Part 7Members of the Tribunal and Chief Executive Officer and Principal Registrar

Part 7—Members of the Tribunal and Chief Executive Officer and Principal Registrar   28  President of the Tribunal The person who was the President of the AAT immediately before the transition time:  (a) becomes the President of the ART at the transition time; and  (b) holds office as the President of the ART for the remainder of the term for which the person was appointed as President of the AAT. 29  Deputy Presidents who are judges A person who was both a judge and a Deputy President of the AAT immediately before the transition time:  (a) becomes a Judicial Deputy President of the ART at the transition time; and  (b) holds office as a Judicial Deputy President for the remainder of the term for which the person was appointed as Deputy President of the AAT. 30  AAT members—certain appointments on or after 1 January 2023  (a) a person was a member of the AAT immediately before the transition time; and  (b) the person is not covered by a previous provision of this Part; and  (c) the person was appointed as a member of the AAT:  (i) on or after 1 January 2023; and  (ii) as a result of a selection process conducted in accordance with the Guidelines for appointments to the Administrative Appeals Tribunal. (2) At the transition time, the person becomes:  (a) if the person was a Deputy President but not a judge—a Non‑Judicial Deputy President of the ART; or  (b) if the person was a senior member (level 1 or 2)—a senior member of the ART; or  (c) if the person was a member (level 1, 2 or 3)—a general member of the ART. (3) If the person was a full‑time member, the person becomes a salaried member of the ART. (4) If the person was a part‑time member, the person becomes a sessional member of the ART. (5) The person is taken to be appointed to the ART for the remainder of the term for which the person was appointed as a member of the AAT. (6) For the remainder of that term, the terms and conditions (including remuneration) of the person’s appointment to the ART must be equal to, or better than, the terms and conditions that applied to the person as a member of the AAT immediately before the transition time. Note: The person’s remuneration will not be better than their remuneration as a member of the AAT unless a higher level of remuneration is determined by the Remuneration Tribunal. (7) If, immediately before the transition time, the person was a member of the AAT, the person may be reappointed as a member of the ART as if the person’s appointment as a member of the AAT were an appointment as a member of the ART. (8) To avoid doubt, any leave entitlements the person had accrued immediately before the transition time as a member of the AAT continue in effect for the person as member of the ART. 31  AAT members appointed as ART members  (a) a person was a full‑time member of the AAT immediately before the transition time; and  (b) the person is not covered by a previous provision of this Part; and  (c) the person is (or is to be) appointed as a member of the ART commencing at, or immediately after, the transition time. (2) The person’s remuneration:  (a) if the remainder of the term for which the person was appointed as a member of the AAT is 4 months or more—for the first 4 months as a member of the ART must not be less than the amount of remuneration the person would have received if the person had continued as a member of the AAT for those 4 months; or  (b) if the remainder of the term for which the person was appointed as a member of the AAT is less than 4 months—for the period of that remaining term after the transition time as a member of the ART must not be less than the amount of remuneration the person would have received as a member of the AAT for that period. (3) No other compensation is payable by the Commonwealth in relation to the person’s appointment as a member of the AAT. (4) Any leave entitlements the person had accrued immediately before the transition time as a member of the AAT continue in effect for the person as member of the ART. (5) Subitem (4) has effect:  (a) despite subsection 30(3) of the Remuneration Tribunal (Judicial and Related Offices—Remuneration and Allowances) Determination (No. 2) 2023; but  (b) subject to subitem (6). Election to have leave paid (6) The person may elect to have any leave entitlements the person had accrued immediately before the transition time as a member of the AAT paid out in accordance with subsection 30(3) of the Remuneration Tribunal (Judicial and Related Offices—Remuneration and Allowances) Determination (No. 2) 2023. (7) The election must be:  (a) in writing; and  (b) signed by the person; and  (c) given to the Registrar of the AAT no later than 21 days before the transition time. (8) To avoid doubt:  (a) the amount mentioned in subitem (2) is to be