(b) by omitting from subsection (2) all the words after “ proceedings ” and substituting “ in the Administrative Appeals Tribunal. ”
26 (b) by omitting from subsection (2) all the words after “ proceedings ” and substituting “ in the Administrative Appeals Tribunal. ”
After section 150 of the Principal Act the following Division is inserted in Part 3:
“Division 8—Referral of decisions to Administrative Appeals Tribunal
Interpretation
“150A. In this Division:
‘AAT Act’ means the Administrative Appeals Tribunal Act 1975.
Referral of decisions to Administrative Appeals Tribunal
“150B.
The Principal Member of the Immigration Review Tribunal may, if the Principal Member considers that an IRT-reviewable decision involves an important principle, or issue, of general application, refer the decision to the President of the Administrative Appeals Tribunal.
“(2) A referral under subsection (1) may be made at any time:
after the receipt by the Immigration Review Tribunal of an application for a review of the decisions; and
before that Tribunal makes a decision on the application.
“(3) The following material must be sent with the referral:
a request for a review by the Administrative Appeals Tribunal of that decision;
a statement of the Principal Member’s reasons for concluding that the decision involves an important principle, or issue, of general application;
any documents or other records that the Principal Member considers relevant.
“(4) The Principal Member must give written notice of the making of a referral under subsection (1) to the applicant and the Secretary.
“(5) The Immigration Review Tribunal must not commence any action in relation to the proceeding before it with respect to the decision, or, if it has commenced such action, must cease that action until notified by the President of the Administrative Appeals Tribunal in accordance with section 150C.
“(6) If the President of the Administrative Appeals Tribunal directs that the Administrative Appeals Tribunal will accept the referral, the review by the Immigration Review Tribunal is taken to be closed.
Administrative Appeals Tribunal may accept or decline referral
“150C.
The President of the Administrative Appeals Tribunal must consider a request under section 150B and either:
direct that the Administrative Appeals Tribunal will accept the referral of the decision; or
direct that the Administrative Appeals Tribunal will decline the referral of the decision.
“(2) The President must notify the Principal Member of the direction made under subsection (1).
“(3) If the President accepts the referral of an IRT-reviewable decision:
the application to the Immigration Review Tribunal is taken to have been properly made to the Administrative Appeals Tribunal by the applicant to the Immigration Review Tribunal; and
the AAT Act applies to the review of the IRT-reviewable decision subject to the modifications in this Division.
Modification of definition of ‘member’ in section 3 of the AAT Act
“150D. Section 3 of the AAT Act applies in relation to an IRT-reviewable decision as if the definition of member were omitted and the following definition substituted:
‘“member” means a presidential member, a senior member, or any other member of the Tribunal and includes the Principal Member of the Immigration Review Tribunal;’.
Modification of section 21 of the AAT Act
“150E. Section 21 of the AAT Act applies in relation to an IRT-reviewable decision as if:
subsection (1) were omitted and the following subsections substituted:
‘(1) Subject to subsection (1AA), the Tribunal is, for the purposes of the exercise of its powers in relation to a matter, to be constituted by:
a presidential member who is a Judge, the Principal Member of the Immigration Review Tribunal and one other member (not being a Judge); or
a Deputy President, the Principal Member of the
Immigration Review Tribunal and one non-presidential member.
‘(IAA) If the Principal Member of the Immigration Review Tribunal had constituted that Tribunal, in whole or in part, for the review by the Immigration Review Tribunal of the IRT-reviewable decision that is the subject of a matter, the Tribunal in relation to proceedings for the purposes of the exercise of its power in relation to that matter, is to be constituted by:
a presidential member who is a Judge and two other members (not being Judges or the Principal Member of the Immigration Review Tribunal); or
a Deputy President and two non-presidential members (not being the Principal Member of the Immigration Review Tribunal).’; and
subsections (2), (3) and (4) were omitted.
Certain sections of the AAT Act do not apply to IRT-reviewable decisions
“150F. Sections 21A, 27, 28 and 29 of the AAT Act do not apply in relation to IRT-reviewable decisions.
