CHAPTER 2

CHAPTER 2

ANNUAL REPORTS OF STATUTORY AUTHORITIES

2.1        The following report of statutory bodies for the financial year 2008-09 were referred to the committee for examination and report:

Attorney-General's Portfolio

Immigration and Citizenship Portfolio

2.2        On this occasion, the committee has decided to examine in more detail the reports of the Migration Review Tribunal and the Refugee Review Tribunal, as well as and the Federal Court of Australia.

Migration Review Tribunal (MRT) and Refugee Review Tribunal (RRT)

2.3        The tribunals decided 8,229 cases during 2008-09, with 39% of cases being decided in favour of the applicant. The number of cases decided during the year had increased by 9% from the previous year; while the number of cases on hand increased by 36% over the number on hand at the end of the previous financial year.[2]

2.4        The tribunals' registrar indicated that, in response to an increasing and complex caseload in the last two years, there has been a:

...focus for change in relation to the management of caseloads, the nature and quality of support services provided to Members, the information and guidance that we publish and our relationships with stakeholders.[3]

2.5        The Principal Member's report noted that membership of the tribunals has increased and will provide an increased capacity to deal with cases.  Members appointed on a full-time basis had increased from six to 24.  It was further noted that:

Despite the pressures of an increased caseload, it is important that the Tribunals continue to provide fair and high quality reviews – fair to individuals, and capable of improving the quality and consistency of migration and refugee decisions at the primary level.[4]

2.6        The Principal Member raised the 90-day period for RRT reviews as an area for possible reconsideration in a review of the merits review architecture of the Migration Act 1958.  Section 414A of the Act sets a 90-day period for the conduct of RRT reviews of validly made or remitted applications.  In accordance with section 440A of the Act, a report is presented to the Parliament every four months on reviews not completed within 90 days. The Principal Member advised that:

The 90-day period was introduced in 2005 when there were significant backlogs of protection visa cases at the primary and review levels, and when there were large numbers of protection visa applicants in immigration detention.

While most cases can be fairly decided within 90 days, the requirement for reports to be presented to Parliament every 4 months on all protection visa cases which exceed 90 days has the tendency to place greater emphasis on speed than on fairness to the applicant and distorts priorities between the two Tribunals. There is a case for this level of reporting to be maintained only for applicants who are in immigration detention. This would improve the capacity of those assisting applicants and our Members to continue to give high priority to detention cases. The timeliness of reviews involving persons not in immigration detention could be reported on satisfactorily in Annual Reports, in the same way as performance against time standards is reported across the MRT caseload.[5]

2.7        The committee regularly monitors these reports and will watch developments in this area with interest.

2.8        The performance information contained in Part 4 of the report is well presented and includes a range of tables, graphs and charts to present statistics on caseload, lodgements, cases on hand, timeliness and complaints. This section also includes a report of performance against service standards, all of which were reported to be achieved.

2.9        The inclusion of case studies provides useful background and an insight into matters dealt with by the tribunals.[6]  The committee commends the tribunals on a comprehensive annual report which it considers to be 'apparently satisfactory'.

Federal Court of Australia

2.10      It was reported that the combined workload of the Federal Court and the Federal Magistrates Court was 10% below the previous year.[7]  There were 10,407 matters filed in the two courts in 2008-09.  Filings in the two courts have increased since 2000, with 6,276 filings in the year 1999-2000.  It was noted that:

...overall growth in the number of filings since 2000 has had a considerable impact on the Federal Court's registries, which process the documents filed for both courts and provide the administrative support for each matter to be heard and determined by the relevant Court.[8]

2.11      The Court exceeded its time standard goal of 85% of cases completed within 18 months of commencement, achieving 90.2% for 2008-09.  On the second time goal, which aims to have judgments delivered within three months, the Court's performance was slightly down on the previous year:

...86% of appeals (both full court and single judge) were delivered within three months and 80% of judgments at first instance were delivered within three months of the date of being reserved'.[9]

2.12      The report presents statistics on the number of matters referred for mediation over the previous five years and shows an overall increase since 2005. In 2008-09, 522 matters[10] were referred for mediation compared to 379 in the 2007-08.  The settlement rate for matters for the reporting year was 57%.  It was further noted that:

While settlement rates assist the Court to assess the effectiveness of its mediation program, they are not the only criteria used.  Many matters settle after mediation but before hearing and those matters that proceed to hearing often do so with the issues narrowed or some of the facts agreed as a result of the mediation.[11]

2.13      The report includes summaries of developments made during the year to improve processes and to increase the use of technology to improve efficiencies.  The Chief Justice issued the Fast Track Directions on 24 April 2009 through Practice Note No 30.[12]  The Directions aim to provide a framework where cases may be heard and finalised within five to eight months from the date of filing, and to reduce costs by limiting discovery and avoiding lengthy interlocutory disputes.[13]

2.14      On 29 January 2009, the Chief Justice issued a practice note on the use of technology in the management of discovery and the conduct of litigation. The aim of the practice note is to encourage and facilitate the effective use of technology 'by setting out the Court's expectations as to how technology should be used in the conduct of proceeding before the Court and recommending a framework for the management of documents electronically in the discovery process and the conduct of trials'.[14]

2.15      The report also provided an update on the Court's eServices strategy and advised that work has continued in the reporting year on the development of an eLodgment application.[15]

2.16      The Court reported a net operating deficit of $1.838 million for 2008-09, having received approval from the Minister for Finance and Deregulation to incur a $3.8 million deficit. The deficit was reported to be as a result of:

2.17      The committee considers the annual report of the Federal Court of Australia to be 'apparently satisfactory'.

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