(6) If the ART gives a document to a carer of a minor, 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.
379C When a person other than the Secretary is taken to have received a document from the ART
(1) This section applies if the ART gives a document to a person other than the Secretary by one of the methods specified in section 379A (including in a case covered by section 379AA).
Giving by hand
(2) If the ART gives a document to a person by the method in subsection 379A(2) (which involves handing the document to the person), the person is taken to have received the document when it is handed to the person.
Handing to a person at last residential or business address
(3) If the ART gives a document to a person by the method in subsection 379A(3) (which involves handing the document to another person at a residential or business address), the person is taken to have received the document when it is handed to the other person.
Dispatch by prepaid post or by other prepaid means
(4) If the ART gives a document to a person by the method in subsection 379A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:
(a) if the document was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the document; or
(b) in any other case—21 days after the date of the document.
Transmission by fax, email or other electronic means
(5) If the ART gives a document to a person by the method in subsection 379A(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.
Document not given effectively
(7) If:
(a) the ART purports to give a document to a person in accordance with a method specified in section 379A (including in a case covered by section 379AA) but makes an error in doing so; and
(b) the person nonetheless receives the document or a copy of it;
then the person is taken to have received the document at the times mentioned in this section as if the ART had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at that time.
379EA Giving documents by ART—combined applications
If 2 or more persons apply for a review of a decision together, documents given to any of them in connection with the review are taken to be given to each of them.
Note 1: If the ART gives a person a document by a method specified in section 379A, the person is taken to have received the document at the time specified in section 379C in respect of that method.
Note 2: Section 379G deals with giving documents to a person’s authorised recipient.
379G Authorised recipient
(1) If:
(a) a person (the applicant) applies for review of a reviewable migration decision or a reviewable protection decision; and
(b) the applicant gives the ART written notice of the name and address of another person (the authorised recipient) authorised by the applicant to receive documents in connection with the review;
the ART must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.
Note: If the ART gives a person a document by a method specified in section 379A, the person is taken to have received the document at the time specified in section 379C in respect of that method.
(1A) For the purposes of subsection (1):
(a) paragraph (1)(a) is taken to also apply to an application for review of a reviewable migration decision or a reviewable protection decision where the application is not properly made under section 347 or 347A; and
(b) in connection with such an application, paragraph (1)(b) is taken to apply to a notice of a kind referred to in that paragraph as if the notice authorised the authorised recipient to receive documents in connection with the application (including a document notifying that recipient that the application is not properly made under either or both of those sections).
(2) If the ART gives a document to the authorised recipient, the ART is taken to have given the document to the applicant. However, this does not prevent the ART giving the applicant a copy of the document.
(3) Subject to subsection (3A), the applicant (but not the authorised recipient) may vary or withdraw the notice under paragraph (1)(b) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the applicant’s authorised recipient.
(3A) In addition to the applicant being able to vary the notice under paragraph (1)(b) by varying the address of the authorised recipient, that recipient may also vary that notice by varying that address.
(5) This section does not apply to the ART giving documents to, or communicating with, the applicant when the applicant is appearing before the ART.
Part 8—Judicial review
Division 1—Privative clause
474 Decisions under Act are final
(1) A privative clause decision:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
(2) In this section:
privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4), (4A) or (5).
(3) A reference in this section to a decision includes a reference to the following:
(a) granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination;
(b) granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);
(c) granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;
(d) imposing, or refusing to remove, a condition or restriction;
(e) making or revoking, or refusing to make or revoke, a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article;
(g) doing or refusing to do any other act or thing;
(h) conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;
(i) a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act;
(j) a failure or refusal to make a decision.
(4) For the purposes of subsection (2), a decision under a provision, or under a regulation or other instrument made under a provision, set out in the following table is not a privative clause decision:
Decisions that are not privative clause decisions
Item Provision Subject matter of provision
1A section 140RB Compliance notices for failing to satisfy sponsorship obligations
1 section 213 Liability for the costs of removal or deportation
2 section 217 Conveyance of removees
3 section 218 Conveyance of deportees etc.
