(a) if the decision on a review is given to the applicant orally before making the written statement—the day and time the decision is given orally; or
(b) otherwise—the day and time the written statement under subsection (1) is made.
When decision taken to have been made
(6) If the decision is not given to the applicant orally before the written statement is made, the decision is taken to have been made:
(a) by the making of the written statement; and
(b) on the day, and at the time, the written statement is made.
(7) If the decision is given to the applicant orally before the written statement is made, the decision is taken to have been made, and notified to the applicant, on the day and at the time the decision is given orally to the applicant.
Validity etc. not affected by procedural irregularities
(8) The validity of a decision on a review, and the operation of subsection (5), are not affected by:
(a) a failure to record, under paragraph (1)(d), the day and time when the written statement was made; or
(b) a failure to identify or record, under subsection (4), the day and time when the decision was given orally.
Interaction with the ART Act
(9) This section applies despite sections 111 (notice of decision and statement of reasons—review of reviewable decision) and 112 (notice of decision and statement of reasons—other proceedings) of the ART Act.
368A Notification of ART’s decision
(1) The ART must notify the applicant of a decision on a review by giving the applicant a copy of the written statement made under subsection 368(1).
(2) The copy must be given to the applicant:
(a) within 14 days after the day on which the decision is taken to have been made; and
(b) by one of the methods specified in section 379A.
(3) A copy of that statement must also be given to the Secretary within 14 days after the day on which the decision is taken to have been made.
(4) A failure to comply with this section in relation to a decision on a review does not affect the validity of the decision.
(5) This section applies despite subsection 111(3) and section 112 (notice of decision and statement of reasons—other proceedings) of the ART Act.
368B Notice of dismissal and reinstatement decisions and when taken to have been made
Decisions to which this section applies
(1) This section applies in relation to the following decisions:
(a) a decision under the ART Act to dismiss an application for review of a reviewable migration decision or a reviewable protection decision;
(b) a decision under 368C of this Act to reinstate an application.
Written statement
(2) The ART must make a written statement that:
(a) sets out the decision of the ART; and
(b) records the day and time the statement is made.
(3) The decision is taken to have been made:
(a) by making the written statement; and
(b) on the day and at the time the written statement is made.
(4) The ART has no power to vary or revoke the decision after the day and time the written statement is made.
Note: However, if the application is reinstated, the application is taken never to have been dismissed (see subsection 368C(4)).
Notice to applicant
(5) The ART must notify the applicant of the decision by giving the applicant a copy of the written statement made under subsection (2). The copy must be given to the applicant:
(a) within 14 days after the day on which the decision is taken to have been made; and
(b) by one of the methods specified in section 379A.
Notice to Secretary
(6) A copy of the written statement made under subsection (2) must also be given to the Secretary within 14 days after the day on which the decision is taken to have been made
Validity etc. not affected by procedural irregularities
(7) The validity of a decision to which this section applies, and the operation of subsection (4), are not affected by:
(a) a failure to record, under paragraph (2)(b), the day and time when the written statement was made; or
(b) a failure to comply with subsection (5) or (6).
Interaction with ART Act
(8) This section applies despite section 112 (notice of decision and statement of reasons—other proceedings) of the ART Act.
368C Reinstatement of application or confirmation of dismissal
(1) This section, instead of section 102 of the ART Act, applies if the ART dismisses an application for review of a reviewable migration decision or a reviewable protection decision.
(2) If the dismissal is made under one of the following provisions of the ART Act, the applicant may, within 28 days after receiving notice of the decision under subsection 368B(5), apply to the ART for reinstatement of the application:
(a) section 99 (Tribunal may dismiss application if applicant does not appear);
(b) section 100 (Tribunal may dismiss application if applicant fails to comply with order etc.);
(c) section 101 (Tribunal may dismiss application if frivolous, vexatious etc.).
Note: Section 379C sets out when a person is taken to have received a document from the ART for the purposes of this Part.
(3) On application for reinstatement in accordance with subsection (2), the ART must:
(a) if it considers it appropriate to do so—reinstate the application by written statement under 368B; or
(b) confirm the decision to dismiss the application, by written statement under section 368.
Note 1: The ART must, under section 368B, notify the applicant of the decision to reinstate the application.
