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The fraying of judicial nerves in migration cases

  • 13 July 2021
Australian governments and judges have been playing catch up for a long time trying to deal with the backlog of claims for migrant visas. A couple of recent judgments highlight the frustration at work in the system.

The Refugee Review Tribunal and the Migration Review Tribunal are now part of the Administrative Appeals Tribunal (AAT). The AAT receives about 30,000 applications for review of visa decisions each year. An applicant for a visa dissatisfied with the decision of the Minister’s Delegate can appeal to the tribunal. If the AAT agrees with the government decision to deny a visa, the unsuccessful applicant can then appeal to the Federal Circuit Court, which is limited to deciding if the AAT made a jurisdictional error of law in reaching its decision. The Court receives over 6,000 migration applications a year, managing to finalise about 4,000 a year. Half these applications are from asylum seekers wanting a protection visa. The other half are mainly applications for student visas, skilled migration visas or partner visas. Once again, an unsuccessful applicant can appeal points of law up the court chain to the Federal Court of Australia and ultimately to the High Court of Australia.

A couple of years ago, the Macquarie University’s Social Justice Clinic published some disturbing findings revealing that all was not well with this system of judicial review. The study unearthed great disparities in the outcome of appeals dependent on the personality of the particular judge deciding the case. Associate Professor Daniel Ghezelbash explained: ‘We only examined members who had decided 50 or more cases to ensure the sample is large enough to be statistically relevant. Two members did not find in favour of a single asylum seeker applicant, and another 16 had approval rates of less than 5 per cent. At the other end, one member decided in favour of the asylum seeker in 86 per cent of cases, while another three members had approval rates over 40 per cent.’

The publicity surrounding the findings focused on the judicial activity of one judge in particular: Judge Sandy Street. Judge Street, who hails from a very distinguished New South Wales legal family (his father, grandfather and great-grandfather having each been Chief Justice of New South Wales), has developed a reputation on the Federal Circuit Court for dealing very promptly with refugee and migration cases. Street joined the Federal Circuit Court in 2015. After his first four years