Commonwealth Consolidated Acts Commonwealth Consolidated Acts1 After section 420
Insert:
420A Principal Member may give directions
(1) The Principal Member may, in writing, give directions, not inconsistent with this Act or the regulations as to:
(a) the operations of the Tribunal; and
(b) the conduct of reviews by the Tribunal.
(2) In particular, the directions may relate to the application of efficient processing practices to the conduct of reviews by the Tribunal.
(3) The Tribunal should, as far as practicable, comply with the directions. However, non - compliance by the Tribunal with any direction does not mean that the Tribunal's decision on a review is an invalid decision.
(4) If the Tribunal deals with a review of a decision in a way that complies with the directions, the Tribunal is not required to take any other action in dealing with the review.
2 After section 422
Insert:
422A Reconstitution of Tribunal for efficient conduct of review
(1) The Principal Member may direct that:
(a) the member constituting the Tribunal for a particular review be removed; and
(b) another member constitute the Tribunal for the purposes of that review;
if the Principal Member thinks the reconstitution is in the interests of achieving the efficient conduct of the review in accordance with the objective set out in subsection 420(1).
(2) However, the Principal Member must not give such a direction unless:
(a) the Tribunal's decision on the review has not been recorded in writing or given orally; and
(b) the Principal Member has consulted:
(i) the member constituting the Tribunal; and
(ii) a Senior Member who is not the member constituting the Tribunal; and
(c) either:
(i) the Principal Member is satisfied that there is insufficient material before the Tribunal for the Tribunal to reach a decision on the review; or
(ii) a period equal to or longer than the period prescribed for the purposes of this subparagraph has elapsed since the Tribunal was constituted.
(3) If a direction under this section is given, the member constituting the Tribunal in accordance with the direction is to continue and finish the review and may, for that purpose, have regard to any record of the proceedings of the review made by the member who previously constituted the Tribunal.
Note: The heading to section 422 is altered by adding at the end " --unavailability of member ".
3 Sections 424 and 425
Repeal the sections, substitute:
424 Tribunal may seek additional information
(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2) Without limiting subsection (1), the Tribunal may invite a person to give additional information.
(3) An invitation to an applicant must be given to the applicant by one of the methods specified in section 441A. However, this subsection does not apply if the applicant is in immigration detention.
424A Applicant must be given certain information
(1) Subject to subsection (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
(2) The invitation must be given to the applicant by one of the methods specified in section 441A. However, this subsection does not apply if the applicant is in immigration detention.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application; or
(c) that is non - disclosable information.
424B Invitation to give additional information or comments
(1) If a person is:
(a) invited under section 424 to give additional information; or
(b) invited under section 424A to comment on information;
the invitation is to specify the way in which the additional information or the comments may be given, being the way the Tribunal considers is appropriate in the circumstances.
(2) If the invitation is to give additional information or comments otherwise than at an interview, the information or comments are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.
(3) If the invitation is to give information or comments at an interview, the interview is to take place:
(a) at the place specified in the invitation; and
(b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period.
(4) If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.
(5) If a person is to respond to an invitation at an interview at a time within a prescribed period, the Tribunal may change that time to:
(a) a later time within that period; or
(b) a time within that period as extended by the Tribunal for a prescribed further period;
and then the response is to be made at an interview at the new time.
424C Failure to give additional information or comments
(1) If a person:
(a) is invited under section 424 to give additional information; and
(b) does not give the information before the time for giving it has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the additional information.
(2) If the applicant:
(a) is invited under section 424A to comment on information; and
(b) does not give the comments before the time for giving them has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the applicant's views on the information.
425 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
425A Notice of invitation to appear
(1) If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant by one of the methods specified in section 441A. However, this subsection does not apply if the applicant is in immigration detention.
(3) The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
(4) The notice must contain a statement of the effect of section 426A.
4 Subsection 426(1)
Omit "Where section 424 does not apply", substitute "In the notice under section 425A".
5 Paragraph 426(1)(a)
Omit "entitled", substitute "invited".
6 After section 426
Insert:
426A Failure of applicant to appear before Tribunal
(1) If the applicant:
(a) is invited under section 425 to appear before the Tribunal; and
(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
(2) This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled.
7 After section 429
Insert:
429A Oral evidence by telephone etc.
For the purposes of the review of a decision, the Tribunal may allow the appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person, to be by:
(a) telephone; or
(b) closed - circuit television; or
(c) any other means of communication.
8 Subsection 430(2)
Repeal the subsection.
Note: The heading to section 430 is altered by omitting " and to notify parties ".
9 After section 430
Insert:
430A Tribunal must invite parties to handing down of decision
(1) This section applies to any decision on a review by the Tribunal other than the following decisions:
(a) a decision that is given orally;
(b) a decision on the application of a person who is in immigration detention.
(2) The Tribunal must invite the applicant and the Secretary to be present when the decision is handed down.
(3) The Tribunal must give the applicant and the Secretary written notice of the day on which, and the time and place at which, the decision is to be handed down. The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
(4) The notice to the applicant must:
(a) contain a statement of the effect of subsection 430B(6); and
(b) be given to the applicant by one of the methods specified in section 441A.
430B Tribunal decision to be handed down
(1) This section applies to any decision on a review by the Tribunal other than the following decisions:
(a) a decision that is given orally;
(b) a decision on the application of a person who is in immigration detention.
(2) On the day, and at the time and place, specified in the notice referred to in section 430A, the decision on the review is to be handed down (on behalf of the Tribunal) by:
(a) the Principal Member; or
(b) a person authorised in writing by the Principal Member to hand down decisions.