Note 2: The ART must, under section 368A, notify the applicant of the decision to confirm the decision to dismiss the application.
(4) If the ART reinstates the application:
(a) the application is taken never to have been dismissed; and
(b) the ART must conduct (or continue to conduct) the review accordingly.
(5) If the applicant fails to apply for reinstatement within the 28‑day period mentioned in subsection (2), the ART must confirm the decision to dismiss the application, by written statement under section 368.
Note: Under section 368A, the ART must notify the applicant of a decision to confirm the dismissal of the application.
(6) If the ART confirms the decision to dismiss the application, the decision under review is taken to be affirmed.
(7) The ART cannot give a decision orally under subsection (3) or (5).
369 Identifying information relating to reviewable protection decisions not to be published
(1) This section applies to reviewable protection decisions.
(2) The ART must not publish information under section 113 of the ART Act which may identify:
(a) an applicant for review of a decision; or
(b) any relative or other dependant of an applicant for review of a decision.
Division 6—Other matters
374 How the ART must give certain notices and directions to an applicant
Notification of case event
(1) If the ART gives a written notice to an applicant for review of a reviewable migration decision or a reviewable protection decision under subsection 72(1) of the ART Act, the ART must give the notice to the applicant:
(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.
Directions in relation to procedure
(2) If the ART gives a direction in relation to the procedure to be followed for a proceeding for review of a reviewable migration decision or a reviewable protection decision under subsection 79(1) of the ART Act:
(a) the direction must be given to the applicant in writing; and
(b) the ART must give the direction to the applicant:
(i) except where subparagraph (ii) applies—by one of the methods specified in section 379A; or
(ii) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
375 Restrictions on disclosure of certain information etc.
In spite of anything else in this Act or the ART Act, the Secretary shall not give to the ART a document, or information, if the Minister certifies, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest:
(a) because it would prejudice the security, defence or international relations of Australia; or
(b) because it would involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet.
375A Certain information only to be disclosed to ART
(1) This section applies to a document or information if the Minister:
(a) has certified, in writing, that the disclosure, otherwise than to the ART, of any matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 375(a) or (b)); and
(b) has included in the certificate a statement that the document or information must only be disclosed to the ART.
(2) If, pursuant to a requirement of or under this Act or the ART Act, the Secretary gives to the ART a document or information to which this section applies:
(a) the Secretary must notify the ART in writing that this section applies to the document or information; and
(b) the ART must do all things necessary to ensure that the document or information is not disclosed to any person other than an ART member of the ART as constituted for the purposes of the particular review.
376 ART’s discretion in relation to disclosure of certain information etc.
(1) This section applies to a document or information if:
(a) the Minister:
(i) has certified, in writing, that the disclosure of any matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 375(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; and
(ii) has not included a statement in the certificate that the document or information must only be disclosed to the ART; or
(b) the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence and section 375A does not apply to the document or information.
(2) Where, pursuant to a requirement of or under this Act or the ART Act, the Secretary gives to the ART a document or information to which this section applies, the Secretary:
(a) shall notify the ART in writing that this section applies in relation to the document or information; and
(b) may give the ART any written advice that the Secretary thinks relevant about the significance of the document or information.
(3) Where the ART is given a document or information and is notified that this section applies in relation to it, the ART:
(a) may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and
(b) may, if the ART thinks it appropriate to do so having regard to any advice given by the Secretary pursuant to subsection (2), disclose any matter contained in the document, or the information, to the applicant or to any other person who has given oral or written evidence to the ART.
378 Protected information and documents
(1) An entrusted person must not be required to produce or disclose a protected document, or protected information, to a parliament if:
(a) the document or information relates to a reviewable protection decision; and
(b) the production or disclosure is not necessary for the purposes of carrying into effect the provisions of the ART Act or another enactment conferring powers on the ART.
(2) Subsection (1) applies despite subsection 274(1) of the ART Act.
(3) In this section:
entrusted person has the same meaning as in the ART Act.
parliament means:
(a) a House of the Parliament of the Commonwealth, of a State or of a Territory; or
(b) a committee of a House or the Houses of the Parliament of the Commonwealth, of a State or of a Territory.
protected document has the same meaning as in the ART Act.
protected information has the same meaning as in the ART Act.