Modification of section 25 of the AAT Act
“150G. Section 25 of the AAT Act applies in relation to an IRT-reviewable decision as if subsections (6) and (6A) were omitted.
Modification of section 30 of the AAT Act
“150H. Section 30 of the AAT Act applies in relation to an IRT-reviewable decision as if paragraphs (1)(a). and (b) were omitted and the following paragraphs substituted:
‘(a) the person who, under section 150C of the Migration Act 1958, is taken to have applied to the Tribunal for review of the decision; and
the person who is the Minister for the purposes of the Migration Act 1958; and’.
Modification of section 37 of the AAT Act
“1501. Section 37 of the AAT Act applies in relation to an IRT-reviewable decision as if:
subsections (1) to (1D) (inclusive) were omitted and the following subsection substituted:
‘(1) The Principal Member of the Immigration Review Tribunal must forward to the Administrative Appeals Tribunal all documents and other records relating to the proceeding before the Immigration Review Tribunal with respect to the IRT-reviewable decision within 14 days after receiving notice of the acceptance of the referral of the decision to the Administrative Appeals Tribunal.
‘(1A) Documents provided under subsection 150B(3) of the Migration Act 1958 are taken to have been provided in accordance with subsection (1) of this section.’; and
subsection (4) were omitted.
Modification of section 38 of the AAT Act
“150J. Section 38 of the AAT Act applies in relation to an IRT-reviewable decision as if the reference in that section to a statement referred to in paragraph 37(1)(a) that is lodged by a person with the Tribunal were a reference to a statement that was lodged with the Immigration Review Tribunal by a person under section 122 of the Migration Act 1958.
Modification of section 43 of the AAT Act
“150K. Section 43 of the AAT Act applies in relation to an IRT-reviewable decision as if subsection (1) were omitted and the following subsections were substituted:
‘(1) The Tribunal may, for the purposes of the review of an IRT-reviewable decision, exercise all the powers and discretions that are conferred by the Migration Act 1958 on the person who made the decision.
‘(1A) The Tribunal may:
affirm the decision; or
vary the decision; or
if the decision relates to a matter prescribed for the purposes of paragraph 119(2)(c) of the Migration Act 1958—remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations under that Act; or
set the decision aside and substitute a new decision.
‘(1B) If the Tribunal:
varies the decision; or
sets aside the decision and substitutes a new decision;
the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister.
‘(1C) To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Migration Act 1958 or the regulations under that Act.’.
Minister may substitute more favourable decision
“150L.
If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Administrative Appeals Tribunal in relation to an IRT-reviewable decision another decision, being a decision that is more favourable to the applicant, whether or not the Administrative Appeals Tribunal had the power to make that other decision.
“(2) In exercising the power under subsection (1), the Minister is not bound by Subdivision AA or AC of Division 2 of Part 2 or by the regulations, but is bound by all other provisions of this Act.
“(3) The power under subsection (1) may only be exercised by the Minister personally.
“(4) If the Minister substitutes a decision under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that:
sets out the decision of the Administrative Appeals Tribunal; and
sets out the decision substituted by the Minister; and
sets out the reasons for the Minister’s decision, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest.
“(5) A statement made under subsection (4) is not to include:
the name of the applicant; or
if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person.
“(6) A statement under subsection (4) is to be laid before each House of the Parliament within 15 sitting days of that House after:
if the decision is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
if a decision is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
“(7) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.
Provision of material to which section 147 applies
“150M. If the Immigration Review Tribunal gives to the Administrative Appeals Tribunal a document or information to which section 147 of this Act applies, the Immigration Review Tribunal must give the Administrative Appeals Tribunal written notice of the application of that section.
Section 9 of AAT Act not to apply to Principal Member
“150N. In spite of anything in this Act or in any other enactment, section 9 of the AAT Act does not apply to the Principal Member of the Immigration Review Tribunal.”.
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