Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (38 of 2024)

Schedule 2   Home Affairs

Part 1   Main amendments

Migration Act 1958

136   Sections 347 to 349

Repeal the sections, substitute:

347 Application for ART review

Making an application

(1) An application may be made to the ART for review of a reviewable migration decision or a reviewable protection decision.

(2) The application must:

(a) include the prescribed information (if any); and

(b) be accompanied by the prescribed documents (if any); and

(c) be accompanied by the prescribed fee (if any).

Time for making an application

(3) An application must be made:

(a) if the applicant is in immigration detention on the day the applicant is notified of the decision - within 7 days after the day the applicant is notified of the decision; or

(b) otherwise - within 28 days after the day the applicant is notified of the decision.

Certain provisions of the ART Act do not apply

(4) Subsection (3) applies despite section 18 (when to apply - general rule) of the ART Act.

(5) Section 19 (ART may extend period) of the ART Act does not apply in relation to reviewable migration decisions or reviewable protection decisions.

(6) Subsections 34(2) and (3) (information to include in applications and validity) of the ART Act do not apply to an application to the ART for review of a reviewable migration decision or a reviewable protection decision.

(7) Paragraph (2)(c) has effect despite any rules made for the purposes of section 296 (Tribunal may charge fees) of the ART Act to the extent those rules relate to applications to the ART for review of reviewable migration decisions or reviewable protection decisions.

347A Who can apply for ART review etc.

(1) An application for review of a reviewable migration decision may only be made by:

(a) for a decision covered by subsection 338(2), (3), (3A), (4) or (7A) - the non-citizen who is the subject of that decision; or

(b) for a decision covered by subsection 338(5) or (8) - by the sponsor or nominator referred to in the subsection concerned; or

(c) for a decision covered by subsection 338(6) or (7) - by the relative referred to in the subsection concerned; or

(d) for a decision covered by subsection 338(9) - by the person prescribed in respect of the kind of decision in question prescribed for the purposes of that subsection.

Note: Section 5G may be relevant for determining family relationships for the purposes of paragraph (c) of this subsection.

(2) If the reviewable migration decision is covered by subsection 338(2), (3), (3A) or (4), an application for review may only be made by a non-citizen who is physically present in the migration zone when the application for review is made.

(3) If the reviewable migration decision is covered by subsection 338(7A), an application for review may only be made by a non-citizen who:

(a) was physically present in the migration zone at the time when the decision was made; and

(b) is physically present in the migration zone when the application for review is made.

(4) An application for review of a reviewable protection decision may only be made by the non-citizen who is the subject of the decision.

(5) An application for review of a reviewable protection decision may only be made by a non-citizen who is physically present in the migration zone when the application for review is made.

(6) This section has effect despite section 17 (who can apply) and section 35 (applications may be made on behalf of a person) of the ART Act.

348 ART to review reviewable migration decisions and reviewable protection decisions

(1) If an application to the ART for review of a reviewable migration decision or a reviewable protection decision is properly made under sections 347 and 347A, the ART must review the decision.

Note: The ART has no jurisdiction to review a decision if the application for review is not properly made.

(2) However, the ART must not review, or continue to review, a reviewable migration decision or a reviewable protection decision in relation to which the Minister has issued a conclusive certificate under section 339.

348A Parties to a proceeding for review

(1) The Minister is taken to be a non-participating party to a proceeding for review of a reviewable migration decision or a reviewable protection decision for the purposes of the ART Act.

(2) Despite paragraph 22(1)(c) of the ART Act, a person cannot apply to the ART to become a party to the proceeding for review of a reviewable migration decision or a reviewable protection decision.

(3) The Minister:

(a) cannot give a notice to the ART under section 62 (Tribunal may allow non-participating party to participate) of the ART Act; and

(b) cannot give written submissions in relation to the proceeding under subsection 63(1) of the ART Act.

(4) An order under subsection 63(2) of the ART Act can only be made by the President or a Deputy President of the ART in relation to a proceeding for review of a reviewable migration decision or a reviewable protection decision.

(5) Rules made for the purposes of subsection 64 (rules may deal with elections in relation to participation) of the ART Act do not apply in relation to a proceeding for review of a reviewable migration decision or a reviewable protection decision.

349 Remittal

(1) Subparagraph 105(c)(ii) of the ART Act does not apply in relation to a reviewable migration decision or a reviewable protection decision.

(2) If a reviewable migration decision or reviewable protection decision relates to a prescribed matter, the ART may, under this subsection:

(a) set aside the decision; and

(b) remit the matter for reconsideration in accordance with such orders or recommendations of the ART as are permitted by the regulations.

(3) Paragraph (2)(a) of this section applies despite subsection 31(1) (decision cannot be altered outside Tribunal process) of the ART Act.