‘ Tribunal office ’ means the office of the Registrar of the Tribunal, or the office of any other officer of the Tribunal appointed under section 166KA. ”
32 ‘ Tribunal office ’ means the office of the Registrar of the Tribunal, or the office of any other officer of the Tribunal appointed under section 166KA. ”
After section 166A of the Principal Act the following Divisions are inserted:
“Division 2—Review of decisions by Refugee Review Tribunal
Decisions reviewable by Refugee Review Tribunal
“166B.
Subject to subsection (2), the following decisions are RRT-reviewable decisions:
a decision, made before 1 November 1993, that a non-citizen is not a refugee under the Refugees Convention as amended by the Refugees Protocol (other than such a decision made after a review by the Minister of an earlier decision that the person was not such a refugee);
a decision, made before 1 November 1993, to refuse to grant, or to cancel, a visa, or entry permit (within the meaning of this Act as in force immediately before that date), a criterion for which is that the applicant for it is a non-citizen who has been determined to be a refugee under the Refugees Convention as amended by the Refugees Protocol (other than such a decision made under Part 2A of the Migration (Review) Regulations);
a decision not to approve an application for a protection visa;
a decision to cancel a protection visa.
“(2) The following decisions are not RRT-reviewable decisions:
decisions made in relation to a non-citizen who is not physically present in the migration zone when the decision is made;
decisions in relation to which the Minister has issued a conclusive certificate under subsection (3).
“(3) The Minister may issue a conclusive certificate in relation to a decision if the Minister believes that:
it would be contrary to the public interest to change the decision, because any change in the decision would prejudice the security, defence or international relations of Australia; or
it would be contrary to the public interest for the decision to be reviewed because such review would require consideration by the Tribunal of deliberations or decisions of the Cabinet or of a committee of the Cabinet.
Application for review by the Refugee Review Tribunal
“166BA.
An application for review of an RRT-reviewable decision must:
be made in the approved form; and
be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision; and
be accompanied by the prescribed fee (if any).
“(2) An application for review may only be made by the non-citizen who is the subject of the primary decision.
“(3) 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.
“(4) Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of RRT-reviewable decisions (which may be decisions that relate to non-citizens in a specified place).
Refugee Review Tribunal must review decisions
“166BB.
Subject to subsection (2), if a valid application is made under section 166BA for review of an RRT-reviewable decision, the Tribunal must review the decision.
“(2) The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 166B(3).
Powers of Refugee Review Tribunal
“166BC.
The Tribunal may, for the purposes of the review of an RRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.
“(2) The Tribunal may:
affirm the decision; or
vary the decision; or
if the decision relates to a prescribed matter—remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or
set the decision aside and substitute a new decision.
“(3) 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.
“(4) 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 Act or the regulations.
Only new information to be considered in later applications for review
“166BD. If a non-citizen who has made:
an application for review of an RRT-reviewable decision that has been determined by the Tribunal or the Administrative Appeals Tribunal; or
applications for reviews of RRT-reviewable decisions that have been determined by the Tribunal or the Administrative Appeals Tribunal;
makes a further application for review of an RRT-reviewable decision, the Tribunal, in considering the further application:
is not required to consider any information considered in the earlier application or an earlier application; and
may have regard to, and take to be correct, any decision that the Tribunal or the Administrative Appeals Tribunal made about or because of that information.
Minister may substitute more favourable decision
“166BE.
If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 166BC another decision, being a decision that is more favourable to the applicant, whether or not the 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 must cause to be laid before each House of the Parliament a statement that:
sets out the decision of the 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
any information that may identify 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 or any information that may identify 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.
Secretary to be notified of application for review by Refugee Review Tribunal
“166BF.
If an application for review is made to the Refugee Review Tribunal, the Registrar must, as soon as practicable, give the Secretary written notice of the making of the application.
“(2) The Secretary must, within 10 working days after being notified of the application, give to the Registrar the prescribed number of copies of a statement about the decision under review that:
sets out the findings of fact made by the person who made the decision; and
refers to the evidence on which those findings were based; and
gives the reasons for the decision.
“(3) The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review of the decision.
