Kate Chaney (Curtin, Independent) Share this | Hansard source

I rise today to speak on the Administrative Review Tribunal and Other Legislation Amendment Bill 2025. The objective of this bill, to improve the efficiency of the tribunal, is one I broadly support, but I also harbour serious concerns about aspects of the government's approach. On balance, I intend to support the bill given the efficiency gains it promises, but I will be proposing an amendment to ensure those gains are not bought at the cost of fairness to international students and other migrants.

Since 14 October 2024, the Administrative Review Tribunal has operated in place of the Administrative Appeals Tribunal. The ART was established under the Administrative Review Tribunal Act 2024 with the explicit aim of modernising and strengthening the system of merits review across the Commonwealth. In broad terms, the ART is empowered to review administrative decisions made under more than 400 Commonwealth acts and legislative instruments ranging from visas and migration to taxation, social security, NDIS, child support, veterans entitlements, workers compensation and more. Its mission is to provide an independent, accessible, fair and efficient merits review process. The ART can receive new evidence, revisit factual material and assess matters afresh. It may affirm, vary or set aside the original decision or substitute a new decision. Its procedures are meant to be flexible, with the minimum formalism necessary to ensure justice.

The ART's design emphasises merit based appointments of members, enforceable performance standards and a code of conduct to underpin the integrity of the institution. All of this reflects past lessons learned from the operation of the AAT—for example, politicised appointments, insufficient transparency and structural pressures on capacity and case backlogs. In short, the ART is intended to be a more coherent, resilient and trusted tribunal, one that can deliver just outcomes without unnecessary delay.

The principal problem the tribunal faces today is that rising case loads are driving unacceptable delays in decisions. Wait times are growing, which causes hardship to applicants and defeats the aim of the tribunal. One of the drivers of this backlog is student visa refusal appeals, which have surged in number to now make up almost 40 per cent of all lodgements. Because of those backlogs, some applicants wait many months, even more than a year, before they learn whether their case is accepted or how it will be handled. During that time, their lives, studies, families, finances and future plans are in limbo. In some cases, students may lose academic semesters or funding. In migration matters more broadly, long waits undermine certainty and foster anxiety and instability for people and their families. Further, delays also impose costs on government, on legal services and on the administrative system more broadly. The longer cases remain pending the harder they are to manage and the more resources are consumed simply through case management and review. So we do need a way to manage cases, particularly student visa matters, more efficiently.

This bill introduces three central changes designed to bring efficiency to the tribunal and reduce waiting times. Firstly, it mandates that student visa refusal matters be decided on the papers, or without an oral hearing. Secondly, it grants the minister a regulation-making power to require other temporary visa matters to be decided on the papers, although reviewable protection decisions are explicitly excluded. Thirdly, it gives the ART a broad discretion to decide remaining matters on the papers, subject to certain statutory limitations. The core logic is that by shifting more cases from hearings to written processes the tribunal can dispose of more cases faster. Applicants submit documents, arguments and evidence and do not need to attend face-to-face hearings. The government assigns all student visa cases to the paper based stream, gives the minister power to designate further categories and provides the ART with latitude to make on-the-papers determinations in other matters when appropriate.

I support the underlying aim to reduce backlogs, cut waiting times and make the tribunal more responsive, but I have serious reservations about the first two changes in particular. The first change requires all student visa refusal matters to be handled on the papers. The government's justification is that student visa decisions tend to be straightforward, governed by clear criteria and therefore do not require a hearing. It asserts a written process is sufficient in most cases. While I accept that may often be true, it's implausible that it holds all the time. The fact is that, when they're appealed, student visa refusal decisions are set aside or overturned by the tribunal nearly half the time. This shows that, when additional evidence is heard, often during oral hearings, a different conclusion is frequently reached. A shift in process will affect these directly. So, while most student visa decisions may be suitable for on the papers, a blanket ban on all oral hearings for student visa matters seems inappropriate.

