House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Hon Michelle Rowland MP)

GENERAL OUTLINE

1. The Administrative Review Tribunal (Tribunal) is established by the Administrative Review Tribunal Act 2024 (ART Act) and commenced on 14 October 2024.

2. It replaced the former Administrative Appeals Tribunal as Australia's federal administrative review body. The Tribunal conducts merits review of administrative decisions made under a wide range of Commonwealth Acts and instruments. The Tribunal's standard powers and procedures relating to the conduct of review are set out in the ART Act, but are subject to modifications made in other Acts or instruments to adapt the powers and procedures for the unique features of particular caseloads.

3. The Administrative Review Tribunal and Other Legislation Amendment Bill 2025 (Bill) would amend the ART Act and the Migration Act 1958 (Migration Act) to expand the circumstances in which the Tribunal may make a decision without holding an oral hearing, and require the Tribunal to make decisions in relation to certain kinds of applications without holding an oral hearing.

Amendments to the ART Act

4. The Bill would amend section 106 of the ART Act to insert an additional circumstance in which the Tribunal may make its decision in the proceeding without holding the hearing of the proceeding. The additional circumstance is if:

•

it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding

•

it appears to the Tribunal that it is reasonable in the circumstances to make its decision in the proceeding without holding the hearing of the proceeding, and

•

the Tribunal has given the parties to the proceeding (other than a non-participating party) a reasonable opportunity to make submissions to the Tribunal in relation to the Tribunal making its decision without holding the hearing of the proceeding, and the Tribunal has taken into account any submissions received.

5. The new discretion would give the Tribunal additional flexibility in relation to the procedures to be followed in a proceeding. Exercise of the new discretion would be conditioned by appropriate safeguards, to ensure that it would be able to be exercised compatibly with the Tribunal's existing obligation to afford parties an opportunity to present their case. This would support the objective of the Tribunal resolving matters as quickly and with as little formality as a proper consideration of the matter permits, especially given the time and resources required to conduct a substantive hearing.

Amendments to the Migration Act

6. The Bill would amend the Migration Act to require the Tribunal to make decisions in relation to applications for review of certain kinds of reviewable migration decisions on the papers without conducting an oral hearing. Enabling decisions of this kind to be reviewed on the papers would facilitate an efficient and proportionate method of review, while ensuring that genuine applicants are given a meaningful opportunity to present their case to the Tribunal in writing.

7. The new requirement would apply in relation to applications for reviews of decisions to refuse a student visa. Decisions of this kind are appropriate for review without an oral hearing, having regard to the nature of the issues under review, the low volume and complexity of written materials relevant to proceedings of this kind, and the temporary and short-term nature of student visas.

8. The requirement would also apply in relation to applications for review of decisions relating to a temporary visa of a kind prescribed in regulations. This provides flexibility for the Migration Regulations 1994 (Regulations) to prescribe additional kinds of applications relating to temporary visas as being subject to the new requirement for review to be conducted on the papers. It would not be possible for reviews of decisions relating to permanent visas, or reviewable protection decisions (within the meaning of the Migration Act), to be subject to the requirement.

9. Applications which are required to be reviewed on the papers would be subject to a new, bespoke review procedure set out in new Division 4A of Part 5 of the Migration Act. The review would be conducted entirely on the basis of written materials, without the Tribunal holding an oral hearing. The applicant would be given an opportunity to present their case to the Tribunal in writing.

10. The Attorney-General's Department undertook targeted consultation on the proposed policy approach to the Bill with key civil society stakeholders in August 2025.

FINANCIAL IMPACT

11. Nil.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Administrative Review Tribunal and Other Legislation Amendment Bill 2025

12. This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

13. The Administrative Review Tribunal and Other Legislation Amendment Bill 2025 (the Bill) would expand the Administrative Review Tribunal's (Tribunal) ability to determine matters without conducting the hearing of the proceeding.

Amendments to the ART Act

14. This Bill would amend the Administrative Review Tribunal Act 2024 (ART Act) to introduce an additional circumstance in which the Tribunal is able to exercise a discretion to make a substantive decision in a matter without conducting an oral hearing under (except in relation to 'applications to be reviewed on the papers' within the meaning of new Division 4A of Part 5 the Migration Act 1958 (Migration Act)). The additional circumstance is if:

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it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding

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it appears to the Tribunal that it is reasonable in the circumstances to make its decision in the proceeding without holding the hearing of the proceeding, and

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the Tribunal has given the parties to the proceeding (other than a non-participating party) a reasonable opportunity to make submissions to the Tribunal in relation to the Tribunal making its decision without holding the hearing of the proceeding, and the Tribunal has taken into account any submissions received.

15. The new discretion to determine a matter without conducting an oral hearing under the ART Act would need to be exercised consistently with the Tribunal's obligation to afford parties an opportunity to present their case under section 55 of the ART Act.

Amendments to the Migration Act

16. This Bill would amend the Migration Act to introduce a new Division 4A which would require the Tribunal to make a decision on a review of certain kinds of reviewable migration decisions – including applications for review of decisions to refuse to grant a student visa – without conducting an oral hearing in

17. Applications which are required to be reviewed on the papers under new Division 4A would be subject to a new, bespoke review procedure. The review would be conducted entirely on the basis of written materials, without the Tribunal holding an oral hearing or any other Tribunal case event. The applicant would be given an opportunity to present their case to the Tribunal, and would be able to provide new information to the Tribunal, in writing only.

18. The provisions in new Division 4A would constitute an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with. The requirements codify how the Tribunal must give an applicant an opportunity to present their case in relation to certain matters, and how the Tribunal must provide information to the applicant, before proceeding to a decision without holding a hearing.

Human rights implications

19. The Bill engages the following human rights:

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The right of an effective remedy and the right to a fair hearing in Articles 2(3) and 14 of the International Covenant on Civil and Political Rights (ICCPR).

Right of an effective remedy and the right to a fair hearing in Articles 2(3) and 14 of the ICCPR

20. Article 2(3) of the ICCPR provides that States shall undertake to ensure the right to an effective remedy for any violation of rights or freedoms recognised by ICCPR. It includes the right to have a remedy determined by competent judicial, administrative or legislative authorities. This right also encompasses the duty to ensure competent authorities enforce any such remedies when granted.

21. This Bill as a whole promotes the right to an effective remedy by supporting the operation of an administrative review tribunal that conducts quick and efficient tribunal review with as little formality and expense as a proper consideration of the matter requires.

22. Article 14(1) of the ICCPR protects the right that all persons are equal before courts and tribunals. It further provides that every person, in the determination of rights and obligations in a 'suit of law' is entitled to a 'fair and public hearing by a competent, independent and impartial tribunal established by law'. Article 14(1) also recognises that 'the press and public may be excluded from all or part of a trial for reasons of morals, public order (order public) or national security in a democratic society, or when the interest of the private lives of the parties so requires...'.

23. The extent to which Article 14(1) applies to administrative review proceedings (whether such proceedings constitute a 'suit at law') is not fully settled.