“Division 3—Exercise of Refugee Review Tribunal’s powers
Refugee Review Tribunal’s way of operating
“166C.
The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
“(2) The Tribunal, in reviewing a decision:
is not bound by technicalities, legal forms or rules of evidence; and
must act according to substantial justice and the merits of the case.
Constitution of Refugee Review Tribunal for exercise of powers
“166CA.
For the purpose of a particular review, the Tribunal is to be constituted, in accordance with a direction under subsection (2), by a single member.
“(2) The Principal Member may give a written direction about who is to constitute the Tribunal for the purpose of a particular review.
Reconstitution of Refugee Review Tribunal
“166CB.
If the member who constitutes the Tribunal for the purposes of a particular review:
stops being a member; or
for any reason, is not available for the purpose of the review at the place where the review is being conducted;
the Principal Member must direct another member to constitute the Tribunal for the purpose of finishing the review.
“(2) If a direction is given, the Tribunal as constituted in accordance with the direction is to continue to finish the review and may, for that purpose, have regard to any record of the proceedings of the review made by the Tribunal as previously constituted.
“(3) In exercising powers under this section, the Principal Member must have regard to the objective set out in subsection 166C(1).
“Division 4—Conduct of review
Documents to be given to the Refugee Review Tribunal
“166D.
An applicant for review by the Tribunal may give the Registrar:
a statutory declaration in relation to any matter of fact that the applicant wishes the Tribunal to consider; and
written arguments relating to the issues arising in relation to the decision under review.
“(2) The Secretary may give the Registrar written argument relating to the issues arising in relation to the decision under review.
Review “on the papers”
“166DA.
If, after considering the material contained in the documents given to the Registrar under sections 166BE and 166D, the Tribunal is prepared to make the decision or recommendation on the review that is most favourable to the applicant, the Tribunal may make that decision or recommendation without taking oral evidence.
“(2) For the purposes of subsection (1), a decision or recommendation made on a review is taken to be the decision or recommendation most favourable to the applicant if there is no other decision or recommendation that:
the Tribunal could make; and
in the Tribunal’s opinion, the applicant would prefer the Tribunal to make.
Where review “on the papers” is not available
“166DB.
Where section 166DA does not apply, the Tribunal:
must give the applicant an opportunity to appear before it to give evidence; and
may obtain such other evidence as it considers necessary.
“(2) Subject to paragraph (1)(a), the Tribunal is not required to allow any person to address it orally about the issues arising in relation to the decision under review.
Applicant may request Refugee Review Tribunal to call witnesses
“166DC.
Where section 166DA does not apply, the Tribunal must notify the applicant:
that he or she is entitled to appear before the Tribunal to give evidence; and
of the effect of subsection (2) of this section.
“(2) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.
“(3) If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant’s wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant’s notice.
Powers of the Refugee Review Tribunal etc.
“166DD.
For the purpose of the review of a decision, the Tribunal may:
take evidence on oath or affirmation; or
adjourn the review from time to time; or
subject to sections 166GC and 166GE, give information to the applicant and to the Secretary; or
require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.
“(2) The Tribunal must combine the reviews of 2 or more RRT-reviewable decisions made in respect of the same non-citizen.
“(3) Subject to subsection (4), the Tribunal in relation to a review may:
summon a person to appear before the Tribunal to give evidence; and
summon a person to produce to the Tribunal such documents as are referred to in the summons; and
require a person appearing before the Tribunal to give evidence either to take an oath or affirmation; and
administer an oath or affirmation to a person so appearing.
“(4) The Tribunal must not summon a person under paragraph (3)(a) or (b) unless the person is in Australia.
“(5) The oath or affirmation to be taken or made by a person for the purposes of this section is an oath or affirmation that the evidence that the person will give will be true.
“(6) A person appearing before the Tribunal to give evidence is not entitled:
to be represented before the Tribunal by any other person; or
to examine or cross-examine any other person appearing before the Tribunal to give evidence.
“(7) If a person appearing before the Tribunal to give evidence is not proficient in English, the Tribunal may direct that communication with that person during his or her appearance proceed through an interpreter.
