(6) Subsections 34(2) and (3) (information to include in applications and validity) of the ART Act do not apply to an application to the ART for review of a reviewable migration decision or a reviewable protection decision.
(7) Paragraph (2)(c) has effect despite any rules made for the purposes of section 296 (Tribunal may charge fees) of the ART Act to the extent those rules relate to applications to the ART for review of reviewable migration decisions or reviewable protection decisions.
347A Who can apply for ART review etc.
(1) An application for review of a reviewable migration decision may only be made by:
(a) for a decision covered by subsection 338(2), (3), (3A), (4) or (7A)—the non‑citizen who is the subject of that decision; or
(b) for a decision covered by subsection 338(5) or (8)—the sponsor or nominator referred to in the subsection concerned; or
(c) for a decision covered by subsection 338(6) or (7)—the relative referred to in the subsection concerned; or
(d) for a decision covered by subsection 338(9)—the person prescribed in respect of the kind of decision in question prescribed for the purposes of that subsection.
Note: Section 5G may be relevant for determining family relationships for the purposes of paragraph (c) of this subsection.
(2) If the reviewable migration decision is covered by subsection 338(2), (3), (3A) or (4), an application for review may only be made by a non‑citizen who is physically present in the migration zone when the application for review is made.
(3) If the reviewable migration decision is covered by subsection 338(7A), an application for review may only be made by a non‑citizen who:
(a) was physically present in the migration zone at the time when the decision was made; and
(b) is physically present in the migration zone when the application for review is made.
(4) An application for review of a reviewable protection decision may only be made by the non‑citizen who is the subject of the decision.
(5) An application for review of a reviewable protection decision may only be made by a non‑citizen who is physically present in the migration zone when the application for review is made.
(6) This section has effect despite section 17 (who can apply) and section 35 (applications may be made on behalf of a person) of the ART Act.
348 ART to review reviewable migration decisions and reviewable protection decisions
(1) If an application to the ART for review of a reviewable migration decision or a reviewable protection decision is properly made under sections 347 and 347A, the ART must review the decision.
Note: The ART has no jurisdiction to review a decision if the application for review is not properly made.
(2) However, the ART must not review, or continue to review, a reviewable migration decision or a reviewable protection decision in relation to which the Minister has issued a conclusive certificate under section 339.
348A Parties to a proceeding for review
(1) The Minister is taken to be a non‑participating party to a proceeding for review of a reviewable migration decision or a reviewable protection decision for the purposes of the ART Act, other than in relation to a guidance and appeals panel proceeding.
(2) Despite paragraph 22(1)(c) of the ART Act, a person cannot apply to the ART to become a party to the proceeding for review of a reviewable migration decision or a reviewable protection decision.
(3) The Minister:
(a) cannot give a notice to the ART under section 62 (Tribunal may allow non‑participating party to participate) of the ART Act; and
(b) cannot give written submissions in relation to the proceeding under subsection 63(1) of the ART Act.
(4) An order under subsection 63(2) of the ART Act can only be made by the President or a Deputy President of the ART in relation to a proceeding for review of a reviewable migration decision or a reviewable protection decision.
(5) Rules made for the purposes of subsection 64 (rules may deal with elections in relation to participation) of the ART Act do not apply in relation to a proceeding for review of a reviewable migration decision or a reviewable protection decision.
349 Remittal
(1) Subparagraph 105(c)(ii) of the ART Act does not apply in relation to a reviewable migration decision or a reviewable protection decision.
(2) If a reviewable migration decision or reviewable protection decision relates to a prescribed matter, the ART may, under this subsection:
(a) set aside the decision; and
(b) remit the matter for reconsideration in accordance with such orders or recommendations of the ART as are permitted by the regulations.
(3) Paragraph (2)(a) of this section applies despite subsection 31(1) (decision cannot be altered outside Tribunal process) of the ART Act.
350 Review of assessments made under section 93
(1) In reviewing an assessment of the Minister under section 93, the only regulations for the purpose of that section which the ART is to have regard to are whichever of the following are more favourable to the applicant:
(a) the regulations for that purpose that were in force at the time the assessment was made by the Minister;
(b) the regulations for that purpose that are in force at the time the decision was made by the ART about the assessment.