Amendments to the ART Act

24. The amendments to the ART Act would promote the right to an effective remedy and right to a fair hearing (to the extent it applies in Tribunal matters) by enabling the Tribunal to exercise discretion as to its procedure, and proceed in the most proportionate way of dealing with a matter, which supports timely receipt of an effective remedy for applicants. The proposed amendments to the ART Act do not limit the Tribunal's ability to afford applicants an effective remedy, or a fair hearing.

25. These amendments would expand the procedural powers that the Tribunal has available to it, such that it is able to exercise its discretion to dispense with the conducting of an oral hearing in a matter. This is consistent with Tribunal's objective at paragraph 9(c) of the ART Act, which requires that the Tribunal ensures that applications to the Tribunal are resolved as quickly, and with as little formality expense, as a proper consideration of the matters before the Tribunal permits.

26. The expanded discretion to determine a matter without conducting an oral hearing would be accompanied by safeguards to ensure that the discretion is exercised in appropriate circumstances. The Tribunal would only be able to exercise the discretion in circumstances where it is satisfied that it would be able to adequately determine the issues for determination without holding an oral hearing, and the exercise of the discretion is reasonable in the circumstances. This recognises that procedural fairness does not require than an oral hearing be conducted in every case.

27. The Tribunal would also be required to exercise this new discretion in accordance with its obligation under the ART Act to ensure that each party to a proceeding is given a reasonable opportunity to present their case, access any information or documents to which the Tribunal proposes to have regard, and make submissions an provide evidence.

Amendments to the Migration Act

28. The amendments to the Migration Act engage the right to an effective remedy and right to a fair hearing (to the extent it applies in Tribunal matters) by defining the applicant's opportunity to be heard on the papers, without an oral hearing, in reviews of certain reviewable migration decisions, including decisions to refuse to grant a student visa.

29. The amendments pursue the legitimate objective of supporting efficient review of such decisions, in light of the significant volume of review applications and the importance for the integrity of Australia's migration system for reviews of visas to be conducted expeditiously. As onshore applicants seeking review of a decision to refuse the grant of a student visa or another kind of temporary visa are entitled to stay in Australia on a bridging visa for the duration of the merits review process, efficient review procedures reduce delays in decision-making, and applicants benefit from timely receipt of an effective remedy.

30. It is appropriate for applications for review of a decision to refuse a student visa to be reviewed on the papers, having regard to the nature of the issues under review, the temporary and short-term nature of a student visa, and the low volume and complexity of written materials relevant to proceedings of this kind. Enabling decisions of this kind to be reviewed on the papers would facilitate an efficient and proportionate method of review, while ensuring that genuine applicants are given a meaningful opportunity to present their case to the Tribunal in writing. To the extent that the amendments limit the right to an effective remedy and right to a fair hearing, this is in pursuit of the legitimate goal of providing a proportionate and efficient method of merits review.

31. As an exhaustive statement of the natural justice hearing rule in relation to the matters it deals with, new Division 4A of Part 5 of the Migration Act provides certainty for applicants and the Tribunal as to the steps that are required in order to conduct a proper review of the matters before it. New Division 4A includes safeguards that ensure that applicants are afforded an opportunity to make their case in writing. These include that:

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applicants are required to be invited to provide written submission and evidence on relevant issues

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the Tribunal is required to give applicants adverse information that would be the reason or part of the reason for affirming the decision under review, and invite them to comment on that information

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the applicant is not limited in the information that they are able to give to the Tribunal in presenting their case in writing

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the Tribunal is required to make its decision after considering any submissions, evidence and comments given by the applicant

32. The nature of the review conducted on the papers will necessarily limit the applicant's opportunity to present their case orally. To the extent that this limits the right to an effective remedy and right to a fair hearing, this is in pursuit of the legitimate goal of proportionate review, and is reasonable, necessary and proportionate.

Conclusion

33. This Bill is compatible with human rights because it promotes the protection of human rights and to the extent that it may limit human rights, those limits are reasonable, necessary and proportionate.

NOTES ON CLAUSES

PRELIMINARY

Clause 1 – Short title

34. This clause would provide for the short title of the Act to be the Administrative Review Tribunal and Other Legislation Amendment Act 2025.

Clause 2 – Commencement

35. This clause would provide for the commencement of each provision in the Act, as set out in the table. Item 1 of the table in this clause would provide that sections 1 to 3 of the Act commence the day the Act receives the Royal Assent. Item 2 would provide that Schedule 1 – which contains the amendments to the Administrative Review Tribunal Act 2024 (ART Act) and the Migration Act 1958 (Migration Act) – commences on a day or days to be fixed by Proclamation.

Clause 3 – Schedules

36. This clause would provide that legislation that is specified within the Schedule to the Act is amended or repealed as set out in the applicable items in the Schedule, and any other item in the Schedule has effect according to its terms.

SCHEDULE 1 – AMENDMENTS

PART 1 – DISCRETION TO DISPENSE WITH HEARING

OUTLINE

37. Currently, before making a decision in a proceeding, the Tribunal is generally required to hold an oral hearing (referred to as the 'hearing of the proceeding': see the definition in section 4 of the ART Act). The limited circumstances in which the Tribunal may make its decision in a proceeding after considering the documents and things given to the Tribunal, and without holding a hearing, are set out in section 106 of the ART Act. Those circumstances are if it appears to the Administrative Review Tribunal (Tribunal) that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding, and one of the following applies:

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all of the parties consent to the proceeding being determined without the Tribunal holding the hearing of the proceeding

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if the only parties are the applicant and a non-participating party – either the decision is wholly in favour of the applicant, or the applicant requests the Tribunal to make its decision without holding the hearing of the proceeding

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a party fails to comply with the ART Act or an order of the Tribunal within a reasonable time, or

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a party (who is not a non-participating party) fails to appear at a Tribunal case event, and the Tribunal is satisfied that the party received appropriate notice of the date, time and place of the Tribunal case event.

38. This Part would amend section 106 of the ART Act to insert an additional circumstance in which the Tribunal may make its decision in the proceeding in relation to an application after considering the documents and things given to the Tribunal, and without holding the hearing of the proceeding. The additional circumstance is if:

•

it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding

•

it appears to the Tribunal that it is reasonable in the circumstances to make its decision in the proceeding without holding the hearing of the proceeding, and

•

the Tribunal has given the parties to the proceeding (other than a non-participating party) a reasonable opportunity to make submissions to the Tribunal in relation to the Tribunal making its decision without holding the hearing of the proceeding, and the Tribunal has taken into account any submissions received.

39. The Tribunal would be able to exercise this new discretion to make a decision without holding a hearing in any proceedings to which section 106 applies. The new discretion would give the Tribunal additional flexibility in relation to the procedures to be followed in a proceeding. It would enable the Tribunal to dispense with a hearing in circumstances where the Tribunal considers it would be appropriate. This would support the objective of the Tribunal resolving matters as quickly and with as little formality as a proper consideration of the matter permits. This recognises that in some circumstances (particularly where the issues to be resolved are objective and can be readily resolved based on documentary evidence) an oral hearing is not necessary to provide procedural fairness and properly determine a matter.