Tribunal member may authorise another person to take evidence
“166DE.
The power of the Tribunal under paragraph 166DD(1)(a) to take evidence on oath or affirmation for the purpose of a review may be exercised by the Tribunal or on behalf of the Tribunal by:
a person appointed or employed under the Public Service Act 1922; or
another person approved in writing by the Minister for the purposes of this section;
who is authorised in writing by the Tribunal.
“(2) The power of the Tribunal may be exercised under subsection (1):
inside or outside Australia; and
subject to such limitations (if any) as are specified by the Tribunal.
“(3) If a person other than the Tribunal is authorised under subsection (1) to take evidence for the purpose of a review:
the person has, for the purpose of taking that evidence:
all the powers of the Tribunal under subsection 166DD(1); and
the power to administer an oath or affirmation to a person appearing before the first-mentioned person to give evidence; and
for the purpose of the exercise of those powers by that person, this Part has effect (except where the context otherwise requires) as if a reference to the Tribunal included a reference to that person.
“(4) If a person (other than the Tribunal as constituted for the purpose of the review) exercises the power of the Tribunal to take evidence on oath or affirmation for the purpose of a review, the person must cause a written record of the evidence taken to be made and sent to the Tribunal.
“(5) If the Tribunal receives, under subsection (4), a record of evidence given by the applicant, the Tribunal, for the purposes of section 166DB, is taken to have given the applicant an opportunity to appear before it to give evidence.
Review to be in private
“ 166DF. The hearing of an application for review by the Tribunal must be in private.
“Division 5—Decisions of Refugee Review Tribunal
Refugee Review Tribunal to record its decisions etc. and to notify parties
“166E.
Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
sets out the decision of the Tribunal on the review; and
sets out the reasons for the decision; and
sets out the findings on any material questions of fact; and
refers to the evidence or any other material on which the findings of fact were based.
“(2) The Tribunal must give the applicant and the Secretary a copy of the statement prepared under subsection (1) within 14 days after the decision concerned is made.
“(3) Where the Tribunal has prepared the written statement, the Tribunal must:
return to the Secretary any document that the Secretary has provided in relation to the review; and
give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.
Refugee Review Tribunal decisions to be published
“166EA.
Subject to subsection (2), and to any direction under section 166GE, the Registrar must ensure that statements prepared by the Tribunal in accordance with subsection 166E(1) are published.
“(2) The Tribunal must not publish any statement which may identify an applicant or any relative or other dependent of an applicant.
“Division 6—Offences
Failure of witness to attend
“166F. A person who has been served, as prescribed, with a summons, under subsection 166DD(3), to appear before the Tribunal to give evidence and tendered reasonable expenses must not, without reasonable excuse:
fail to attend as required by the summons; or
fail to appear and report from day to day unless excused, or released from further attendance, by the Tribunal.
Penalty: Imprisonment for 6 months.
Refusal to be sworn or to answer questions etc.
“166FA.
A person appearing before the Tribunal to give evidence must not, without reasonable excuse:
when required under section 166DD either to take an oath or to make an affirmation—refuse or fail to comply with the requirement; or
refuse or fail to answer a question that the person is required to answer by the Tribunal.
Penalty: Imprisonment for 6 months.
“(2) Subject to section 166GB, a person must not, without reasonable excuse, refuse or fail to produce a document that a person is required to produce by a summons under section 166DD served on the person as prescribed.
Penalty: Imprisonment for 6 months.
“(3) A person appearing before the Tribunal to give evidence must not knowingly give evidence that is false or misleading in a material particular.
Penalty for a contravention of this subsection: Imprisonment for 12 months.
Contempt of Tribunal
“166FB. A person must not:
obstruct or hinder the Tribunal or a member in the performance of the functions of the Tribunal; or
disrupt the taking of evidence by the Tribunal.
Penalty: Imprisonment for 12 months.
“Division 7—Miscellaneous
Protection of members and persons giving evidence
“166G.
A member has, in the performance of his or her duties as a member, the same protection and immunity as a member of the Administrative Appeals Tribunal.