calculated by reference to the person’s remuneration immediately before the transition time; and  (b) the Remuneration Tribunal (Compensation for Loss of Office for Holders of Certain Public Offices) Determination 2018 does not apply in relation to the person’s appointment as a member of the AAT. 32  AAT members not appointed as ART members  (a) a person was a full‑time member of the AAT immediately before the transition time; and  (b) the person is not covered by a previous provision of this Part. (2) The Commonwealth must pay the person compensation as follows:  (a) if, at the transition time, the remainder of the term for which the person was appointed as a member of the AAT is 4 months or more—an amount equal to 4 months remuneration;  (b) if, at the transition time, the remainder of the term for which the person was appointed as a member of the AAT is less than 4 months—the amount the person would have received as remuneration for the remainder of that term. (3) No other compensation is payable by the Commonwealth in relation to the person’s appointment as a member of the AAT. (4) To avoid doubt:  (a) the amount mentioned in paragraph (2)(a) or (b) is to be calculated by reference to the person’s remuneration immediately before the transition time; and  (b) the Remuneration Tribunal (Compensation for Loss of Office for Holders of Certain Public Offices) Determination 2018 does not apply in relation to the person’s appointment as a member of the AAT. 33  Compensation  (a) apart from this item, the operation of this Part would result in the acquisition of property from a person otherwise than on just terms; and  (b) the acquisition would be invalid because of paragraph 51(xxxi) of the Constitution; the Commonwealth is liable to pay a reasonable amount of compensation to the person. (2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia or the Supreme Court of a State or Territory for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines. (3) In this item: acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution. just terms has the same meaning as in paragraph 51(xxxi) of the Constitution. 33A  Appointments to commence at or shortly after the transition time AAT President to be consulted on member appointments before transition time (1) Subitems (2) and (3) apply to any appointment of a person made in the exercise before the transition time of a power conferred by section 206, 207 or 208 of the new Act. (2) Paragraphs 206(2)(b), 207(2)(a) and 208(2)(a) of the new Act do not apply to the appointment of the person. (3) Before the Minister makes a recommendation to the Governor‑General to appoint the person, the Minister must seek, and take into account, the advice of the President of the AAT in relation to:  (a) whether the appointment would meet the operational needs of the Tribunal; and  (b) unless the appointment is as a Judicial Deputy President—the financial capacity of the Tribunal for the appointment; and  (c) the effect of the appointment on the relative numbers of Judicial Deputy Presidents, Non‑Judicial Deputy Presidents, senior members and general members. Members assessed before the transition time (4) Paragraphs 207(2)(b) and 208(2)(b) of the new Act do not apply to the appointment of a person assessed as suitable for the appointment through a selection process that:  (a) is conducted in accordance with the Guidelines for appointments to the Administrative Appeals Tribunal; and  (b) commences on or after 1 July 2023. Note: For appointment of non‑judicial members, the Guidelines require public advertising of the position and an assessment, by a panel of persons, of candidates’ suitability for the appointment against core selection criteria. (5) Subitem (4) ceases to be in force 6 months after the transition time. AAT President’s agreement required for appointment of Chief Executive Officer and Principal Registrar before transition time (6) Subitems (7) and (8) apply to any appointment of a person made in the exercise before the transition time of the power conferred by section 227 of the new Act. (7) Paragraph 227(2)(c) of the new Act does not apply to the appointment of the person. (8) Before the Minister makes a recommendation to the Governor‑General to appoint the person, the Minister must obtain the agreement of the President of the AAT to the appointment. Chief Executive Officer and Principal Registrar assessed before the transition time (9) Paragraph 227(2)(b) of the new Act does not apply to the appointment of a person assessed, by a panel of persons, as suitable for the appointment through a selection process that:  (a) is merit‑based; and  (b) includes public advertising of the position; and  (c) commences on or after 1 February 2024. (10) Subitem (9) ceases to be in force 1 month after the transition time. Part 8—Matters specific to particular Acts Division 1—Migration 34  Definitions In this Division: IAA means the Immigration Assessment Authority. Minister means the Minister administering the Migration Act 1958. 