4 section 222 Orders restraining non‑citizens from disposing of property
5 section 223 Valuables of detained non‑citizens
6 section 224 Dealing with seized valuables
6A section 245AYP Compliance notices for work‑related breaches
7 section 252 Searches of persons
8 section 259 Detention of vessels for search
9 section 260 Detention of vessels/dealing with detained vessels
10 section 261 Disposal of certain vessels
11 Division 14 of Part 2 Recovery of costs
12 section 269 Taking of securities
13 section 272 Migrant centres
14 section 273 Detention centres
15 Part 3 Migration agents registration scheme
16 Part 4 Court orders about reparation
31 regulation 5.35 Medical treatment of persons in detention
(4A) For the purposes of subsection (2), a decision under subsection 185(1) of the ART Act to refer a question of law arising in a proceeding for review of a reviewable migration decision or a reviewable protection decision to the Federal Court for decision is not a privative clause decision.
(5) The regulations may specify that a decision, or a decision included in a class of decisions, under this Act, or under regulations or another instrument under this Act, or under the ART Act, is not a privative clause decision.
(6) A decision mentioned in subsection (4) or (4A), or specified (whether by reference to a particular decision or a class of decisions) in regulations made under subsection (5), is a non‑privative clause decision.
(7) To avoid doubt, the following decisions are privative clause decisions within the meaning of subsection (2):
(a) a decision of the Minister not to exercise, or not to consider the exercise, of the Minister’s power under subsection 37A(2) or (3), section 48B, paragraph 72(1)(c), section 84B, section 91F, 91L, 91Q, 195A, 197AB, 197AD, 198AE, 199G or 351 or subsection 503A(3);
(d) a decision of the Minister under Division 13A of Part 2 to order that a thing is not to be condemned as forfeited.
Note: Section 91Q was repealed by the Migration Amendment (Giving Documents and Other Measures) Act 2023.
Division 1A—Interaction with the ART Act
474AA Interaction with the ART Act
(1) Part 7 of the ART Act does not apply to an application in relation to, or a proceeding for the review of, any of the following:
(a) a privative clause decision;
(b) a purported privative clause decision;
(c) an ART Act migration decision.
(2) Despite subsection (1):
(a) section 185 (referring questions of law) of the ART Act applies to an application in relation to, or a proceeding for the review of, a reviewable migration decision or a reviewable protection decision; but
(b) the ART does not have a duty to consider a request to refer a question of law at the request of a party to a proceeding.
(2A) To avoid doubt, if the ART refers a question of law under section 185 of the ART Act, Division 6 of Part 7 of that Act applies in relation to the proceeding before the Federal Court in relation to the reference.
(3) Subdivision A of Division 2 of Part 7 of the ART Act (appeals on questions of law) does not apply to a decision of the ART under section 185 of that Act (referring questions of law) in relation to proceedings for review of a reviewable migration decision or a reviewable protection decision.
Division 2—Jurisdiction and procedure of courts
474A Definition of ART Act migration decision
(1) A decision under a provision of the ART Act mentioned in subsection (2) is an ART Act migration decision, to the extent that the decision is made in relation to any of the following:
(a) a review of a particular reviewable migration decision or a particular reviewable protection decision;
(b) a function of the ART in relation to the exercise of its jurisdiction to review reviewable migration decisions or reviewable protection decisions;
(c) an ART member in the Migration jurisdictional area;
(d) an ART member in the Protection jurisdictional area.
Note: An ART Act migration decision is a migration decision (see paragraph (d) of the definition of migration decision in subsection 5(1)).
(2) The provisions of the ART Act are as follows:
(a) Division 3 of Part 4;
(b) Subdivisions A, B and D of Division 4 of Part 4;
(c) section 58;
(d) sections 197 to 199;
(e) Subdivision A of Division 3 of Part 8;
(f) sections 214 to 216;
(g) section 218;
(h) section 221;
(i) section 227;
(j) sections 237 to 239;
(k) section 243.
(l) Divisions 3 and 4 of Part 11.
475 This Division not to limit section 474
This Division is not to be taken to limit the scope or operation of section 474.