“(2) Subject to this Part, a person summoned to attend, or appearing, before the Tribunal to give evidence has the same protection, and is, in addition to the penalties provided by this Part, subject to the same liabilities, as a witness in proceedings in the Administrative Appeals Tribunal.
Fees for persons giving evidence
“166GA.
A person, other than the applicant, summoned to appear before the Tribunal to give evidence is entitled to be paid, in respect of his or her attendance, fees, and allowances for expenses, fixed by or in accordance with the regulations.
“(2) The fees and allowances must be paid:
if the applicant notifies the Tribunal under subsection 166DC(2) that he or she wants the Tribunal to obtain evidence from the person—by the applicant; or
in any other case—by the Commonwealth.
Restrictions on disclosure of certain information etc.
“166GB. In spite of anything else in this Act, the Secretary must not give to the Tribunal a document, or information, if the Minister certifies, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest:
because it would prejudice the security, defence or international relations of Australia; or
because it would involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet.
Refugee Review Tribunal’s discretion in relation to disclosure of certain information etc.
“166GC.
This section applies to a document or information if:
the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 166GB(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or
the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.
“(2) If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:
must notify the Tribunal in writing that this section applies in relation to the document or information; and
may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.
“(3) If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:
may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and
may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant.
“(4) If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 166GE in relation to the information.
Disclosure of confidential information
“166GD.
This section applies to a person who is or has been:
a member of the Tribunal; or
a person acting as a member of the Tribunal; or
an officer of the Tribunal; or
a person providing interpreting services in connection with a review by the Tribunal.
“(2) This section applies to information or a document if the information or document concerns a person and is obtained by a person to whom this section applies in the course of performing functions or duties or exercising powers under this Act.
“(3) A person to whom this section applies must not:
make a record of any information to which this section applies; or
divulge or communicate to any person any information to which this section applies;
unless the record is made or the information is divulged or communicated:
for the purposes of this Act; or
for the purposes of, or in connection with, the performance of a function or duty or the exercise of a power under this Act.
Penalty: Imprisonment for 2 years.
“(4) Subsection (3) applies to the divulging or communication of information whether directly or indirectly.
“(5) A person to whom this section applies must not be required to produce any document, or to divulge or communicate any information, to which this section applies to or in:
a court; or
a tribunal; or
a House of the Parliament of the Commonwealth, of a State or of a Territory; or
a committee of a House, or the Houses, of the Parliament of the Commonwealth, of a State or of a Territory: or
any other authority or person having power to require the production of documents or the answering of questions;
except where it is necessary to do so for the purposes of carrying into effect the provisions of this Act.
“(6) Nothing in this section affects a right that a person has under the Freedom of Information Act 1982.
“(7) For the purposes of this section, a person who is providing interpreting services in connection with a review by the Tribunal is taken to be performing a function under this Act.
“(8) In this section:
‘produce’ includes permit access to.
Refugee Review Tribunal may restrict publication or disclosure of certain matters
“166GE.
If the Tribunal is satisfied, in relation to a review, that it is in the public interest that:
any evidence given before the Tribunal; or
any information given to the Tribunal; or
the contents of any document produced to the Tribunal;
should not be published or otherwise disclosed, or should not be published or otherwise disclosed except in a particular manner and to particular persons, the Tribunal may give a written direction accordingly.
“(2) If the Tribunal has given a direction under subsection (1) in relation to the publication of any evidence or information or of the contents of a document, the direction does not:
excuse the Tribunal from its obligations under section 166E; or
prevent a person from communicating to another person a matter contained in the evidence, information or document, if the first-mentioned person has knowledge of the matter otherwise than because of the evidence or the information having been given or the document having been produced to the Tribunal.
“(3) A person must not contravene a direction given by the Tribunal under subsection (1) that is applicable to the person.
Penalty: Imprisonment for 2 years.
Sittings of the Refugee Review Tribunal
“166GF.
Sittings of the Tribunal are to be held from time to time as required, in such places in Australia as are convenient.
“(2) The Tribunal constituted by a member may sit and exercise the powers of the Tribunal even though the Tribunal constituted by another member is at the same time sitting and exercising those powers.