(2) In determining whether the regulations mentioned in paragraph (1)(a) or (1)(b) are more favourable to the applicant, the only applicable pass mark and applicable pool mark that the ART may have regard to are:
(a) in relation to regulations covered by paragraph (1)(a)—the applicable pass mark and the applicable pool mark that applied at the time the assessment was made by the Minister; and
(b) in relation to regulations covered by paragraph (1)(b)—the applicable pass mark and the applicable pool mark that applied at the time the decision is made by the ART about the assessment.
351 Minister may substitute more favourable decision
(1) If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the ART referred to in subsection (1A) another decision, being a decision that is more favourable to the applicant, whether or not the ART had the power to make that other decision.
(1A) For the purposes of subsection (1), the decisions are as follows:
(a) a decision under section 349 of this Act;
(b) a decision under section 368C of this Act;
(c) a decision under section 105 of the ART Act.
(2) In exercising the power under subsection (1), the Minister is not bound by Subdivision AA or AC of Division 3 of Part 2 or by the regulations, but is bound by all other provisions of this Act.
(3) The power under subsection (1) may only be exercised by the Minister personally.
(4) If the Minister substitutes a decision under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that:
(a) sets out the decision of the ART; and
(b) sets out the decision substituted by the Minister; and
(c) sets out the reasons for the Minister’s decision, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest.
(5) A statement made under subsection (4) in relation to a reviewable migration decision is not to include:
(a) the name of the applicant; or
(b) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person.
(5A) A statement made under subsection (4) in relation to a reviewable protection decision is not to include:
(a) the name of the applicant; or
(b) any information that may identify the applicant; or
(c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person.
(6) A statement under subsection (4) is to be laid before each House of the Parliament within 15 sitting days of that House after:
(a) if the decision is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
(b) if a decision is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
(7) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.
352 ART to notify Secretary of application for review
(1) If an application for review of a reviewable migration decision or a reviewable protection decision is made to the ART, the ART must, as soon as practicable, give the Secretary written notice of the making of the application.
(2) Subject to subsection (3), the Secretary must, within 10 working days after being notified of the application, give to the ART the prescribed number of copies of a statement about the decision under review that:
(a) sets out the findings of fact made by the person who made the decision; and
(b) refers to the evidence on which those findings were based; and
(c) gives the reasons for the decision.
(3) If the application is for review of a decision covered by subsection 338(4) (certain bridging visa decisions), the Secretary must comply with the requirements of subsection (2) within 2 working days after being notified of the application.
(4) The Secretary must, as soon as is practicable after being notified of the application, give to the ART each other document, or part of a document, that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review of the decision.
Division 3—ART powers
353 ART may require Secretary to arrange for investigations etc.
(1) For the purpose of the review of a decision, the ART may require the Secretary to arrange for the making of any investigation, or any medical examination, that the ART considers necessary with respect to the review, and to give to the ART a report of that investigation or examination.
(2) This section applies in addition to, and does not limit, the ART’s powers under the ART Act (as modified by this Act).
Division 4—Conduct of ART review
357A Exhaustive statement of natural justice hearing rule
(1) The relevant provisions are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
(2A) If there is any inconsistency between the relevant provisions and any of the following provisions of the ART Act, the relevant provisions prevail to the extent of the inconsistency:
(a) section 49 (Tribunal has discretion in relation to procedure);
(b) section 50 (Tribunal is to act informally etc.);
(c) section 53 (Tribunal controls scope of review of decision);
(d) section 55 (right to present case).
Note: The ART Act generally applies in relation to reviews by the ART (see subsection 336P(1)).
(2B) Without limiting subsection (2A), paragraph 55(1)(b) of the ART Act does not apply in relation to a review of a reviewable migration decision or a reviewable protection decision.
(2C) As an exhaustive statement of the requirements of the natural justice hearing rule, the relevant provisions do not require the ART to observe any principle or rule of common law relating to the matters the relevant provisions deal with.
