ARC Migration Inquiry – Terms of Reference

Migration Inquiry – Terms of Reference

1. Background

1.1. The Administrative Review Council (Council) has resolved to inquire and report on the operation of migration related provisions in the Administrative Review Tribunal Act 2024 (Cth) (ART Act) and Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth) (ART (CTP1) Act).

1.2. The Council’s decision responds to a request made by the Attorney-General on 4 March 2025 that the Council inquire into this matter. The Attorney-General’s request referred to a recommendation of the Senate Legal and Constitutional Affairs Legislation Committee inquiry into the Administrative Review Tribunal Bills, dated 13 May 2024, that the matter be the subject of inquiry by the Council when it was re-established.

2. Scope

2.1. The Inquiry will examine procedure relating to ART review of migration and protection decisions. Specifically, the Inquiry will examine whether amendments made in 2024 to the Migration Act 1958 (Cth) at the time of the establishment of the Administrative Review Tribunal (ART) are appropriate. Some of the amendments were only formal, but continued existing procedural restrictions that applied in review by the Administrative Appeals Tribunal (AAT) of migration and protection decisions. Other provisions in the ART(CTP1) Act introduced new procedural requirements to apply to review of such decisions by the ART. The Inquiry will consider the impact of ART review on primary decisions in the Department of Home Affairs, including aspects of Departmental and first-instance decision-making processes, the history and rationale for the introduction of special provisions for procedure in migration review, including the impact of such provisions on affording procedural fairness in review by the ART. The inquiry will also consider the ongoing impact of the current provisions, including with regard to the effectiveness and efficiency of review. The question posed for the Inquiry is whether it is desirable to retain the provisions, considered individually and as part of the scheme for merits review of migration and protection decisions.

2.2. In the Inquiry, the Council will consider the following provisions affecting procedure for review by the ART, which were dealt with in the ART(CTP1) Act, to which the Senate Committee referred:

1. the exhaustive statement of the natural justice hearing rule: section 357A;
2. information and invitation given by the ART: section 359A;
3. time limitations on making an application for ART review: sections 347(3)-(5), 202(5), 500(6B);
4. provision for issue of a conclusive certificate removing a reviewable decision from review by the ART: section 339;
5. requirements for the ART in drawing inferences when a new claim or evidence is raised in review of a reviewable protection decision: section 367A;
6. provision for procedure under Migration Act to prevail over discretion as to procedure of the ART: section 357A(2A);
7. requirements for hearing by ART of a reviewable protection decision to be in private, and non-disclosure of identifying information: sections 367B, 369;
8. provisions dis-applying rules under the ART Act for giving notice of a decision: sections 66(6), 127(4), 134(7B), 137M(4), 137S(3);
9. provisions dis-applying the requirements under the ART Act for the primary decision-maker to give reasons on request for an ART reviewable decision: sections 66(7), 127(5), 137M(5), 137S(4), 197D(7), 500(6A);
10. provisions dis-applying and replacing certain provisions of the ART Act, relating to notice of ART applications for review, reasons for the decision, disclosure of documents to the ART and relief: sections 336P (except for s 336P(l), 374, 500(6FB);
11. provision making specific requirements relating to access by an applicant to documents: section 362A;
12. provisions restricting ability of ART to have regard to documents: section 500(6H),(6J),(6K);
13. provision dis-applying facility for non-participating party to elect to participate in ART review: section 348A;
14. exclusion of the right to examine or cross-examine: section 366D;
15. restrictions on relief available in ART review: sections 349, 500(6G),(6L),(6M)
16. restrictions on applications to the Guidance and Appeals Panel (GAP) of the ART: section 500AA;
17. special provisions relating to the ART’s statement of reasons for its decision and its notification: sections 368, 368A, 368B;
18. special provisions relating to reinstatement of an application for ART review: section 368C,

2.3. The following are not within the scope of the Inquiry:

1. the making of applications for legal or financial assistance: section 336P(2)(l);
2. restriction on production of protected information or documents to a parliament: section 378; and
3. Part 8 of the Migration Act dealing with judicial review of migration and protection decisions and referral of questions of law by the ART to the Federal Court and the amendments made by the ART(CTP1) Act to Part 8.

3. Consultation

3.1. The Council will consult publicly on the issues outlined in the Terms of Reference. The Council may invite and publish submissions and seek information from Government agencies and other persons or bodies.

3.2. The Council will seek the views of a broad range of stakeholders, including:

1. legal assistance service providers and advocacy organisations that provide support to people receiving and seeking review of migration and protection, including protection matters.
2. relevant Australian Government agencies and authorities
3. academics, researchers and members of the broader legal profession with expertise in migration and protection matters.

4. Timeframe

4.1. The Council will aim to deliver a report on the Inquiry to the Attorney-General by December 2026.