June 2020 The Review includes news about the AAT and summaries of a selection of our published decisions. Previous issues of The Review are available on our website. User feedback survey for representatives open until 9 July 2020The AAT has extended the representative version of its annual user feedback survey until 9 July 2020. The parties’ survey closed to most respondents on 2 July 2020. Invited practitioners have been emailed instructions and a unique link to the survey from our research provider, ORIMA, including to notify them of the extension. The findings from the survey will be used to assess our performance on user experience and inform the continuous improvement of our services. Find out more about the survey on our website. Increase to application fees from 1 July 2020Many types of applications for review by the AAT attract a fee. The fees are reviewed each year in accordance with a formula, taking into account the CPI. Following the latest review, the changes to application fees have been published on our website. You can find information about our fees by application type in the apply for a review section of our website. Virtual hearings in the Migration and Refugee DivisionNew practitioner materials (linked below) have been published to describe how to prepare for a virtual hearing in the Migration and Refugee Division.
The power of the AAT to dismiss an applicationThis month we focus on the Tribunal’s power to dismiss an application under the Administrative Appeals Tribunal Act 1975 (Cth). The AAT may dismiss an application prior to a hearing in certain circumstances including: where an applicant fails to appear[1]; if the Tribunal is satisfied it does not have jurisdiction to review the decision; or if the applicant fails within a reasonable time to proceed with the application or to comply with Tribunal directions.[2] The AAT may also dismiss an application where it is satisfied that the application is frivolous, vexatious, misconceived or lacking in substance; has no reasonable prospect of success; or is otherwise an abuse of process.[3] The power to dismiss an application[4] can be used to stop claims without any prospect of success from progressing or where the AAT cannot offer the relief an applicant is seeking. [5] The words ‘frivolous’ and ‘vexatious’ are technical legal terms which essentially mean there is no legal basis for a proceeding. An application may be an ‘abuse of process’, if it is pursued for a purpose other than to change the decision under review. The AAT takes a cautious approach to dismissing an application for any reason when it is early in proceedings. It is usual to give the applicant an opportunity to explain why they think their application should continue before making a final decision to dismiss an application. Based on figures for the current financial year to the end of May, three per cent of applications in divisions of the AAT, excluding the MRD[6] and SSCSD[7], were dismissed without proceeding to hearing.[8] A further four per cent were dismissed because the decision was not reviewable by the Tribunal. Two recent decisions summarised below provide some examples of how the AAT approaches dismissal applications.[9]
[1] Except in migration cases that can only be dismissed in limited circumstances, under the Migration Act 1958 (Cth), s 362B and s 426B. Whitlock and Comcare (Compensation) [2019] AATA 1911 (16 July 2019) This decision involved the AAT considering whether to dismiss an application for compensation from a security guard at Parliament House. Wilson and Secretary, Department of Employment, Skills, Small and Family Business (Social services second review) [2020] AATA 121 (15 January 2020) The Department asked the AAT to dismiss one of three applications from a self-represented applicant. Our staff produce decision summaries for a selection of AAT decisions that have been published in full on the AustLII website. We use these summaries to offer an insight into our decision-making processes and to demonstrate the diversity of our work. For the complete facts and reasons, please view the full written decisions on AustLII. View our recent decision summaries below. GeneralPDWL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 485 (11 March 2020) In this decision, the AAT found the applicant could be granted a safe haven enterprise visa on the basis that the applicant would be at risk of harm and did not present a danger to the Australian community. Asomua and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2019] AATA 5425 (17 December 2019) The AAT affirmed a decision not to revoke the mandatory cancellation of the applicant’s visa on character grounds. Migration and Refugee1703014 (Refugee) [2019] AATA 6551 (3 October 2019) The AAT found the applicant was unable to satisfy the criteria for a protection visa as they were not genuinely seeking protection and had knowingly submitted incorrect information. 1615507 (Refugee) [2019] AATA 6511 (28 November 2019) In this matter, the AAT affirmed a decision refusing to grant a protection visa. The AAT was not satisfied the applicant had a well-founded fear of persecution because of their religion. 1910423 (Migration) [2020] AATA 641 (2 March 2020) The AAT found the applicant had a substantial reason for travelling and remitted this decision to refuse him a bridging visa. Ca De Vin Pty Ltd (Migration) [2020] AATA 534 (26 February 2020) The applicant sought a review of a refusal for a skilled visa. The AAT set aside this decision as it accepted the applicant met the essential criteria for an employer nomination. Social Services and Child SupportHurst and Secretary, Department of Social Services (Social services second review) [2020] AATA 2 (3 January 2020) The AAT set aside a decision that the applicant did not qualify for a disability support pension as her condition was severe and she would struggle to find and maintain employment. The AAT Bulletin is a weekly publication containing information about recently published decisions and appeals against decisions in the AAT’s General, Freedom of Information, National Disability Insurance Scheme, Security, Taxation & Commercial and Veterans’ Appeals Divisions. The Bulletin also regularly includes a sample of decisions recently published in the AAT’s Migration & Refugee Division and Social Services & Child Support Division. What do you think? Write to us at Communications@aat.gov.au to provide editorial suggestions and feedback. |