Division 7—Giving and receiving documents
379AA Giving documents by ART where no requirement to do so by specified method
(1) If:
(a) a provision of this Act, regulations made under this Act, or the ART Act (as modified by this Act) requires or permits the ART to give a document to a person (other than the Secretary); and
(b) the provision does not state that the document must be given:
(i) by one of the methods specified in section 379A; or
(ii) by a method prescribed for the purposes of giving documents to a person in immigration detention;
the ART may give the document to the person by any method that it considers appropriate (which may be one of the methods mentioned in subparagraph (b)(i) or (ii) of this section).
Note 1: If 2 or more persons apply for a review of a decision together, a document given to a person is taken to be given to each of them, see section 379EA.
Note 2: Under section 379G an applicant may give the ART the name of an authorised recipient who is to receive documents on the applicant’s behalf.
Note 3: ART practice directions apply in relation to the giving of documents to the Secretary.
(2) If a person is a minor, the ART may give a document to an individual who is at least 18 years of age if an ART member, the ART Principal Registrar or a member of the staff of the ART reasonably believes that:
(a) the individual has day‑to‑day care and responsibility for the minor; or
(b) the individual works in or for an organisation that has day‑to‑day care and responsibility for the minor and the individual’s duties, whether alone or jointly with another person, involve care and responsibility for the minor.
(2A) However, subsection (2) does not apply if section 379EA (which relates to giving documents in the case of combined applications) applies in relation to the minor.
(3) If the ART gives a document to an individual, as mentioned in subsection (2), the ART is taken to have given the document to the minor. However, this does not prevent the ART giving the minor a copy of the document.
(4) If a provision of the ART Act (other than section 79) permits or requires the ART to make an order, the provision is taken, for the purposes of this section, to be a provision of the ART Act that requires or permits the ART to give a document to a person.
Note: Orders given under section 79 (Tribunal may give directions in relation to procedure for proceeding) of the ART Act are dealt with by section 374 of this Act.
379A Methods by which ART gives documents to a person
Coverage of section
(1) For the purposes of provisions of this Part or the regulations that:
(a) require or permit the ART to give a document to a person (the recipient); and
(b) state that the ART must do so by one of the methods specified in this section;
the methods are as follows.
(1A) If a person is a minor, the ART may use the methods mentioned in subsections (4) and (5) to dispatch or transmit, as the case may be, a document to an individual (a carer of the minor):
(a) who is at least 18 years of age; and
(b) who an ART member, the ART Principal Registrar or a member of the staff of the ART (each of whom is an ART official) reasonably believes:
(i) has day‑to‑day care and responsibility for the minor; or
(ii) works in an or for organisation that has day‑to‑day care and responsibility for the minor and whose duties, whether alone or jointly with another person, involve care and responsibility for the minor.
Note: If the ART gives an individual a document by the method mentioned in subsection (4) or (5), the individual is taken to have received the document at the time specified in section 379C in respect of that method.
(1B) However, subsection (1A) does not apply if section 379EA (which relates to giving documents in the case of combined applications) applies in relation to the minor.
Giving by hand
(2) One method consists of an ART official or a person authorised by the ART Principal Registrar handing the document to the recipient.
Handing to a person at last residential or business address
(3) Another method consists of an ART official or a person authorised by the ART Principal Registrar handing the document to another person who:
(a) is at the last residential or business address provided to the ART by the recipient in connection with the review; and
(b) appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(c) appears to be at least 16 years of age.
Dispatch by prepaid post or by other prepaid means
(4) Another method consists of an ART official dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; and
(c) to:
(i) the last address for service provided to the ART by the recipient in connection with the review; or
(ii) the last residential or business address provided to the ART by the recipient in connection with the review; or
(iii) if the recipient is a minor—the last address for a carer of the minor that is known by the ART official.
Transmission by fax, email or other electronic means
(5) Another method consists of an ART official transmitting the document by:
(a) fax; or
(b) email; or
(c) other electronic means;
to:
(d) the last fax number, email address or other electronic address, as the case may be, provided to the ART by the recipient in connection with the review; or
(e) if the recipient is a minor—the last fax number, email address or other electronic address, as the case may be, for a carer of the minor that is known by the ART official.