest, such as uncovering corruption, do not require a broad or vague exception for journalists. (xii) The ALRC proposal is desirable that a new APP (Australian Privacy Principle) be inserted into the Privacy Act to require an APP entity to provide a simple mechanism for an individual to request the destruction or de-identification of personal information that was provided to an APP entity by the individual. A regulator should be so empowered, preferably the Privacy Commissioner with a right of appeal to the AAT (Administrative Appeals Tribunal). (xiii) The definition of “personal information” in the Privacy Act 1988 (Cth) should be amended so as to confirm that the information will remain personal information, despite any steps to anonymise it, if there is any significant possibility that it may be re-identified in future.

Trials and tribulations in the removal of dextropropoxyphene from the Australian Register of Therapeutic Goods

• The Therapeutic Goods Administration determined in November 2011 that dextropropoxyphene should be removed from the Australian Register of Therapeutic Goods. This is consistent with this drug's removal from the market in many other developed countries. • However, dextropropoxyphene is still on the market in Australia owing to a series of appeals made to the Administrative Appeals Tribunal (AAT) by the drug's manufacturer. • There is a difference between the standards by which the AAT judges the safety and efficacy of medicines and the standards used for registering therapeutic goods by regulatory agencies worldwide. • This raises the question as to whether the appeal process against TGA decisions appropriately serves the Australian public interest.