Rise in Tribunal applications by employers and employees

by External02 May 2014
Impact of increased Departmental charges and processing times

Latest numbers indicate that by the end of this financial year the Migration Review Tribunal will have received over 3,700 applications from employers and employees aggrieved by Department of Immigration and Border Protection decisions. This will represent an increase of at least 206 per cent, as compared to the 1,796 Tribunal applications lodged in the 2010/2011 financial year. 

Significant increases in Departmental application charges and longer processing times may be two factors which have contributed to the rise in Tribunal applications.

Most organisations use technology to deliver services in a more efficient and cost effective manner. Many thrive on increased volumes, using economies of scale to offer lower prices and faster delivery. Indeed, many migration service providers have embraced technology and economies of scale in this way.

Occasionally however, technology and higher volumes do not translate to lower costs or quicker turnaround. 
Despite moving permanent and temporary employer sponsored applications online, and experiencing increased lodgements (including a 210 per cent increase in 457 lodgements in the 2012/2013 financial year as compared to the 2009/2010 financial year), the Department has not offered lower charges or faster processing times. 

In fact the reverse has occurred: base visa application charges have increased, additional applicant charges have been introduced, subsequent temporary application charges have been added and, as of April 2014, credit card surcharges apply. 
Departmental charges for a 457 temporary residence application in respect of a couple with a child are currently at least $2,688.73, which is 815 per cent higher than the $330 charged four years ago. Over the same period, standard 457 application processing times have risen 250 per cent from around two weeks to five weeks.

In the case of an Employer Nomination Scheme (ENS) permanent residence application for the same family, Departmental charges currently total at least $6,772.36, which is 228 per cent higher than the $2,970 charged four years ago.  Over the same period standard ENS processing times have doubled to around 6 months. 
In light of significant cost increases, and more lengthy processing times, employers and employees facing Departmental decisions unfavourable to them are giving more serious consideration to the option of Tribunal review (rather than, say, withdrawing their applications and re-lodging with the Department).

Charging an application fee of only $1,604 (a fee which has gone up only 15 per cent, or $204, over the last four years, and to which a 50 per cent refund applies if a decision favourable to the applicant is made), the Tribunal’s powers include setting aside Departmental decisions and substituting them with new decisions, as well as remitting applications to the Department with directions that certain criteria are met. While the Tribunal can also affirm Departmental decisions, financial year to date, this has occurred in only 30 per cent of temporary and permanent employer sponsored applications finalised by the Tribunal. 

Aside from not having to repay Departmental application charges, or resit Departmental processing times, employers may be attracted to Tribunal review so as to receive an independent finding on a recurring issue which may be causing them unnecessary costs.  For instance, findings on: whether a particular form of training expenditure may be counted towards the training benchmark, whether the market salary rate is being offered in a particular set of circumstances, or whether the nominated occupation may be amended following application lodgement. 
Importantly, an employee seeking review of a visa refusal decision will generally remain eligible for a bridging visa permitting work during the Tribunal’s review. 

In all cases, employers and employees facing unfavourable Departmental decisions should seek expert advice on the advantages, and prospects of success, associated with Tribunal review. 

Farid Varess