40. The new discretion is conditioned by appropriate safeguards, including a requirement for the Tribunal to seek and consider submissions from the participating parties on whether the Tribunal should make its decision without holding a hearing. The exercise of the new discretion would also be subject to the requirements of section 55 of the ART Act. This means that, before deciding to dispense with an oral hearing, the Tribunal must be satisfied that the parties to the proceeding (other than non-participating parties) have been given a reasonable opportunity to present their case, access any information or documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding, and make submissions and provide evidence to the Tribunal.

41. It is expected that the new discretion would most appropriately be exercised by the Tribunal in circumstances such as where a proceeding involves straightforward facts and issues, or objective criteria, suited to being considered on the basis of written materials.

42. The new discretion would could be exercised in relation to applications that have been made to the Tribunal, but not yet finalised by the Tribunal, before the commencement of the amendments, as well as applications made to the Tribunal after the commencement of the amendments.

Amendments

Administrative Review Tribunal Act 2024

Items 1 and 2: Subsection 106(1), at the end of subsection 106(1)

43. These items would make minor amendments to subsection 106(1) of the ART Act, consequential to the insertion of new subsections 106(6) and (7) by item 3.

44. Item 2 would insert a Note to explain that section 106 does not apply in relation to applications for review of certain kinds of decisions under the Migration Act which are required to be reviewed on the papers. This is consequential to the amendments to the Migration Act that would be made by Part 2 of Schedule 1 to the Bill.

Item 3: At the end of section 106

45. This item would amend section 106 of the ART Act to identify an additional circumstance in which the Tribunal may make a decision after considering the documents and things given to the Tribunal, and without holding the hearing of the proceeding, in accordance with subsection 106(1).

46. The additional circumstance would be set out in new subsection (6). The Tribunal would be able to make a decision in accordance with subsection 106(1) if it appears to the Tribunal that:

•

the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding, and

•

it is reasonable in the circumstances to make its decision in the proceeding without holding the hearing of the proceeding.

47. New subsection (7) would have the effect that the Tribunal cannot make a decision without holding a hearing in the circumstances identified in new subsection (6) unless the Tribunal has given the parties to the proceeding (other than a non-participating party) a reasonable opportunity to make submissions to the Tribunal in relation to the Tribunal making its decision without holding the hearing of the proceeding, and the Tribunal has taken into account any submissions received. This gives the parties an opportunity to be consulted before the Tribunal decides to dispense with an oral hearing. Although the Tribunal must take into account any submissions provided by parties, the Tribunal is not required to obtain parties' agreement in order to exercise the new discretion.

Item 4: Application provision

48. This item would have the effect that the amendments to section 106 apply in relation to applications for review made to the Tribunal on or after the commencement of Part 1 of Schedule 1 to the Bill. The amendments also apply in relation to an application for review made before that commencement, where the Tribunal has not made its decision in the proceeding. This means the Tribunal's new discretion will be available in relation to existing applications that have not been finalised before the commencement of the item.

49. The retroactive application of the amendments – to applications made before the commencement of the amendments, but in relation to which the Tribunal has not yet made its decision in the proceeding – would be appropriate because it enables the Tribunal to have the benefit of the flexibility provided by the new discretion in relation to existing applications. There are safeguards built into the new discretion, including that the Tribunal must seek and consider submissions from parties before deciding to dispense with the hearing of the proceeding. In addition, the retroactive application of these amendments would not substantively affect parties' right to present their case, as the Tribunal would be required to exercise its discretion under new subsection 106(6) consistently with the procedural fairness obligations set out in section 55 of the ART Act.

PART 2 – APPLICATIONS TO BE DETERMINED ON THE PAPERS

OUTLINE

51. This Part would amend the Migration Act to require the Tribunal to make decisions on review of certain kinds of reviewable migration decisions on the papers, without conducting the hearing of the proceeding or otherwise enabling the applicant to appear before the Tribunal.

52. The new requirement would apply in relation to properly made applications for review of decisions to refuse a student visa. The requirement would also apply in relation to properly made applications for review of decisions relating to a temporary visa of a kind prescribed in regulations. This provides flexibility for the Migration Regulations 1994 (Regulations) to prescribe additional kinds of applications relating to temporary visas as being subject to the new requirement for review to be conducted on the papers. It would not be possible for reviews of decisions relating to permanent visas, or 'reviewable protection decisions' (within the meaning of the Migration Act), to be subject to the requirement.

53. There would be some exceptions to the requirement, including in relation to applications which the President refers to the Tribunal's guidance and appeals panel under section 122 of the ART Act. The Bill would enable regulations to specify additional exemptions in relation to applications that would otherwise be required to be reviewed on the papers.

54. Applications which are required to be reviewed on the papers would be subject to a new, bespoke review procedure. The review would be conducted entirely on the basis of written materials, without the Tribunal holding an oral hearing or any other Tribunal case event. The applicant would be given an opportunity to present their case to the Tribunal, and would be able to provide new information to the Tribunal, in writing only.

55. The key features of the new review procedure would be set out in a new Division 4A of Part 5 of the Migration Act, which would apply instead of existing Division 4 of Part 5 (which sets out matters relating to the conduct of review of reviewable migration decisions and reviewable and protection decisions). Some provisions of the ART Act and the Migration Act – which deal with matters relating oral hearings, and are not relevant to or compatible with reviews being conducted on the papers – would be disapplied in relation to these reviews.

56. Key features of the review procedure include:

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a requirement for the Tribunal to invite the applicant to give the Tribunal written submissions and evidence on certain matters relating to the issues under review – which replaces an applicant's opportunity to present their case at an oral hearing

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a requirement for the Tribunal to give certain information to an applicant and allow the applicant to comment on it (equivalent to the existing requirement under section 359A of the Migration Act that applies to reviews of reviewable migration decisions and reviewable protection decisions)

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enabling an applicant to request the Department to provide access to material given to the Tribunal for the purposes of the review (equivalent to the existing ability under section 362A of the Migration Act that applies to reviews of reviewable migration decisions and reviewable protection decisions)

•

retaining the Tribunal's ability to request or obtain additional documents or materials, including by issuing directions under section 79 of the ART Act requiring an applicant to provide documents, and

•

requiring the Tribunal to make its decision after considering any submissions, evidence and comments given by the applicant, and any other documents and things given to the Tribunal, and without holding an oral hearing.

57. The provisions in new Division 4A would constitute an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with. The requirements codify how the Tribunal must give an applicant an opportunity to present their case in relation to certain matters, and how the Tribunal must provide information to the applicant, before proceeding to a decision without holding a hearing.

58. It is appropriate for applications for review of a decision to refuse a student visa to be reviewed on the papers, having regard to the nature of the issues under review, the temporary and short-term nature of a student visa, and the low volume and complexity of written materials relevant to proceedings of this kind. Enabling decisions of this kind to be reviewed on the papers would facilitate an efficient and proportionate method of review, while ensuring that genuine applicants are given a meaningful opportunity to present their case to the Tribunal in writing.