An authorisation may set out the circumstances in which a person is authorised to hand down decisions.
(3) The Tribunal's decision may be handed down:
(a) by reading the outcome of the decision; and
(b) whether or not either or both the applicant and the Secretary are present.
(4) The date of the decision is the date on which the decision is handed down.
(5) If the applicant and the Secretary are present at the handing down of the decision, the Tribunal must give each of them a copy of the statement prepared under subsection 430(1).
(6) If the applicant is not present at the handing down of the decision, the Tribunal must notify the applicant of the decision by giving the applicant a copy of the statement prepared under subsection 430(1). The copy must be given to the applicant:
(a) within 14 days after the day on which the decision is handed down; and
(b) by one of the methods specified in section 441A.
(7) If the Secretary is not present at the handing down of the decision, the Tribunal must give to the Secretary a copy of the statement prepared under subsection 430(1) within 14 days after the day on which the decision is handed down.
(8) Without limiting the generality of subsections (6) and (7), an applicant or the Secretary is taken not to be present at the handing down of a decision if:
(a) he or she is not at the same location as that of the person who is handing down the decision when the decision is handed down; and
(b) the decision is being handed down by:
(i) telephone; or
(ii) closed - circuit television; or
(iii) any other means of communication.
(9) A reference to the applicant or the Secretary being present at the handing down of the decision includes a reference to a representative of the applicant or Secretary being present.
430C Applicant taken to be notified when representative notified
(1) If a representative of the applicant is present at the handing down of a decision under section 430B, the applicant is taken to be notified of the decision on the day on which the decision is handed down.
(2) If a representative of the applicant is notified of a decision under subsection 430B(6), the applicant is taken to be notified of the decision on the day on which the representative is so notified.
430D Tribunal must notify parties (parties not invited to handing down of decision)
(1) If the Tribunal gives an oral decision on an application for review, the Tribunal must give the applicant and the Secretary a copy of the statement prepared under subsection 430(1) within 14 days after the decision concerned is made. The applicant is taken to be notified of the decision on the day on which the decision is made.
(2) If the applicant is in immigration detention, the Tribunal must give the applicant and the Secretary a copy of the statement prepared under subsection 430(1) within 14 days after the decision concerned is made.
10 Subsection 431(1)
Repeal the subsection, substitute:
(1) Subject to subsection (2), and to any direction under section 440, the Registrar must ensure the publication of any statements prepared under subsection 430(1) that the Principal Member thinks are of particular interest.
Note: The heading to section 431 is replaced by the heading " Certain Tribunal decisions to be published ".
11 At the end of section 432
Add:
(2) To avoid doubt, an invitation under section 425 to appear before the Tribunal is not a summons to appear before the Tribunal to give evidence.
12 At the end of Division 7 of Part 7
Add:
441A Methods of dispatch of certain documents
(1) A document specified in subsection (3) is taken to be duly given to an applicant for review if:
(a) the document is sent (physically, electronically or otherwise) to:
(i) the last address for service provided by the applicant in connection with his or her application for review; or
(ii) the last residential address provided by the applicant in connection with his or her application for review; and
(b) the Tribunal has a receipt or other evidence indicating the date of dispatch.
(2) A document specified in subsection (3) is taken to be duly given to an applicant for review if the document is given:
(a) by giving it to the applicant or to a person authorised by the applicant to receive documents of that kind on behalf of the applicant; or
(b) by leaving it at the applicant's place of residence with a person who appears to live there and appears to have turned 16.
(3) The documents specified for the purposes of subsections (1) and (2) are:
(a) an invitation to an applicant under section 424 (other than an invitation to an applicant who is in immigration detention); and
(b) an invitation under section 424A (other than an invitation to an applicant who is in immigration detention); and
(c) a notice under section 425A (other than a notice to an applicant who is in immigration detention); and
(d) a notice under section 430A; and
(e) a statement given under subsection 430B(6).
(4) It is sufficient compliance with the requirement to give a document referred to in subsection (3) if a facsimile, or a certified copy, of the document is so given.
(5) A document posted in accordance with paragraph (1)(a) must bear correct pre -/span> paid postage and, if the document is posted to an overseas address, the postage must be at the full airmail rate.
13 Subsection 469(1)
Omit "the office of Principal Member", substitute "a senior office".
14 Paragraph 469(1)(b)
Omit "the Principal Member", substitute "the holder of the office".
15 Subsection 469(1A)
Repeal the subsection.
16 Subsection 469(2)
Omit "an office", substitute "a senior office".
17 Subsection 469(9) (paragraph (a) of the definition of normal terminating event )
Omit "or (1A)(a)".
18 Subsection 469(9) (paragraph (b) of the definition of normal terminating event )
Omit "or (1A)(b)".
19 Subsection 469(9)
Insert:
"senior office" means the office of Principal Member, the office of Deputy Principal Member or an office of Senior Member.
Part 2 -- Application provisions
20 Existing applications for review
(1) The amendments made by this Schedule apply to an application made under section 412 of the Migration Act 1958 for review of an RRT - reviewable decision if:
(a) the application was made before the commencement of this Schedule; and
(b) the review was not completed under section 414 of that Act before that commencement.
(2) Subsection 430(2) of the Migration Act 1958 as in force immediately before the commencement of this item continues to apply in relation to statements prepared under subsection 430(1) of that Act before that commencement.
21 Applications for review of existing RRT - reviewable decisions
The amendments made by this Schedule apply to an application made, on or after the commencement of this Schedule, under section 412 of the Migration Act 1958 for review of an RRT - reviewable decision made before that commencement.