Immigration Minister Peter Dutton has received a stern ticking off from the Law Council of Australia for undermining public confidence in the Administrative Appeals Tribunal. Yet the tribunal has been busily undermining itself with a series of soft-headed judgments that defy common sense.
Consider the case of the Iranian who arrived by boat in 2011 and was given a protection visa on the grounds he faced execution at home. When he returned safe and sound to Australia after his third trip back to Iran, Dutton decided the jig was up and ordered his deportation. Yet the tribunal stayed the minister’s hand.
After all, he’s only a minister in a popularly elected government acting on the advice of his department. The tribunal’s members, apparently, have been chosen for their penetrative wisdom, incorruptible judgment and unwavering impartiality.
We’re indebted to Keith Moor at the Herald Sun for casting a light on the track record of the faceless turkeys who overturned 39 per cent of the 11,323 ministerial visa decisions reviewed between March last year and last month.
Among the dubious characters who — thanks to the AAT — still call Australia home is an Indian taxi driver on a bridging visa who was found guilty of putting his hand up the dress of a drunk female passenger, touching and kissing her.
AAT adjudicator Miriam Holmes overturned a deportation order, saying cancellation of his visa would adversely affect his ability to manage his psychological condition with his treating psychologist while his wife would suffer emotional hardship.
Then there’s Calabrian mafia boss Francesco Madafferi, with a history of violence and extortion. He overstayed a tourist visa and would have been jailed if sent back to Italy. His deportation order was overruled in 2000 by tribunal member Alan Blow QC on the grounds it would have an adverse impact on his children.
“Their mother would be saddened … probably for a very long time,” he said. Madafferi subsequently was sentenced to 10 years in jail for his part in the importation of 15 million ecstasy pills.
To describe these decisions as “infuriating”, as Dutton did last week, is an understatement. But like any good union boss, Law Council president Fiona McLeod SC hit back on behalf of her members.
“Any suggestion by government that Australian jurists are not acting with independence is dangerous and erosive to our justice system, and lies outside Australia’s democratic tradition,” McLeod said.
Anti-democratic? There’s a good one. An administrative judicial body, staffed by bureaucrats on six-figure salaries, is apparently a better guardian of democracy than a minister of the crown.
It will surprise no one to learn that the AAT was a creation of the Whitlam administration, driven by the brutalist zeal to “modernise” government. Like the barefaced concrete buildings of the time, it has proven expensive to maintain.
It was established with bipartisan support in 1975 with a modest budget of $300,000, about $2 million in today’s money. Today it has a budget of $135m, having absorbed the former Migration Review Tribunal, Refugee Review Tribunal, and Social Security Appeals Tribunal under the past Labor government.
Its original purpose — to afford the individual protection against the whims of bureaucrats — has long since been lost in the legalistic, slow-moving process of dealing with tens of thousands of complaints. Inevitably it has become a bureaucratic behemoth of its own, all the more dangerous for its judicial powers exercised without adherence to the usual rules of evidence.
If the minister thinks an AAT decision is wrong in law he can lodge an application for a judicial review with the Federal Circuit Court. More legal expense, more delay, more false hope for the immigrant and the even slower exercise of justice. Who can blame the minister if, in most cases, he decides the prudent course of action is to walk away?
In theory the AAT must confine its considerations to errors and injustice in administrative matters; it has no jurisdiction on the merits of the case. In reality, however, the distinction is difficult to make. Unlike equivalent administrative laws in the US, there is no doctrine prohibiting the judicial review of political questions. In practice it is open slather, with AAT members bringing to the table whatever prejudices to which they may be prone and using them to overturn the considered judgment of the minister or his delegate informed by the knowledge and experience of the department.
It is unclear which administrative error AAT member John Handley thought he was remedying when he blocked the deportation of Carl Stafford to New Zealand in 2013.
Stafford had 365 convictions to his name, including one for slashing the face of a stranger with a knife on a Melbourne tram. Handley acknowledged that Stafford’s crimes were serious and could not rule out the possibility that Stafford might continue to offend if allowed to remain in Australia.
But Stafford had mental health and drug problems, he said. His mother was a hooker. Society was to blame.
“The Australian community should bear some responsibility for the absence of intervention,” he said. “Had the applicant at an early age had access to appropriately qualified case managers and/or counsellors … he may well have been able to exercise a degree of restraint from impulsivity and offending.”
Two years after the decision allowing him to stay, Stafford broke into a St Kilda home where he savagely raped and brutalised a woman for 45 minutes.
It is bad enough that the tribunal damages its own credibility with perverse decisions such as these. Worse still is the erosion of trust in the immigration process itself.
That damage will continue so long as the AAT decides who stays in this country and the circumstances in which they stay.
Nick Cater is executive director of the Menzies Research Centre.