Record asylum caseload at Administrative Appeals Tribunal (AAT)

Nov 2, 2023
A man with a shoes and backpack is standing on asphalt next to flag of Australia and border

With announcement of a strategy to address Australia’s burgeoning asylum backlogs, it is worth looking at the asylum caseload at the AAT. Addressing the backlog at the appeals stage is often critical to getting the asylum system working, as it should to help genuine refugees while deterring the unmeritorious.

At end September 2023, the asylum backlog at the AAT had reached an astonishing 41,374, having grown from 5,434 at end June 2016 (see Chart 1).

Source: AAT Annual Reports and Caseload Statistics

The backlog has grown rapidly as the number of decisions the AAT has been able to make is generally well below the rate of new applications (see Chart 2).

Source: AAT Website, Statistical Reports

Contrary to his statement to the media about 105,000 asylum applications under the Albanese Government, the vast bulk of the increase in asylum applications at both the primary stage and at the AAT took place when Peter Dutton was Home Affairs Minister. Dutton would know that but is happy to mislead the Australian public.

The major surge in asylum applications started in 2015-16 with a labour trafficking scam abusing the asylum system using vulnerable people from Malaysia and China (see Chart 3).

Source: DHA Asylum and PV Reports

As the vast bulk of these primary applications were refused, they moved onto the AAT stage. By June 2020, at the AAT there were 12,399 asylum applications from Malaysian nationals (46 percent of AAT asylum applications) and 5,181 from Chinese nationals (19 percent).

The number of Malaysian nationals at the AAT have subsequently grown in absolute numbers but fallen in proportionate terms. By September 2023, there were 14,838 Malaysian nationals at the AAT and they represented 35.9 percent of the AAT’s asylum caseload.

The number of Chinese nationals in the AAT’s asylum caseload have grown in both absolute (9,218) and proportionate terms (22.3 percent).

Between June 2020 and September 2023, other nationalities with very high refusal rates (generally over 90 percent) have also emerged in the AAT’s asylum caseload including:

  • Vietnam growing from 1,510 (6 percent) in June 2020 to 2,619 (6.3 percent);
  • India growing from 658 (2 percent) in June 2020 to 2,223 (5.4 percent);
  • Thailand growing in absolute terms from 1,503 (6 percent) in June 2020 to 1,766 (4.3 percent) but falling in proportionate terms; and
  • Indonesia growing from 436 (2 percent) in June 2020 to 1,544 (3.7 percent).

But the most surprising growth in the asylum caseload at the AAT has been from Pacific Island nations including:

  • Fiji – 1,334 (3.2 percent);
  • Timor – 736 (1.8 percent);
  • Tonga – 452 (1.1 percent);
  • Solomon Islands – 225 (0.5 percent);
  • Vanuatu – 203 (0.5 percent); and
  • Samoa – 200 (0.5 percent).

This growth has been due to the poor design of the Pacific Australia Labour Mobility (PALM) visa and the new lottery based Pacific Engagement Visa (PEV) providing a pathway to permanent residence. Unfortunately, very few PALM visa holders are likely to win a lottery place in the PEV which will increase frustration and anger amongst PALM workers – and a consequent desire to continue to use asylum as the means to run away from their often exploitative employers and extend stay in Australia with work rights.

The rate at which PALM visa holders are running away from their employers and applying for asylum is a sure sign of poor visa design and administration.

Government asylum management strategy

The Government has recently allocated $160 million over 4 years to get the asylum caseload under some control (or at least stop it from growing further). That includes $58 million for the AAT and the Federal Court and another $48 million for asylum lawyers. Crucial questions that arise with the Government’s strategy include:

  • Will the additional funding be sufficient to enable the required level of faster processing at both the primary and AAT stages to discourage unmeritorious asylum applications?
  • Will the additional $50 million over four years for immigration compliance enable a sufficient increase in removal of unsuccessful asylum seekers noting that there are over 34,000 asylum seekers still in Australia who have been refused by the AAT?
  • Will the additional funding for asylum lawyers enable faster processing of meritorious cases or will that be used disproportionately for unmeritorious cases thus obstructing the Government’s strategy?

We should start to get some evidence around this over the next 6 months.

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