David Shoebridge (NSW, Australian Greens) Share this | Hansard source

It was closer to 200, but we'll see next week, in estimates, the full-time equivalent gap between what they're meant to be budgeted and resourced for and what they're actually budgeted and resourced for. Whether it's 100 or 200—even 100 members short is, I reckon, a pretty bad call. Then the government come in and say, 'Oh well, they might be 100 or 200 members short, but the problem is how the hearings happen, not the fact that we don't appoint tribunal members.'

If you look closely, the problem also lies, probably even more fundamentally, with the Department of Home Affairs. Evidence given by the ART revealed that lodgements in the ART for review of Home Affairs student visa refusals have increased exponentially. As the CEO and principal registrar of the ART said, in 2022-23 there were 2,057 student visa refusal matters; in 2023-24 it was 11,668; in 2024-25 it escalated to 32,198; and in the first two months of this financial year there were 5,755 cases lodged. That surge of refusals from Home Affairs also means that student visa reviews have taken up a greater and greater percentage of the ART case load. Mr Hawkins, the CEO, said:

… in 2024-25, it was about 37 per cent; in 2023-24, it was 22 per cent; and, in 2022-23, it was 4.6 per cent.

I said that the wrong way around, but I'm just repeating the way in which Mr Hawkins gave evidence. So it went up from 4.6 per cent of the case load in 2022-23 to 37 per cent of the case load in 2024-25—dealing with student visas. Not only has the sheer number of student visas reviews increased, such that they now consume over a third of the ART's case load, but the quality of decisions made by Home Affairs, as measured by the overturned rate of review, has dramatically fallen.

The ART's chief lawyer, Ms Haddad, told the Senate Legal and Constitutional Affairs Legislation Committee:

I've got the percentages for student visa refusals. For 2022-23, the number of set asides was 43 per cent. For 2023-24, the number of set asides was 46 per cent. For 2024-25, it was 47 per cent, and for the first two months of this year it's 46 per cent.

What were they before COVID? Ms Haddad said:

They were closer to 25 per cent.

The historical norm is that one-quarter of refusals get overturned and visas get granted, but Home Affairs are now churning them through at a massive rate. They are not applying due diligence and they are often refusing matters because a document is missing. Rather than giving the opportunity for the document to be provided, they're just refusing them, in the tens of thousands, and passing the buck to the underresourced, understaffed ART. That's what's happening.

From the dissenting report:

It turns out that Home Affairs has decided to refuse thousands of student visas because of missing documentation. We were told that the 'common reasons for remittal in the student space include objective material—assessable items such as confirmation of enrolments, penal clearances, English assessments, financial capacities, medicals and biometrics'. If these documents are 'not provided to the department as part of the primary application … then the visa application will be refused'.

So what we're seeing is Home Affairs moving their administrative problem and, rather than doing due diligence, checking for documents, giving people a chance, they just refuse it, move it on, whack it into the ART and say it's all the ART's problem, and then the government doesn't even resource the ART. To continue:

So, thousands of lodgements are being filed in the ART because Home Affairs has decided to refuse the applications that are missing one or two documents. Rather than Home Affairs giving visa applicants fair notice that their applications are missing documentation, and then a chance to correct that, instead they are just refusing them—

And that's what is leading to tens of thousands of lodgements in the ART, and that's why half of them are being overturned and sent back to Home Affairs—

The obvious answer to this mess lies in Home Affairs reforming its processes, giving applicants natural justice and fair notice, not in stripping away rights once their bad decisions are reviewed in the ART.

Furthermore, the high set-aside rate for student visas shows that proper hearings are essential. Removing oral hearings will likely lead to more judicial reviews, which would in turn create more inefficiency, not less. As the Migration Institute of Australia pointed out:

'The ART's high set aside rate of 47% in student visa refusals, suggests systemic challenges in primary decision making. Removing oral hearings would prevent affected appellants from properly challenging adverse decisions.

Appellants denied an oral hearing may be more likely to seek judicial review, increasing pressure on the courts and undermining the Bill's stated efficiency objective.'

Also, National Legal Aid Point out:

In 2022/23, NLA supported the trial of paper-only decision-making through the Independent Expert Review program to assist with the backlog of [National Disability Insurance Scheme] matters in the Administrative Appeals Tribunal. This included legal assistance prior to paper review. This trial was ended after nine months as it was not found to be an efficient way to clear the backlog of cases.

So there has been a trial of paper-only reviews in the NDIS space, and it did not work, even with legal assistance. As the Refugee Advice and Casework Service said:

There is no evidence to suggest that the removal of an oral hearing has a positive causative impact in reducing backlogs or increasing efficiency in processing appeals.

At the core of this bill is an issue of the long wait times at the ART, which have grown significantly, and we acknowledge that. For example, the number of refugee cases on hand in 2012-13 was just under 2,000, and it has grown to some 40½ thousand in the most recent annual report. Annual reports show that the average wait time was 243 weeks, up from around 30 weeks a decade ago. If you want to know the cause of much of that, it has been both Labor and the Liberal Party withdrawing legal assistance to applicants in the ART, withdrawing legal assistance from people who are challenging ART matters. When you withdraw legal assistance, you draw out cases, you increase wait times and you get in this mess.

I want to thank groups like the Migrant Workers Centre, the ASRC, National Legal Aid and others who pointed out that this bill is not the solution. That's why the Greens won't support it. You don't just punch down on migrants, you don't just take their rights away; you fix the problems. The problems here are a lack of resourcing the ART and the mess in Home Affairs.