There are several reasons why certain student matters may require an oral hearing. The first is discretionary and contextual judgements based on credibility. Many student visa refusals turn on questions of genuine student intention, credibility and personal circumstances. These judgements are hard to capture in writing alone. Hearing evidence, cross-examination and oral explanation often exposes nuances better. The second is youth inexperience and complexity. Many student applicants are young with limited capacity to navigate complex legal and factual materials. Written submissions demand legal precision and sophistication. In an oral hearing, tribunal members can ask clarifying questions, probe credibility and ensure applicants have had the opportunity to present their best case, especially those without legal representation. The third is translation and comprehension issues. At an oral hearing the tribunal provides translation services for applicants with limited English, but no equivalent translation support exists for preparing written submissions. That means applicants may struggle to express themselves clearly in writing, undermining the fairness and persuasiveness of their application. Last is procedural efficiency. In some exceptional cases an oral hearing may actually be more efficient, allowing a tribunal to resolve complexity quickly in person rather than through protracted exchanges of documents.

These are specific and compelling reasons why a blanket requirement for on-the-papers decisions of student visa matters is problematic. The second problematic change is the minister's power to designate other temporary visa categories for paper based review. The power is broad, discretionary and exercisable without meaningful parliamentary oversight. Relying on a ministerial regulation to decide categories risks arbitrary designation, and different temporary visa categories are still likely to have nuances and exceptions that may mean an oral hearing is more efficient or more fair in certain cases. A blanket approach eliminates that flexibility. It precludes the possibility of exceptional or complex cases being heard orally, even where fairness, justice or efficiency would favour this.

For these reasons I will propose an amendment to the bill to afford the tribunal discretion to decline a paper-only pathway and hold an oral hearing in student visa or designated temporary visa cases when the tribunal deems that appropriate. In other words, the tribunal should have the power to opt for a hearing in particular cases.

In its submission to the committee, the Commonwealth Ombudsman supported such an approach, writing:

From a student's perspective, it would be fair and appropriate for the Tribunal to have discretion to have an oral hearing …

That principle should be built into the framework. While the exercise of this discretion by the tribunal may itself be reviewable, in my view the potential delay does not outweigh the value of preserving procedural fairness. On balance, giving the tribunal discretion will enhance both the efficiency and the justice of its decision-making. I'll elaborate on my amendment to that effect during the consideration-in-detail stage.

I also note a number of criticisms raised by stakeholders which are worth drawing attention to, in the hope that they can be addressed in implementation. Some suggest that the student visa surge may be temporary—in which case, sweeping permanent legislative change may be disproportionate. Denial of oral hearings might push more appellants to seek judicial review in courts, which could add pressures to the federal courts and undermine the bill's goals of efficiency. The experience of the former Immigration Assessment Authority showed that reliance on paper based decision-making was often found to deny procedural fairness and produced increased litigation. A trial of on-the-papers decision-making in the NDIS tribunal context with the independent expert review program was terminated after nine months because it failed to deliver sufficient efficiency improvements.

There are other, less drastic alternatives to improve ART efficiency without undermining fairness. First, reducing unnecessary primary refusals could occur via increased use of requests for information. Too often a visa is refused simply because a missing document or clarification was not sought, only to be overturned later at review. Second, strengthening the tribunal's triage registry and support processes, giving more resources to registrars and administrative staff and increasing the number of tribunal members could ensure cases are processed more swiftly and effectively without reducing procedural safeguards.

To summarise, the ART is a freshly established institution intended to revitalise Australia's system of merits review, yet the tribunal now confronts serious pressures from surging case loads, especially from student visa refusal appeals. These delays do cause harm to students, migrants and families, and to the integrity and credibility of the review system. The Administrative Review Tribunal and Other Legislation Amendment Bill 2025 seeks to confront that problem by shifting many matters to on-the-papers review, mandating this approach for student visa refusals, granting a ministerial designation power over other temporary visas and giving the tribunal discretionary power for the remainder.

I support that ambition and believe that the tribunal must evolve to meet demand. But in its current form the bill overreaches, in removing access to oral hearings for all student visa cases and in giving the minister wide regulatory power over all other visa categories. This risks undermining procedural fairness or denying justice to meritorious applicants. Therefore I will move an amendment, and I would encourage the government to consider it, to ensure the tribunal retains discretion to hear an oral hearing in any case, including student visa reviews, where fairness, complexity or individual circumstances justify it. I believe that amendment balances the twin imperatives of efficiency and justice.

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