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
171 Division 6 of Part 5
Repeal the Division, substitute:
Division 5 - ART decisions
368 ART's decision and written statement etc.
Written statement must be made
(1) If the ART makes a decision on a review, the ART must make a written statement that:
(a) sets out the decision of the ART on the review; and
(b) includes a statement of reasons (within the meaning of the ART Act) for the ART's decision; and
(c) in the case of a decision under paragraph 368C(3)(b) or subsection 368C(5) to confirm the dismissal of an application - indicates that, under subsection 368C(6), the decision under review is taken to be affirmed; and
(d) records the day and time the statement is made.
(2) Subsection (1) is subject to:
(a) paragraphs 375A(2)(b) and 376(3)(b) of this Act; and
(b) sections 70 (Tribunal may restrict publication or disclosure of information) and 91 (disclosure of information - public interest certificate) of the ART Act.
Certain decisions may be given orally before written statement made
(3) Subject to subsection 368C(7), the ART may give a decision on a review and the reasons for the decision orally before making the written statement.
Note: Decisions made under paragraph 368C(3)(b) or subsection 368C(5) cannot be given orally (see subsection 368C(7)).
(4) If subsection (3) applies, the ART must identify, and make a written record of, the day and time the decision is given orally.
Decision cannot be changed
(5) The ART has no power to vary or revoke the decision after:
(a) if the decision on a review is given to the applicant orally before making the written statement - the day and time the decision is given orally; or
(b) otherwise - the day and time the written statement under subsection (1) is made.
When decision taken to have been made
(6) If the decision is not given to the applicant orally before the written statement is made, the decision is taken to have been made:
(a) by the making of the written statement; and
(b) on the day, and at the time, the written statement is made.
(7) If the decision is given to the applicant orally before the written statement is made, the decision is taken to have been made, and notified to the applicant, on the day and at the time the decision is given orally to the applicant.
Validity etc. not affected by procedural irregularities
(8) The validity of a decision on a review, and the operation of subsection (5), are not affected by:
(a) a failure to record, under paragraph (1)(d), the day and time when the written statement was made; or
(b) a failure to identify or record, under subsection (4), the day and time when the decision was given orally.
Interaction with the ART Act
(9) This section applies despite sections 111 (notice of decision and statement of reasons - review of reviewable decision) and 112 (notice of decision and statement of reasons - other proceedings) of the ART Act.
368A Notification of ART's decision
(1) The ART must notify the applicant of a decision on a review by giving the applicant a copy of the written statement made under subsection 368(1).
(2) The copy must be given to the applicant:
(a) within 14 days after the day on which the decision is taken to have been made; and
(b) by one of the methods specified in section 379A.
(3) A copy of that statement must also be given to the Secretary within 14 days after the day on which the decision is taken to have been made.
(4) A failure to comply with this section in relation to a decision on a review does not affect the validity of the decision.
(5) This section applies despite subsection 111(3) and section 112 (notice of decision and statement of reasons - other proceedings) of the ART Act.
368B Notice of dismissal and reinstatement decisions and when taken to have been made
Decisions to which this section applies
(1) This section applies in relation to the following decisions:
(a) a decision under the ART Act to dismiss an application for review of a reviewable migration decision or a reviewable protection decision;
(b) a decision under 368C of this Act to reinstate an application.
Written statement
(2) The ART must make a written statement that:
(a) sets out the decision of the ART; and
(b) records the day and time the statement is made.
(3) The decision is taken to have been made:
(a) by making the written statement; and
(b) on the day and at the time the written statement is made.
(4) The ART has no power to vary or revoke the decision after the day and time the written statement is made.
Note: However, if the application is reinstated, the application is taken never to have been dismissed (seesubsection 368C(4)).
Notice to applicant
(5) The ART must notify the applicant of the decision by giving the applicant a copy of the written statement made under subsection (2). The copy must be given to the applicant:
(a) within 14 days after the day on which the decision is taken to have been made; and
(b) by one of the methods specified in section 379A.
Notice to Secretary
(6) A copy of the written statement made under subsection (2) must also be given to the Secretary within 14 days after the day on which the decision is taken to have been made
Validity etc. not affected by procedural irregularities
(7) The validity of a decision to which this section applies, and the operation of subsection (4), are not affected by:
(a) a failure to record, under paragraph (2)(b), the day and time when the written statement was made; or
(b) a failure to comply with subsection (5) or (6).
Interaction with ART Act
(8) This section applies despite section 112 (notice of decision and statement of reasons - other proceedings) of the ART Act.
368C Reinstatement of application or confirmation of dismissal
(1) This section, instead of section 102 of the ART Act, applies if the ART dismisses an application for review of a reviewable migration decision or a reviewable protection decision.
(2) If the dismissal is made under one of the following provisions of the ART Act, the applicant may, within 28 days after receiving notice of the decision under subsection 368B(5), apply to the ART for reinstatement of the application:
(a) section 99 (Tribunal may dismiss application if applicant does not appear);
(b) section 100 (Tribunal may dismiss application if applicant fails to comply with order etc.);
(c) section 101 (Tribunal may dismiss application if frivolous, vexatious etc.).
Note: Section 379C sets out when a person is taken to have received a document from the ART for the purposes of this Part.
(3) On application for reinstatement in accordance with subsection (2), the ART must:
(a) if it considers it appropriate to do so - reinstate the application by written statement under 368B; or
(b) confirm the decision to dismiss the application, by written statement under section 368.
Note 1: The ART must, under section 368B, notify the applicant of the decision to reinstate the application.
Note 2: The ART must, under section 368A, notify the applicant of the decision to confirm the decision to dismiss the application.
(4) If the ART reinstates the application:
(a) the application is taken never to have been dismissed; and
(b) the ART must conduct (or continue to conduct) the review accordingly.
(5) If the applicant fails to apply for reinstatement within the 28-day period mentioned in subsection (2), the ART must confirm the decision to dismiss the application, by written statement under section 368.
Note: Under section 368A, the ART must notify the applicant of a decision to confirm the dismissal of the application.
(6) If the ART confirms the decision to dismiss the application, the decision under review is taken to be affirmed.
(7) The ART cannot give a decision orally under subsection (3) or (5).
369 Identifying information relating to reviewable protection decisions not to be published
(1) This section applies to reviewable protection decisions.
(2) The ART must not publish information under section 113 of the ART Act which may identify:
(a) an applicant for review of a decision; or
(b) any relative or other dependant of an applicant for review of a decision.