59. The new requirement would apply to applications which have been made to the Tribunal before the commencement of the amendments, where the Tribunal has not yet been constituted for the purposes of the proceeding. The new requirement would also apply to applications made on or after the commencement of the amendments.

60. This Part also makes minor amendments to existing section 362A of the Migration Act (which deals with an applicant's ability to request certain written materials from the Department) to reflect modern drafting practices and clarify its intended operation.

Amendments

Migration Act 1958

Item 5: Subsection 5(1)

61. This item would insert a definition of an 'application to be reviewed on the papers', by reference to the explanation of that term in subsections 367C(2) and (3). This is consequential to the insertion of Division 4A by item 15.

Item 6: Subsection 336P(1)

62. Section 336P explains the interactions between provisions of the ART Act and the Migration Act in relation to review by the Tribunal of reviewable migration decisions and reviewable protection decisions. Section 336P would continue to apply to applications to be reviewed on the papers under new Division 4A.

63. This item would amend section 336P to insert a reference to section 367E, consequential to the insertion of section 367E by item 16. Section 367E sets out the exhaustive statement of the natural justice hearing rule in relation to applications to be reviewed on the papers under new Division 4A of Part 5. The amendment would provide that section 367E modifies the way in which the ART Act applies in relation to review by the Tribunal of reviewable migration decisions to which new Division 4A would apply.

Item 7: Section 337

64. This item would insert a definition of an 'application to be reviewed on the papers', by reference to the explanation of that term in subsections 367C(2) and (3). This is consequential to the insertion of Division 4A by item 15.

Items 8 and 9: Division 4 of Part 5 (at the end of the heading), before section 357A

65. These items would make amendments to clarify the scope of Division 4 of Part 5 of the Migration Act, which sets out provisions in relation to the conduct of Tribunal review of reviewable migration decisions and reviewable protection decisions.

66. Item 9 inserts new section 357, which provides that Division 4 of Part 5 does not apply to applications to be reviewed on the papers. This is consequential to the insertion of new Division 4A by item 16. New Division 4A, rather than Division 4, applies in relation to applications to be reviewed on the papers.

Items 10 to 15: subsection 362A(1), subsection 362(1A), at the end of subsection 362A(1A), after subsection 362A(1A), after subsection 362A(2)

67. Section 362A enables an applicant to request that the Department gives the applicant access to any written material given or produced to the Tribunal for the purposes of a review. These items would amend section 362A to reflect modern drafting practices and clarify that the Department does not need to provide access to material that is subject to non-disclosure obligations under sections 375A and 376. The amendments are not intended to alter the substantive operation of section 362A.

Item 16: After Division 4 of Part 5

68. This item inserts new Division 4A of Part 5. Division 4A sets out the procedure by which the Tribunal is required to review applications for review of certain kinds of reviewable migration decisions on the papers, without conducting an oral hearing. New Division 4A, instead of Division 4, applies in relation to those applications.

New section 367C– Scope of this Division

69. This section would set out the scope of new Division 4A.

70. Subsection 367C(1) would provide that Division 4A applies in relation to an application to be reviewed on the papers.

71. Subsection 367C(2) would identify the kinds of applications for review of a reviewable migration decisions which are 'applications to be reviewed on the papers' for the purposes of Division 4A.

72. Paragraph 367C(2)(a) would have the effect that an application to be reviewed on the papers includes an application to review a reviewable migration decision that is a decision to refuse to grant a student visa. 'Student visa' is defined in subsection 5(1) of the Migration Act to have the meaning given by the Migration Regulations. The Migration Regulations identify particular subclasses of visa which are 'student visas'.

73. Paragraph 367C(2)(b) would have the effect that an application to be reviewed on the papers includes an application for review of a reviewable migration decision that is a decision relating to a temporary visa of a kind (if any) prescribed in regulations. 'Temporary visa' is defined in section 5 by reference to subsection 30(2), which provides that a temporary visa is a visa to remain in Australia during a specified period, until a specified event happens or while the holder has a specified status (whether also a visa to travel to an enter Australia). Paragraph 367C(2)(b) would enable regulations to specify kinds of applications for review of decisions relating to a temporary visa which are to be treated as applications to be reviewed on the papers for the purposes of Division 4A. A decision 'relating to' a temporary visa includes a decision to refuse to grant, or a decision to cancel, a temporary visa

74. The Regulations set out individual visa subclasses and the criteria for the granting of visas. It is appropriate for additional kinds of applications for review of decisions relating to temporary visa to be prescribed in regulations, rather than in primary legislation, so that any prescribed visa types can be kept in alignment with future changes to the Regulations. Any regulations made under the regulation-making power in new paragraph 367C(2)(b) would be disallowable.

75. In accordance with subsection 367C(4), regulations made for the purposes of paragraph 367C(2)(b) would be able to prescribe kinds of applications made to the Tribunal before, on, or after the commencement of the regulations. This would enable, for example, regulations to have the effect that an application for review of a decision relating to a specified kind of temporary visa, which has already been made to the Tribunal but in relation to which the Tribunal has not yet been constituted, is to be reviewed on the papers. The retroactive application of regulations is appropriate to ensure the Tribunal can apply consistent procedures to reviews of the same kinds of decisions.

76. The Note under paragraph 367C(2)(b) would explain that an application to the Tribunal for review of a 'reviewable protection decision' (as defined in paragraph 338A) cannot be an application to be reviewed on the papers. This is because subsection (2) would refer only to certain kinds of 'reviewable migration decisions'.

77. Nothing in subsection (2) would affect the operation of existing sections 347, 347A and 348 of the Migration Act, which set out the requirements for making an application to the Tribunal for review of a reviewable migration decision. An application to be reviewed on the papers must be properly made for the purposes of sections 347 and 347A in order for the Tribunal to have jurisdiction to review the decision under section 348.

78. Subsection 367C(3) would identify circumstances in which an application is not, or ceases to be, an application to be reviewed on the papers. These circumstances would be exceptions to the general position that applications falling within the scope of subsection (2) are applications to be reviewed on the papers. If an application falls within the circumstances identified in subsection 367C(3), the application would not be, or would cease to be, subject to the requirements in new Division 4A, and would instead be reviewed in accordance with existing Division 4. The phrase 'ceases to be' would indicate that it would be possible that an application ceases to be an application to be reviewed on the papers at any stage of the review process (that is, between the application being made and the Tribunal making its decision on review), if any of the circumstances covered by new paragraphs 367C(3)(a) and (b) arise during the review.

79. In accordance with paragraph 367C(3)(a), an application would not, or would cease to be, an application to be reviewed on the papers if the President of the Tribunal refers the application to the guidance and appeals panel under section 122 of the ART Act. Section 122 enables the President to refer an application to the guidance and appeals panel if the President is satisfied that the application raises an issue of significance to administrative decision-making, and it is appropriate in the interests of justice that the Tribunal be constituted by the guidance and appeals panel for the purpose of the proceeding in relation to the application. In these circumstances, it would be appropriate that the application cease to be an application to be reviewed on the papers, so that the standard procedures for reviewing an application referred to the guidance and appeals panel would apply.