(2D) In this section, the relevant provisions are:
(a) this Division; and
(b) sections 374, 375, 375A and 376 and Division 7, in so far as they relate to this Division.
(3) In applying this Division, the ART must act in a way that is fair and just.
359A Information and invitation given by ART
(1) Subject to subsection (2), the ART must:
(a) give to the applicant, in the way that the ART considers appropriate in the circumstances, clear particulars of any information that the ART considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on it.
(2) If the information or invitation is given to the applicant in writing, the information and invitation must be given:
(a) except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(4) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non‑disclosable information; or
(d) that was included, or referred to, in the written statement of the decision that is under review; or
(e) that is prescribed by regulation for the purposes of this paragraph.
(4A) The ART is not required to give particulars of information mentioned in subsection (4) to the applicant before making a decision on the application under section 105 of the ART Act or section 349 of this Act.
(5) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 368C(6).
362A Applicant entitled to have access to written material before Tribunal
(1) Subject to subsections (2) and (3) of this section and sections 375A and 376, the applicant is entitled to request the Department provide access to any written material, or a copy of any written material, given or produced to the ART by the Department for the purposes of the review.
(1A) If an applicant makes a request under subsection (1), the Department must provide the applicant with access to the material.
(2) This section does not override any requirements of the Privacy Act 1988. In particular, this section is not to be taken, for the purposes of that Act, to require or authorise the disclosure of information.
(3) This section does not apply if the ART has given the applicant a copy of the statement required by subsection 368(1).
363 Reviews may be combined
The ART may combine the reviews of 2 or more reviewable migration decisions or reviewable protection decisions made in respect of the same person.
366D Examination and cross‑examination not permitted
A person is not entitled to examine or cross‑examine any person appearing before the ART to give evidence.
367 Certain bridging visa decisions—to be made within prescribed period
(1) Subject to subsection (2), if the application is for review of a decision covered by subsection 338(4) (certain bridging visa decisions), the ART must make its decision on review, and notify the applicant of the decision, within the prescribed period.
(2) The ART may, with the agreement of the applicant, extend the period in subsection (1) for the purposes of a particular application.
367A How ART is to deal with new claims or evidence in review of reviewable protection decisions
(1) This section applies if, in relation to an application for review of a reviewable protection decision (the primary decision), the applicant:
(a) raises a claim that was not raised before the primary decision was made; or
(b) presents evidence in the application that was not presented before the primary decision was made.
(2) In making a decision on the application, the ART is to draw an inference unfavourable to the credibility of the claim or evidence if the ART is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.
367B Certain ART proceedings must be in private
The hearing of a proceeding (within the meaning of the ART Act) for the review of a reviewable protection decision must be in private.
Note: Section 69 of the ART Act, which generally requires hearings to be in public, applies to hearings of proceedings for the review of reviewable migration decisions.
Division 5—ART decisions
368 ART’s decision and written statement etc.
Written statement must be made
(1) If the ART makes a decision on a review, the ART must make a written statement that:
(a) sets out the decision of the ART on the review; and
(b) includes a statement of reasons (within the meaning of the ART Act) for the ART’s decision; and
(c) in the case of a decision under paragraph 368C(3)(b) or subsection 368C(5) to confirm the dismissal of an application—indicates that, under subsection 368C(6), the decision under review is taken to be affirmed; and
(d) records the day and time the statement is made.
(2) Subsection (1) is subject to:
(a) paragraphs 375A(2)(b) and 376(3)(b) of this Act; and
(b) sections 70 (Tribunal may restrict publication or disclosure of information) and 91 (disclosure of information—public interest certificate) of the ART Act.
Certain decisions may be given orally before written statement made
(3) Subject to subsection 368C(7), the ART may give a decision on a review and the reasons for the decision orally before making the written statement.
Note: Decisions made under paragraph 368C(3)(b) or subsection 368C(5) cannot be given orally (see subsection 368C(7)).
(4) If subsection (3) applies, the ART must identify, and make a written record of, the day and time the decision is given orally.
Decision cannot be changed
(5) The ART has no power to vary or revoke the decision after: