Dai Le (Fowler, Independent) Share this | Hansard source

During my time in office, I've had constituents coming to see me, desperate and upset, following a devastating decision made by government departments—particularly, a constituent who had his temporary protection visa rejected. His next avenue was to apply to the AAT to have the decision reviewed. We must remember that people who have fled war-torn countries are not well versed in Australia's laws, rights and obligations.

This constituent came in with so many questions: 'What do I need to do? How do I apply? What is the cost?' The cost is what made him pause. He had to consider hiring a legal representative—money he did not have. Of course, you also have to pay an application fee to the AAT. How then is this an accessible and affordable route to holding government departments and agencies accountable for their decisions, especially in the instance where someone is unable to make a living and therefore not able to access Australian services?

What about families who are unable to unite? Another constituent applied to the AAT in the hopes of changing a decision that was made for a remaining relative visa. The applicant was elderly and was subjected to further wait and the stress of not knowing when and what decision could be made.

The AAT is seen as a ray of hope for many, but it is unfortunate that many others are left uncertain of their pending matter and its progress. I believe it is important to implement proactive communication by the AAT—perhaps correspondence which provides updates at least within 12 months of application and every 12 months thereafter, even if only to notify the matter's queueing time. This proactive communication would give relief to applicants, who generally only receive acknowledgement of receipt once the AAT invites an applicant to a hearing. I believe this will also reduce the high volumes of emails and letters sent by applicants, which the AAT are obliged to read, when the writers of these emails and letters simply want to know how their matter is going. These are just a couple of stories, but there are many more from those who've known of someone or who have been that someone who has been impacted by the Administrative Appeals Tribunal's decisions.

I understand that the AAT provides a critical layer of accountability to review decisions of departments. However, shouldn't its powers be extended so that it has jurisdiction to review the lack of decisions made by departments—that is, their failure to make their decisions within stipulated time frames? If we are to reform the AAT, why is the government not considering the omissions made by government departments in the decision-making process? The issue we have here is a stalemate, of having to wait. Take, for example, a decision to be made on a visa. Why are we not holding government departments accountable in this sphere?

Therefore, the Administrative Review Tribunal Bill 2023 and cognate bills hold significant importance for my constituents—both current constituents and those whose futures we are deliberating upon as we speak. Eleven per cent of the total inquiries from my Fowler community are specifically about this issue. Many of our constituents have gone through the process of becoming permanent residents and are anxious to reunite with their loved ones. With security of family affairs cared for, I believe greater social cohesion will be formed and productivity will increase.

It is critical that the provisions of this bill are applied cohesively and equally across both citizens and noncitizens. I am deeply concerned about the disparities between the entitlements granted to citizen and non-citizen applicants. This inconsistency will continue to add to the existing disadvantages of refugees and migrants, undermining the tribunal's ability to deliver effective outcomes.

In 2022-23, close to 50 per cent of all applications made were on migrant and refugee matters. Of these, 83 per cent of applications stayed unresolved for more than 12 months—83 per cent. This is unacceptable. Constituents in Fowler often reach out, distressed and disheartened by their circumstances. The last thing they need is to be met by systematic and bureaucratic barriers to getting a resolution. The principle of the bill should enable applicants to effectively engage with the review process to ensure fair outcomes and transparency.

This group is but a small representation of a large cohort of my community struggling to get a proper response. Many are uncertain of their next steps and are faced with a lack of clarity. Every effort taken to alleviate the burdens imposed upon applicants in migrant and refugee matters counts. As the voice of Western Sydney in my Fowler community, it is important that I present their views, challenges and struggles. Many have lost faith in the AAT and its strength to protect their dignity, as they are left in despair, feeling hopeless—waiting endlessly for a favourable outcome. Therefore, the people of Fowler will no doubt be the first to let you know whether this bill is, as it states, one that is user focused, efficient, accessible, independent and fair.

Since its commencement on 1 July 1976, the principal objective of the Administrative Appeals Tribunal—better known as the AAT—has always been to (1) ensure correct and preferable decisions are made by departments, their ministers and delegates and (2) form these judgements based on their own independent and robust interpretation of the law and policy as it best serves the interests of Australians. That was the intention when it was first commenced. But, like many big administrative bodies, the people involved, the experts appointed and the government of the day have changed, and so, over the decades, the AAT has evolved. It is a big step, and an expensive one, by the government to consider axing the AAT, but, as many of my crossbench members have mentioned, change is needed. If the new body, the ART, is to replace the AAT, it must fill the gaps and weaknesses of the AAT. I welcome the many aspects of the bills that seek to be efficient and quick in addressing the previous backlogs and gaps associated with the AAT.

Although the bill aims to provide more accessible and responsive support for people who require additional and tailored support, there are still some gaps and pain points that I would like to address. In particular, the bill falls short of meeting its objective for migrant and visa applicants. It is especially concerning for me that the objective under the new legislation is more concerned with being efficient and quick rather than being fair, just and economical, like the AAT. There must be a balance in this. I appreciate that the government is attempting to address the overdue system, but I call on the government to consider the barriers to access and the equity issues for migrants, refugees and asylum-seeking applicants. It is these applicants who are most in need of greater flexibility and dedicated measures to improve accessibility.

Fowler is home to many migrants, including refugees like myself. The number will likely grow exponentially. In 2016, most refugees were settled in local government areas of Liverpool, where they account for 20 per cent, and Fairfield City Council, where the figure is 73 per cent. In my experience with assisting non-English-speaking constituents, I believe that the protracted time frame for noncitizens to lodge an appeal is inequitable and insufficient. It is particularly difficult for a non-English-speaking constituent to seek assistance to comprehend such complex legal decisions within a limited time frame. I suggest that the government take this into consideration and consider the applicant's primary language when communicating the outcome of a review decision.

I understand that the provisions in the ART Bill allow for certain groups of applicants to apply for legal or financial assistance on the grounds that the request is reasonable and refusing would lead to further hardship. This may disadvantage migrant applicants who have limited or no English speaking ability. I call on the government to extend the application of this provision for all matters to ensure accessibility for all applicants. This reflects a human rights based understanding of the right to a fair hearing, as well as an individualised approach to administrative review, including the consideration of cultural factors, disability and health concerns.

The truth is that the new and improved provisions in the ART Bill are still failing to meet this objective for migration and protection visa applicants. These groups of people within Fowler will continue to struggle under the distinctive procedural code that excludes them from some of the benefits of the proposed bill. By refusing to take adequate actions and promote equity before the law, the government is refusing to address the innate inequality associated with the system.

Section 359A(4)(d) of the bill provides that the ART is not required to notify applicants of information that it intends to rely on to affirm the decision under review. It is concerning to me that this piece of legislation is departing from existing procedural fairness requirements. In terms of cost, the application fee is $3,374 for the AAT. This is overwhelmingly high for individuals, who are already struggling with the cost-of-living crisis. I ask the government to reconsider the issue of accessibility, which is tied with immigration assessment authority, the IAA, and the proposed ART system.

Clauses 201 and 203 establish a code of conduct and create powers for investigations to transpire if a performance standard has been breached. I question how strictly these performance standards will be enforced and what mechanisms will be implemented to ensure that shortcomings are adequately rectified. It is my understanding that the bill allows for the establishment of an independent selection panel to provide recommendations to improve the processes of the tribunal. However, it's not mandatory that these recommendations are adopted. I question whether the tribunal will consider the recommendations to address gaps in its operations. I appreciate the government's efforts to address the previous merits review system under the IAA, which was heavily politicised for being neither fair nor efficient. However, I want to note that it took nine years for the government and decision-makers in this room to propose a prospective resolution.

Should this bill be assented, we must ensure that it is ready to meet standards that reflect our migrant and ethnic communities. It is our golden opportunity to close a gap. I call on the government to ensure that we are proposing policies that are working for all people. To be part of an advanced Australia, we must ensure that there's progress, that our systems and processes are world class and not built to leave people behind.

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