“Division 8—Referral of decisions to Administrative Appeals Tribunal
Interpretation
“166H. In this Division:
‘AAT Act’ means the Administrative Appeals Tribunal Act 1975.
Referral of decisions to Administrative Appeals Tribunal
“166HA.
The Principal Member of the Refugee Review Tribunal may, if the Principal Member considers that a RRT-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 Refugee Review Tribunal of an application for a review of the decision; 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 Refugee 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 166HB.
“(6) If the President of the Administrative Appeals Tribunal directs that the Administrative Appeals, Tribunal will accept the referral, the review by the Refugee Review Tribunal is taken to be closed.
Administrative Appeals Tribunal may accept or decline referral
“166HB.
The President of the Administrative Appeals Tribunal must consider a request under section 166HA 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 application for review of an RRT-reviewable decision:
the application to the Refugee Review Tribunal is taken to have been properly made to the Administrative Appeals Tribunal by the applicant to the Refugee Review Tribunal; and
the AAT Act applies to the review of the RRT-reviewable decision subject to the modifications in this Division.
Modification of definition of ‘member’ in section 3 of the AAT Act
“166HC. Section 3 of the AAT Act applies in relation to an RRT-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 Refugee Review Tribunal;’.
Modification of section 21 of the AAT Act
“166HD. Section 21 of the AAT Act applies in relation to an RRT-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 Refugee Review Tribunal and one other member (not being a Judge); or
a Deputy President, the Principal Member of the Refugee Review Tribunal and one non-presidential member.
‘(1AA) If the Principal Member of the Refugee Review Tribunal had constituted that Tribunal for the review by the Refugee Review Tribunal of the RRT-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 Refugee Review Tribunal); or
a Deputy President and two non-presidential members (not being the Principal Member of the Refugee Review Tribunal).’; and
subsections (2), (3) and (4) were omitted.
Certain sections of the AAT Act do not apply to RRT-reviewable decisions
“166HE. Sections 21A, 27, 28 and 29 of the AAT Act do not apply in relation to RRT-reviewable decisions.
Modification of section 25 of the AAT Act
“166HF. Section 25 of the AAT Act applies in relation to an RRT-reviewable decision as if subsections (6) and (6A) were omitted.
Modification of section 30 of the AAT Act
“166HG. Section 30 of the AAT Act applies in relation to an RRT-reviewable decision as if paragraphs (1)(a) and (b) were omitted and the following paragraphs substituted:
‘(a) the person who, under section 166HB 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
“166HH. Section 37 of the AAT Act applies in relation to an RRT-reviewable decision as if:
subsections (1) to (1D) (inclusive) were omitted and the following subsections substituted:
‘(1) The Principal Member of the Refugee Review Tribunal must forward to the Administrative Appeals Tribunal all documents and other records relating to the proceeding before the Refugee Review Tribunal with respect to the RRT-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 166HA(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
“166HI. Section 38 of the AAT Act applies in relation to an RRT-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 Refugee Review Tribunal by a person under section 166BE of the Migration Act 1958.
Modification of section 43 of the AAT Act
“166HJ. Section 43 of the AAT Act applies in relation to an RRT-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 a RRT-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 166BC(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.
Only new information to be considered in later applications for review
“166HK. If a non-citizen who has made:
an application for review of an RRT-reviewable decision that has been determined by the Administrative Appeals Tribunal or the Refugee Review Tribunal; or
applications for reviews of RRT-reviewable decisions that have been determined by the Administrative Appeals Tribunal, or the Refugee Review Tribunal;
makes a further application for review of an RRT-reviewable decision, the Administrative Appeals Tribunal, in considering the further application:
is not required to consider any information considered in the earlier application or an earlier application; and
may have regard to, and take to be correct, any decision that the Administrative Appeals Tribunal or the Refugee Review Tribunal made about or because of that information.
Minister may substitute more favourable decision
“166HL.
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 RRT-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 or any information that may identify 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 166GC applies
“166HM. If the Refugee Review Tribunal gives to the Administrative Appeals Tribunal a document or information to which section 166GC of this Act applies, the Refugee 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
“166HN. 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 Refugee Review Tribunal.”.
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