80. In accordance with paragraph 367C(3)(b), an application would not, or would cease to be, an application to be reviewed on the papers if the circumstances (if any) prescribed in regulations apply in relation to the application. This would enable the regulations to exclude specified kinds of applications covered by subsection (2) from being reviewed on the papers. For example, regulations could specify that an application is not, or ceases to be, an application to be reviewed on the papers if it relates to a decision to refuse a visa because the applicant did not satisfy a particular criterion for the visa. For example, it is the Government's intention that applications for review of decisions in which certain public interest criteria (set out in Part 1 of Schedule 4 to the Migration Regulations) are in issue would not be reviewed on the papers, as it would be more appropriate for the Tribunal to consider issues relating to those criteria in the context of an oral hearing.

81. In accordance with subsection 367C(4), regulations made for the purposes of paragraph 367C(3)(b) would be able to prescribe circumstances relating to applications made before, on or after the commencement of the regulations. This is appropriate to ensure that any changes to the scope of the new requirement apply equally to existing applications in relation to which the Tribunal has not yet made its decision.

82. Subsection 367C(5) would enable the regulations made under subsection (4) to provide for certain transitional arrangements in relation to applications that become, or cease to be, applications to be reviewed on the papers in accordance with subsections (2) or (3). The regulations would be able to provide that, in these circumstances, steps taken under Division 4 can be treated as if they were taken under new Division 4A, and vice versa. For example, the regulations could provide that:

•

if an application for review of a reviewable migration decision is made to the Tribunal, and the Tribunal has issued an invitation under section 359A in Division 4 of Part 5, but the application subsequently becomes an application to be reviewed on the papers (e.g. by force of regulations made under paragraph (2)(b)) – the invitation is taken to have been given under new section 367G(1), which is the broadly equivalent step under new Division 4A, and

•

if the application is an application to be reviewed on the papers, and the Tribunal has issued an invitation under new subsection 367G(1), but the application subsequently ceases to be an application to be reviewed on the papers – the invitation is taken to have been given under section 359A.

83. Regulations along these lines would prevent the Tribunal from needing to repeat steps that have already been taken after an application becomes, or ceases to be, an application to be reviewed on the papers.

New section 367D – Interaction with ART Act

84. This section would list provisions of the ART Act which do not apply in relation to applications to be reviewed on the papers. The listed provisions are in addition to the provisions of the ART Act which do not apply in relation to review by the Tribunal of reviewable migration decisions by force of existing subsection 336P(2) in Division 1 of Part 5.

85. Sections 43 to 46 of the ART Act set out the President's power to reconstitute the Tribunal, by reference to whether the hearing of a proceeding has started. Paragraph 367D(a) would disapply sections 43 to 46 of the ART Act, because new section 367N would deal with the President's ability to reconstitute the Tribunal in relation an application to be reviewed on the papers, in a way that reflects that oral hearings would not take place.

86. Paragraph 367D(b) would disapply section 55 of the ART Act (right to present case). Section 55 sets out the Tribunal's obligation to give a party in a proceeding before it a reasonable opportunity to present their case, access any information or documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding, and make submissions and provide evidence. This section would be disapplied because the Tribunal's requirements to do those things in relation to applications to be reviewed on the papers would separately be set out in Division 4A, in a way that reflects that matters would be heard on the papers without an oral hearing. In accordance with section 367E, Division 4A would constitute an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

87. Paragraph 367D(c) would disapply paragraph 63(2)(a) of the ART Act (non-participating party may be required to appear). The Minister is taken to be a non-participating party in reviews of reviewable migration and reviewable protection decisions under section 348A of the Migration Act. Paragraph 63(2)(a) of the ART Act provides that the Tribunal may order a non-participating party to appear before the Tribunal at a Tribunal case event in relation to the proceeding. This subsection would be disapplied because parties would not be entitled to appear before the Tribunal in relation to applications to be reviewed on the papers, and it would therefore not relevant to these proceedings.

88. Paragraph 367D(d) would disapply Subdivision A of Division 6 of Part 4 of the ART Act (Tribunal powers relating to hearings and evidence), other than sections 70 and 71 (Tribunal may restrict publication or disclosure of information). The disapplied provisions are not relevant to new Division 4A, because oral hearings would not conducted in relation to applications to be reviewed on the papers.

89. Paragraph 367D(e) would disapply paragraphs 79(2)(c) to (i) and (k) of the ART Act (Tribunal directions in relation to hearings). Those paragraphs deal with the Tribunal's power to give directions in relation to evidence and the conduct of Tribunal case events. Those paragraphs would be disapplied because directions in relation to the matters covered by those paragraphs would not be relevant when review is conducted on the papers.

90. Paragraph 367D(f) would disapply sections 80 to 83 of the ART Act (Tribunal powers in relation to hearings). Those provisions would be disapplied to reflect that directions hearings, Tribunal case events or other hearings would not be conducted in relation to applications to be reviewed on the papers, and these provisions would therefore not relevant to matters dealt with under new Division 4A.

91. Paragraph 367(g) would disapply section 106 of the ART Act (review of decisions without hearing). Section 106 sets out the circumstances in which the Tribunal can make a decision without conducting the hearing of the proceeding. This provision would be disapplied because Division 4A separately provides that all applications to be reviewed on the papers are required to be conducted without an oral hearing, and section 106 would therefore not be relevant to this Division.

92. Paragraph 367D(h) would enable regulations to prescribe other provisions of the ART Act that would not apply in relation to applications to be reviewed on the papers. It is anticipated that regulations would be made for this purpose only to address any unanticipated interactions between new Division 4A of the Migration Act and the ART Act.

New section 367E – Exhaustive statement of natural justice hearing rule

93. Subsection 367E(1) would provide that the relevant provisions – identified in subsection (4) as being new Division 4A; and sections 374, 375, 375A and 376 and Division 7, in so far as they relate to Division 4A – are taken to be an exhaustive statement of the requirements of the natural hearing rule in relation to the matters those provisions deal with.

94. Subsection 367E(2) would clarify that, if there is any consistency between the relevant provisions and any of the following provisions of the ART Act, the relevant provisions prevail to the extent of the inconsistency:

•

section 49 (Tribunal has discretion in relation to procedure)

•

section 50 (Tribunal is to act informally etc.)

•

section 51 (Tribunal is to be accessible), and

•

section 53 (Tribunal controls scope of review of decisions).

95. Subsection 367E(2) would make it clear that these provisions of the ART Act – which interact with elements of the exhaustive statement – would only apply to the extent that they would be able to operate consistently with the specific review procedures outlined in new Division 4A of Part 5 of the Migration Act.

96. Subsection 367E(3) would provide that, as an exhaustive statement of the requirements of the natural justice hearing rule, the relevant provisions would not require that the Tribunal observe any principle or rule of common law relating to the matters the relevant provisions deal with.

97. Subsection (4) would identify the 'relevant provisions' as being:

•

Division 4A, which sets out the procedure by which the Tribunal must review applications to be reviewed on the papers

•

sections 374, 375, 375A and 376 (insofar as they relate to Division 4A), which set out procedural requirements regarding the giving of directions, and non-disclosure obligations arising certain information, and

•

Division 7 (insofar as it relates to Division 4A), which deals with how documents must be given to persons other than the Secretary.