476 Jurisdiction of the Federal Circuit and Family Court of Australia (Division 2)
(1) Subject to this section, the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.
(2) The Federal Circuit and Family Court of Australia (Division 2) has no jurisdiction in relation to the following decisions:
(a) a primary decision;
(b) a privative clause decision, or purported privative clause decision, of the ART on review under section 500;
(c) a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B, 501BA, 501C or 501CA;
(ca) a non‑privative clause decision mentioned in subsection 474(4A);
(d) a privative clause decision or purported privative clause decision mentioned in subsection 474(7).
(3) Nothing in this section affects any jurisdiction the Federal Circuit and Family Court of Australia (Division 2) may have in relation to non‑privative clause decisions under section 8 of the Administrative Decisions (Judicial Review) Act 1977 or section 179 of the ART Act.
(4) In this section:
primary decision means a privative clause decision or purported privative clause decision:
(a) that is reviewable under by application under Part 5 or section 500 (whether or not it has been reviewed); or
(b) that would have been so reviewable if an application for such review had been made within a specified period.
476A Limited jurisdiction of the Federal Court
(1) Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if:
(a) both:
(i) the Federal Circuit and Family Court of Australia (Division 2) transfers a proceeding pending in that court in relation to the decision to the Federal Court under section 153 of the Federal Circuit and Family Court of Australia Act 2021; and
(ii) the Federal Court confirms the transfer under section 32AD of the Federal Court of Australia Act 1976; or
(b) the decision is a privative clause decision, or a purported privative clause decision, of the ART on review under section 500; or
(c) the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B, 501BA, 501C or 501CA; or
(d) the Federal Court has jurisdiction in relation to the decision under section 176 (Federal Court has jurisdiction) or subsection 185(3) (referring questions of law) of the ART Act.
Note: The Federal Court’s jurisdiction referred to in paragraph (d) is limited: see section 474AA.
(1A) To avoid doubt, the Federal Court does not have original jurisdiction in relation to a migration decision under subsection (1) in respect of proceedings that are transferred to the Federal Court under section 32AC of the Federal Court of Australia Act 1976.
(2) Where the Federal Court has jurisdiction in relation to a migration decision under paragraph (1)(a), (b) or (c), that jurisdiction is the same as the jurisdiction of the High Court under paragraph 75(v) of the Constitution.
(3) Despite section 24 of the Federal Court of Australia Act 1976, an appeal may not be brought to the Federal Court from:
(a) a judgment of the Federal Circuit and Family Court of Australia (Division 2) that makes an order or refuses to make an order under subsection 477(2); or
(b) a judgment of the Federal Court that makes an order or refuses to make an order under subsection 477A(2).
(4) Despite section 33 of the Federal Court of Australia Act 1976, an appeal may not be brought to the High Court from a judgment of the Federal Court that makes an order or refuses to make an order under subsection 477A(2).
(5) In this section:
judgment has the same meaning as in the Federal Court of Australia Act 1976.
476B Remittal by the High Court
(1) Subject to subsection (3), the High Court must not remit a matter, or any part of a matter, that relates to a migration decision to any court other than the Federal Circuit and Family Court of Australia (Division 2).
(2) The High Court must not remit a matter, or any part of a matter, that relates to a migration decision to the Federal Circuit and Family Court of Australia (Division 2) unless that court has jurisdiction in relation to the matter, or that part of the matter, under section 476.
(3) The High Court may remit a matter, or part of a matter, that relates to a migration decision in relation to which the Federal Court has jurisdiction under paragraph 476A(1)(b) or (c) to that court.
(4) Subsection (1) has effect despite section 44 of the Judiciary Act 1903.
477 Time limits on applications to the Federal Circuit and Family Court of Australia (Division 2)
(1) An application to the Federal Circuit and Family Court of Australia (Division 2) for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The Federal Circuit and Family Court of Australia (Division 2) may, by order, extend that 35 day period as the Federal Circuit and Family Court of Australia (Division 2) considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit and Family Court of Australia (Division 2) specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and