35  Part 7AA fast track review—decision on protection visa application not made before transition time (1) Subitem (2) applies if:  (a) immediately before the transition time, a person was a fast track applicant; and  (b) immediately before that time, a decision under section 65 of the Migration Act 1958 on the person’s application for a protection visa had not been made; and  (c) after the transition time, a decision is made to refuse to grant a protection visa to the person, other than a decision to refuse to grant such a visa:  (i) because the Minister or a delegate of the Minister is not satisfied that the person passes the character test under section 501 of that Act; or  (ii) relying on subsection 5H(2) or 36(1B) or (1C) or paragraph 36(2C)(a) or (b) of that Act. (2) The Minister must refer the decision to refuse to grant the protection visa to the ART as soon as reasonably practicable after the decision is made. (3) If the Minister refers a decision to the ART under subitem (2):  (a) the person is taken to have made an application to the ART under section 347 of the Migration Act 1958 (as amended by Schedule 2 to this Act) for a review of a reviewable protection decision; and  (b) the application is taken to have been properly made under sections 347 and 347A of that Act (as amended by Schedule 2 to this Act). 36  Part 7AA fast track review—decision not made by IAA before transition time  (a) before the transition time, a fast track reviewable decision had been referred or remitted to the IAA for review; and  (b) immediately before that time, the IAA had not made a decision on the review. (2) The proceeding for review of the decision must be continued and finalised by the ART. (3) For the purposes of subitem (2), the proceeding is taken to be a proceeding for review of a reviewable protection decision. 37  Part 7AA fast track review—excluded fast track review applicants (1) Subitem (2) applies if:  (a) before the transition time:  (i) a person was an excluded fast track review applicant; and  (ii) a decision had been made to refuse to grant a protection visa to the person, other than a decision to refuse to grant such a visa on the grounds mentioned in subparagraph 35(1)(c)(i) or (ii); and  (b) after the transition time:  (i) a court remits the decision to the Minister; and  (ii) a decision has been made to refuse to grant a protection visa to the person, other than a decision to refuse to grant such a visa on the grounds mentioned in subparagraph 35(1)(c)(i) or (ii). (2) The Minister must refer the decision to refuse to grant the protection visa to the ART as soon as reasonably practicable after the decision is made. (3) If the Minister refers a decision to the ART under subitem (2):  (a) the person is taken to have made an application to the ART under section 347 of the Migration Act 1958 (as amended by Schedule 2 to this Act), for a review of a reviewable protection decision; and  (b) the application is taken to have been properly made under sections 347 and 347A of that Act (as amended by Schedule 2 to this Act). 38  Minister may substitute a more favourable decision The Minister may exercise a power conferred by section 351 of the Migration Act 1958 on or after the transition day in relation to a decision made by the AAT before the transition day under section 349 or 415 of that Act. 39  Date of migration decision (1) This item applies if, immediately before the transition time, a particular date was, for a migration decision, the date of the migration decision for the purposes of section 477, 477A or 486A of the Migration Act 1958. (2) That particular date continues to be the date of the migration decision for the purposes of the relevant section on and after the transition time, despite the amendment of the definition of date of the migration decision in subsection 477(3) of the Migration Act 1958 made by Schedule 2 to this Act. 40  Section 486D of the Migration Act 1958  For the purposes of the operation of section 486D of the Migration Act 1958 on and after the transition time, a reference to a tribunal decision includes a reference to a decision made before the transition time by:  (a) the AAT under Part 5 or 7 or section 500 of that Act; or  (b) the Immigration Assessment Authority under Part 7AA of that Act. 41  Delegation For the purposes of section 496 (delegation) of the Migration Act 1958, the Minister’s powers under this Schedule are taken to be powers under that Act. 42  Applications that are finally determined The amendments made by Schedule 2 to this Act do not apply in relation to an application under the Migration Act 1958 if the application was finally determined before the transition time.