98. Section 367E is intended to operate in a similar way to existing section 357A, which is the broadly equivalent provision in Division 4. However, section 367E would cover a number of additional matters, such as the requirement for the Tribunal to put an applicant on notice of, and give the applicant an opportunity to present their case in relation to, certain issues (those being the 'relevant issues' covered by an invitation given to an applicant under subsection 367F(1)).

99. The exhaustive statement of the natural justice hearing rule set out at section 367E would not apply to all aspects of a Tribunal review. In particular, as explained in relation to section 367F below, it would not apply to how the Tribunal is to give an applicant an opportunity to present their case in relation to issues that are not covered by an invitation issued under section 367F (for example, whether the applicant satisfies a criterion for a visa other than the criterion on which the decision to refuse the visa was based, if the Tribunal considers that the applicant's satisfaction of the other criterion is an issue in the proceeding).

New section 367F – ART must invite submissions and evidence on certain issues

100. This section would set out the process by which the Tribunal is required to give an applicant an opportunity to present their case, and make submissions and give evidence, in relation to certain issues relevant to the Tribunal's review of applications to be reviewed on the papers.

101. Subsection 367F(1) would provide that, in relation to an application to be reviewed on the papers, the Tribunal must invite the applicant to give the Tribunal written submissions and evidence relating to certain issues (referred to as 'relevant issues').

102. Subparagraph 367F(1)(a)(i) would provide that a 'relevant issue' is, if the application is for review of a decision to refuse to grant a visa, and the refusal was because the applicant did not satisfy a criterion for that visa, whether the applicant satisfies that criterion.

103. Subparagraph 367F(1)(a)(ii) would provide that a 'relevant issue' is, if the application is for review of a decision to refuse to grant a visa, and the refusal was because a provision of the Migration Act or the regulations prevented the grant of the visa, whether that provision prevents the grant of the visa.

104. The relevant criterion or provision, for the purposes of paragraphs (1)(a)(i) and (ii), would be identified in the notification of the decision to refuse to grant the visa which the Minister is required to give the applicant under existing paragraphs 66(2)(a) or (b) of the Migration Act. Accordingly, having been notified of the decision, an applicant would be aware of the content of the decision and the criterion that they did not satisfy, or the provision which prevented the grant of their visa, without requiring the Tribunal to separately draw those issues to their attention.

105. Subsection 367F(1)(b) would provide that a 'relevant issue' is also any other issue prescribed by regulations. This would enable regulations to set out additional matters in relation to which the Tribunal must invite an applicant to give written submissions and evidence. This means that regulations could have the effect that an invitation must invite an applicant, as a matter of course, to provide submissions and evidence in relation to certain other matters (for example, whether the applicant satisfies a particular criterion for the grant of the visa, such as the criterion which requires an applicant to be enrolled in a course of study in order to be granted a student visa). This would enable the Tribunal to draw an applicant's attention to those additional matters, and ensure the Tribunal receives written submissions and evidence on those additional matters, efficiently and as a matter of course.

106. Subsection 367F(2) would provide that the reference to the issue under subparagraph 367F(1)(a)(i) – whether the applicant satisfies the criterion which the applicant was said not to have satisfied – is a reference to whether the applicant satisfies that criterion generally. It is not limited to the parts or aspects of that criterion that formed the basis of the refusal. In addition, the reference to the issue under subparagraph 367F(1)(a)(i) is not limited to the reasons referred to in the notification of the refusal (e.g. the reasons given under existing section 66(2) of the Migration Act).This has the effect that, by issuing an invitation under subparagraph 367F(1)(a)(i), the Tribunal is inviting the applicant to provide written submissions and evidence in relation to whether the applicant satisfies the criterion as a whole, and the applicant is not confined to addressing the particular parts or aspects of the criterion, or the particular reasons for not satisfying the criterion, which were the basis for the original decision-maker deciding that the applicant did not satisfy the criterion.

107. Subsection 367F(3) would provide that, having given an invitation under subsection (1), before making a decision on the application, the Tribunal would not be required to do anything further to put the applicant on notice of the 'relevant issues'. Nor would the Tribunal be required to seek any further submissions, evidence or other information from the applicant in relation to the 'relevant issues'. This is so even if the Tribunal ultimately considers (for example) that the applicant fails to satisfy the criterion covered by subparagraph (1)(a)(i) by reference to a different part or aspect of the criterion, or reason, identified in the notification of the decision under existing subsection 66(2).

108. However, subsection 367(2) would not affect any requirement enlivened under new section 367G. Section 367G provides that the Tribunal must give an applicant clear particulars of adverse information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review, must explain what it is relevant to the review, and must invite the applicant to comment on the information.

109. In this way, section 367F would be an exhaustive statement of the requirements of the natural justice hearing rule in relation to how the Tribunal puts an applicant on notice of, and gives the applicant an opportunity to present their case in relation to, all matters falling within the 'relevant issues'. Accordingly, as provided for by subsection 367E(3), the Tribunal would not be required to observe any principle or rule of common law relating to the matters covered by section 367F.

110. The operation of section 357 is illustrated by the following example:

•

Person A applies for a Subclass 500 (Student) visa (which is a kind of 'student visa' within the meaning of section 5 of the Migration Act).

•

Person A's application is refused by the original decision-maker on the basis that the decision-maker is not satisfied that Person A satisfies the criterion set out in clause 500.212 in Schedule 2 of the Migration Regulation 1994 (referred to as the 'genuine temporary entrant criterion').

•

Person A applies to the Tribunal for review of the refusal decision. The decision is an application to be reviewed on the papers.

•

The Tribunal gives Person A an invitation in accordance with paragraph 367F(1)(a)(i). This means that Person A has been invited to provide written submissions and evidence relating to whether they satisfy the genuine temporary entrant criterion. The invitation is not confined to the particular issue, or a particular part or aspect of the criterion (e.g. a particular sub-criterion under clause 500.212), identified by the original decision-maker as being the reason for Person A failing to satisfy the genuine temporary entrant criterion. The applicant has been invited to address whether they satisfy all aspects of the criterion.

•

Having issued the invitation, and subject to any separate obligation to give Person A 'adverse information' under section 367G, the Tribunal is not required to do anything further to put Person A on notice of the fact that the Tribunal will consider whether Person A satisfies the genuine temporary entrant criterion, or to seek any further submissions, evidence or other information from the applicant in relation to whether Person A satisfies that criterion. If the Tribunal affirms the decision, compliance with subsection (1) will have discharged the Tribunal's obligation to put Person A on notice of, and give Person A an opportunity to present their case on, any issues relating to the whether Person A satisfies the genuine temporary entrant criterion. This is so even if the Tribunal considers that Person A fails to satisfy the genuine temporary entrant criterion for a different reason, or by reference to a different sub-criterion, than that stated in the original decision-maker's reasons.

111. Paragraph 367F(1)(a)(i) only covers the criterion which the applicant is said by the original decision-maker to have failed to satisfy. Accordingly, section 367F would not deal with any steps the Tribunal is required to take to put the applicant on notice of, and seek written submissions or evidence in relation to, issues relating to whether the applicant satisfied a different criterion for the visa. Accordingly, those steps would not be a 'matter' which section 367F deals with. Section 367F would not be an exhaustive statement of the requirements of the natural justice hearing rule in relation to putting an applicant on notice of, and seeking written submissions or evidence in relation to, a different criterion not covered by subparagraph 367F(1)(a)(i).

112. In practice, this would mean that, if the Tribunal considers that the applicant's satisfaction of a different criterion is an issue in relation to the decision of review, and the Tribunal proposes to affirm the decision on the basis that the applicant fails to satisfy the different criterion, any obligation on the Tribunal to put the applicant on notice of the issue in relation to the different criterion, and invite the applicant to present their case on that issue, would arise from common law, rather than as a result of section 367F. In practice, the Tribunal would discharge any obligation to put the applicant on notice of those issues by written engagement with the applicant by other means, separate from any invitation issued under section 367F.

New section 367G – ART must give adverse information to applicant

113. Section 367G would be an exhaustive statement of the requirements of the natural justice hearing rule in relation to how the Tribunal gives adverse information to the applicant and invites them to comment on it. This section would cover information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review. In accordance with subsection 367E(3), the Tribunal would not be required to observe any principle or rule of common law relating to the matters covered by this section.

114. This section is intended to operate in a substantively similar way to section 359A, which imposes an equivalent obligation on the Tribunal in relation to reviewable migration decisions to which Division 4 applies. There are some minor differences to reflect that reviews under Division 4A would be conducted on the papers, including specific requirements as to the content of invitations issued under section 367G, as set out in section 367H.

115. Subsection 367G(1) would have the effect that, if the Tribunal has any information that it considers would be the reason, or part of the reason, for affirming the decision that is under review, the Tribunal must:

•

give the applicant clear particulars of the information

•

ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review, and

•

invite the applicant to comment on the information.

116. Subsection 367G(2) would replicate subsection 359A(4), and would have the effect that the Tribunal's obligations to provide information under subsection (1) would not apply to certain information. Subsection 367G(2) would provide that the Tribunal would not be required to give to the applicant information that was included or referred to in the written statement of the decision that is under review, even if the information is information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review. As applicants are provided with written statements of decisions under the Migration Act, it is reasonable that they are aware of its contents without requiring the Tribunal to proactively draw matters to their attention.

117. Subsection 367G(3) would replicate existing subsection 359A(4A). It is intended to put beyond doubt that the Tribunal would not be required to give particulars of information identified in subsection (2) before making a decision under sections 105 or 349 of the ART Act (whether or not the decision is to affirm the decision under review).

118. Subsection (4) would replicate existing subsection 359A(5). It would clarify that a reference in 367G to affirming a decision does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 368C(6), being when the Tribunal confirms the decision to dismiss an application.

New section 367H – Content of invitation and adverse information given

119. This section would set out requirements for the content of invitations given under subsection 367F(1), and information and invitations given under section 367G(1).

120. Paragraphs 367H(1)(a) and (c) would provide that an invitation under subsection 367F(1), and the information and invitation under section 367G(1), must be given in writing, and must specify that the applicant must respond in writing. This reflects that the review will be conducted on the papers, without oral hearings.

121. Paragraph 367H(1)(b) would provide that an invitation under subsection 367F(1), and the information and invitation under section 367G(1), must be given by one of the methods under section 379A (unless the applicant is immigration detention, in which case it must be given by a method prescribed in regulations). This would ensure there is certainty as to the method for giving invitations and information. This would also ensure that the Tribunal can be satisfied that the applicant has received the invitation and was made aware of the opportunity to respond to the invitation. This is an important safeguard, given that an applicant's failure to respond to an invitation given under subsection 367F(1) within the response period enlivens a requirement for the Tribunal to dismiss the application (see new section 367M).

122. Paragraph 367H(d) would provide that an invitation under subsection 367F(1), and an invitation under section 367G(1), must specify the period in which the applicant must respond. Subsection 367H(2) would provide that the response period must be the period prescribed in the regulations (if any) or in any other case, a reasonable period specified in the notice. Enabling a response period to be specified in regulations would provide certainty and consistency for applicants.

123. Paragraph 367H(1)(e) would allow any additional requirements regarding the giving of an invitation under subsection 367F(1), or any information and invitation given under subsection 367G(1), to be prescribed in the regulations. This would ensure that there is flexibility to introduce additional requirements as appropriate.

124. The Note under subsection (2) would make it clear that the Tribunal does not have the power to extend the response period. The Tribunal would not be prevented from accepting a response provided after the response period, but the effect of new subsection 367N(3) is that the Tribunal is able to make its decision in relation to an application at any point after the expiry of the response periods set out at subsection 367N(3).

New section 367J – Applicant to have access to written material before Tribunal

125. Section 367J would enable an applicant to request that the Department provides access to written material given or produced to the Tribunal by the Department for the purposes of the review. This section would replicate section 362A in Division 4 of Part 5, as amended by items 10 to 15 above. It is necessary to replicate this provision in new Division 4A to ensure applicants would be able to request information of this kind in the context of applications to be reviewed on the papers.

New section 367K – Reviews may be combined

126. Section 367K would enable the Tribunal to combine reviews under two or more applications to be reviewed on the papers in respect of the same person. This section substantively replicates section 363 in Division 4 of Part 5. It is necessary to replicate this provision in new Division 4A to ensure the Tribunal would be able to flexibly adapt its procedure to combine reviews where it is appropriate and efficient to do so.

New section 367L – ART may be reconstituted

127. This section would enable the President of the Tribunal to reconstitute the Tribunal (under section 37 of the ART Act) at any time before the Tribunal makes its decision in a proceeding in relation to an application to be reviewed on the papers. This section would apply instead of sections 43 to 46 of the ART Act, which are switched off for applications to be reviewed on the papers (see section 367D(a)) because they are framed by reference to the 'start of the hearing', and applications to be reviewed on the papers do not involve oral hearings.

128. This section would ensure that arrangements can be made for the reconstitution of the Tribunal in appropriate circumstances (for example, if the member who constitutes the Tribunal for the purposes of the proceeding becomes unavailable).

129. The Note under this section would clarify that section 48 of the ART Act applies after the Tribunal is reconstituted. Section 48 provides that, if the Tribunal is reconstituted, the Tribunal as reconstituted must continue the proceeding, and may have regard to any record of the proceeding before the Tribunal as previously constituted, and any document or thing relating to the proceeding given to the Tribunal as previously constituted.

New section 367M – Dismissing applications to be reviewed on the papers

130. This section would require that the Tribunal dismiss an application if the applicant does not respond to an invitation given by the Tribunal under subsection 367F(1), within the response period for the invitation identified in 367H(1)(d).

131. The applicant, as the person who would have initiated the review of the application to the Tribunal, has a general obligation to move that application forward and take the steps necessary to progress it to its conclusion. It is appropriate to require the Tribunal to dismiss an application where the applicant does not engage in the review process by responding to an invitation under subsection 3671(F). This would promote the efficient use of Tribunal resources, so that the Tribunal can dismiss – rather than continue to follow up on – applications where the applicant does not progress their matter.

132. Subsection 367M(2) and Note 1 would make it clear that this dismissal power operates in addition to, and does not limit, the Tribunal's other powers to dismiss an application. For example, the Tribunal may exercise its power under section 100 of the ART Act to dismiss an application if the applicant fails to comply with an order of the Tribunal in relation to the proceeding.

133. Existing notification requirements relating to the dismissal of applications would apply to dismissals made under this section. As Note 2 explains, this would include the requirement that the Tribunal notifies an applicant, in accordance with section 368B of the Migration Act, of its decision to dismiss the application under this section.

134. Note 3 would explain that section 368C, which applies when the Tribunal dismisses an application for review of a reviewable migration decision or a reviewable protection decision, would also apply in relation to dismissals under section 367M. This means that, following dismissal, an applicant would be able to apply for reinstatement of their application within 28 days after receiving notice of the dismissal decision given under subsection 368B(5). The Tribunal would be required to reinstate the application if it considers that it is appropriate to do so, or confirm the decision to dismiss the application by written statement under section 368.

New section 367N – Decision without hearing

135. This section would deal with the making of the Tribunal's decision in relation to an application to be reviewed on the papers. It would make it clear that the Tribunal is to make its decision in a proceeding based on the material before it and without holding an oral hearing.

136. Paragraph 367N(1)(a) would provide that the Tribunal must make its decision in the proceeding in relation to an application to be reviewed on the papers after considering any submissions, evidence and comments given by the applicant, and any other documents and things given to the Tribunal in relation to the proceeding. This would include anything given to the Tribunal by an applicant in response to an invitation issued under subsection 367F(1), or information and an invitation given under subsection 367G(1). It would also include any information the Tribunal obtains from the applicant by other means, such as documents provided to the Tribunal in response to an order given to the applicant under section 79 of the ART Act. To avoid doubt, paragraph (1)(a) would not prevent the Tribunal from considering documents or other things it obtains by other means (not given by the applicant) before making its decision.

137. Paragraph (1)(b) would provide that the Tribunal must make its decision without holding the hearing of the proceeding. Subsection (2) has the effect that a decision in the proceeding in relation to an application to be reviewed on the papers must be made without the applicant appearing before the Tribunal (at an oral hearing or by any other means).

138. Subsection (3) would have the effect that the Tribunal's ability to make its decision is enlivened only after:

•

the end of the response period in relation to an invitation given under subsection 367F(1), or any information and invitation given under subsection 367G(1), and

•

the end of any period within which a party to the proceeding must give information or documents to the Tribunal under an order made under section 79 of the ART Act in relation to the application.

139. Given the Tribunal would be required to make its decision after considering any submissions, evidence, comments or other documents and things given to the Tribunal in relation to the proceeding, subsection (3) would ensure that the Tribunal will not make its decision without considering an applicant's response to an invitation under subsection 367F(1), any information and invitation given under subsection 367G(1), and any order given under subsection 79 of the ART Act (so long as the applicant provides their response within the required period). Subsection 367N(3) would also reinforce that, once the Tribunal has discharged its obligations arising under subsections 367F(1) and 367G(1), it may make its decision in relation to the proceeding.

Item 17: Paragraph 368B(1)(b)

140. This item would make a consequential amendment to paragraph 368B(1)(b), to insert a reference to a decision under section 367M to dismiss an application to be reviewed on the papers. This would ensure that section 368B – which sets out steps to be taken when the Tribunal dismisses an application for review of a reviewable migration decision or a reviewable protection decision – would also apply to decisions to dismiss an application under the new power in section 367M.

Item 18 to 20: Section 368C(2), at the end of paragraphs 368C(2)(a) to (c), after paragraph 368C(2)(c)

141. These items would make consequential amendments to section 368C, which deals with the reinstatement of applications and the confirmation of dismissals. The amendments would have the effect that, if the Tribunal dismisses an application to be reviewed on the papers under section 367M, the applicant may, within 28 days after receiving notice of the dismissal decision, apply to the Tribunal for reinstatement of the application. This would be consistent with the ability for an applicant to seek reinstatement if the Tribunal has dismissed their application under sections 99, 100 or 101 of the ART Act.

Item 21: Application provision

142. This item would identify the applications to which the amendments to the Migration Act made by the Bill apply. This would ensure there is certainty in relation to the transition to the new on the papers review process and requirements under new Division 4A.

143. Subitem (1)(a) would have the effect that the amendments apply in relation to an application, made on or after the commencement of Part 2 of Schedule 1 to the Bill, to the Tribunal for review of a decision. This would mean that all applications that are made after the commencement of this item, and fall within the scope of 'applications to be reviewed on the papers' as defined in subsections 367C(2) and (3) (inserted by item 15), would be reviewed on the papers in accordance with new Division 4A.

144. Subitem (1)(b) would have the effect that the amendments apply in relation to an application that has been made to the Tribunal before the commencement of the amendments, where the President of the Tribunal has not already constituted the Tribunal for the purposes of the proceeding in accordance with section 37 of the ART Act. This means that applications of this kind which fall within the scope of 'applications to be reviewed on the papers' as defined in subsections 367C(2) and (3) (inserted by item 15), are to be reviewed on the papers in accordance with new Division 4A of Part 5 of the Migration Act. However, if the Tribunal has already been constituted for the purposes of the proceeding, the application will continue to be reviewed in accordance with Division 4 of Part 5. This would be appropriate because, in the small cohort of applications on hand in relation to which the Tribunal has already been constituted, it is likely that the Tribunal would have already taken substantive steps in the review process and that the hearing of a proceeding has already been scheduled, or taken place. It would be more efficient for the Tribunal to finalise its review in accordance with the existing procedures and requirements in those matters.

145. The retroactive application of the amendments to applications of the kind covered by subitem (1)(b) is appropriate because those applications are likely to be at a very early stage of the review process and there would be a smooth transition to the new on the papers review procedures. It would also ensure there is consistency in the Tribunal's review procedures for most of the relevant applications the Tribunal has on hand at the time of the commencement of the amendments, and applications made after commencement. It would be undesirable from an operational perspective if the Tribunal were required to apply different case management and review procedures to applications of the same kind on hand based on when the application was made.

146. Subitems (2) and (3) would set out transitional arrangements for aspects of the review process in relation to applications which were made (but not finalised) before the commencement of the amendments, and become 'applications to be reviewed on the papers' after the commencement in accordance with subitem (1)(b). In this circumstance, if the Tribunal gave information and invitation under existing section 359A in Division 4 of Part 5 of the Migration Act, that information and invitation would be taken to have been given in accordance with new section 367G. Section 367G is the equivalent requirement that applies in relation to applications to be reviewed on the papers under Division 4A. These subitems would minimise the extent to which the Tribunal is required to repeat substantive steps in the review process for existing applications which transition to become applications to be reviewed on the papers under new Division 4A, and ensure a smooth transition to the new requirements after commencement of the amendments.