Section 338 of the Migration Act defines Part 5 Reviewable Decisions. This section defines which decisions made by the Minister or their delegate are subject to review by the Tribunal (Part 5 reviewable decisions). Here’s a simplified breakdown:
Generally reviewable decisions include:
- Refusal of a visa granted within Australia, if the application was made within Australia.
- Cancellation of a visa held by someone within Australia, except for specific cases (e.g., Minister’s decision, immigration clearance).
- Refusal of bridging visas granted to people in immigration detention.
- Decisions affecting assessed scores for visas not granted in Australia, if sponsored by certain individuals.
Specific visa types reviewable:
- Refusal of visas that can’t be granted in Australia, if sponsored or nominated by certain individuals within Australia (e.g., citizens, companies).
- Refusal of visas that can’t be granted in Australia, if past residency or close family ties to Australia are criteria.
- Refusal of permanent visas applied for outside Australia, if also grantable within Australia.
Exceptions:
- Decisions covered by other sections (e.g., conclusive certificates, Part 7 reviewable decisions).
- Decisions made during immigration clearance.
- Specific visa types like temporary safe haven visas and fast-track decisions.
Reason to learn more legal provisions about Part 5 Reviewable Decisions.
Section 379AA: Giving Documents by Tribunal Where No Requirement To Do So by Section 379A or 379B Method
Section 379AA of part 5 reviewable decisions states that The Migration Act allows the Tribunal to choose how to deliver documents to people in certain situations. This is if the Act or regulations don’t specify a specific method. This applies if:
- The Act or regulations require or allow the Tribunal to give someone a document, but…
- They don’t say it must be delivered by a specific method from section 379A or 379B (handing, post, etc.), or…
- They don’t say it must be delivered using the method for people in immigration detention.
In these cases, the Tribunal can pick any method it deems appropriate, including those mentioned above.
Additional details:
- If multiple people apply for review together, giving one person the document counts as giving it to all.
- Applicants can authorise someone 18+ to receive documents on their behalf.
- For minors, the Tribunal can deliver documents to someone 18+ responsible for their care (e.g., parent, organisation worker). This doesn’t apply if a group application includes the minor.
- Delivering to the responsible adult counts as delivering to the minor, but the Tribunal can still give the minor a copy.
Section 379A: Methods by Which Tribunal Gives Documents to a Person Other Than the Secretary
When the Tribunal needs to deliver documents to someone other than the Secretary, Section 379A of Part 5 reviewable decisions outlines the approved methods:
Specific Methods for Minors:
- If the recipient is a minor (under 18), the Tribunal can deliver documents to:
- A carer who is at least 18 and has day-to-day responsibility for the minor.
- An adult who works for an organisation that cares for the minor.
- They can use methods like physical delivery, prepaid post, fax, email, or other electronic means.
- This doesn’t apply if the minor is part of a combined application (section 379EA).
General Methods for Delivery:
- Handing in Person: A Tribunal member, officer, or authorised person can hand the document directly to the recipient.
- Delivery to Last Known Address: They can deliver it to someone at the recipient’s last known residential or business address, as long as that person appears to live or work there and is at least 16 years old.
- Prepaid Post or Other Prepaid Means: They can send it by prepaid post or other prepaid delivery services to:
- The recipient’s last address for service (if provided).
- The recipient’s last residential or business address.
- The last known address of a carer (if the recipient is a minor).
- Fax, Email, or Other Electronic Means: They can send it by fax, email, or other electronic means to:
- The recipient’s last known fax number, email address, or other electronic address.
- The last known fax number, email address, or other electronic address of a carer (if the recipient is a minor).
- Documents Given to Carers:
If the Tribunal gives a document to a carer of a minor, it’s considered as having been given to the minor. However, they can still provide a copy directly to the minor if needed.
Section 379B: Methods by Which Tribunal Gives Documents to the Secretary
Section 379B of part 5 reviewable decisions outlines the specific methods the Tribunal must use when required to deliver documents to the Secretary:
1. Physical Delivery:
A Tribunal member, officer, or authorised person can personally hand the document to the Secretary or an authorised officer.
2. Sending by Mail or Other Means:
The Tribunal can send the document by mail or other means within 3 business days of its date. The document must be sent to an address specifically designated by the Secretary for receiving such documents.
3. Transmission by Fax, Email, or Other Electronic Means:
The Tribunal can electronically transmit the document through fax, email, or other approved means.
The document must be sent to the last fax number, email address, or other electronic address provided by the Secretary for this purpose.
Section 379C: When a Person Other Than the Secretary Is Taken To Have Received a Document From the Tribunal
Section 379C of part 5 reviewable decisions explains how and when someone (not the Secretary) is considered to have received a document delivered by the Tribunal using the methods outlined in Section 379A (including cases involving minors, covered by Section 379AA):
1. Handing in Person:
If the Tribunal hands the document directly to the person (as in Section 379A(2)), they receive it at the time of handover.
2. Delivery to Last Known Address:
If the Tribunal hands the document to someone at the recipient’s last known address (according to Section 379A(3)), the recipient is considered to have received it at the time of delivery.
3. Prepaid Post or Other Means:
If the document is sent by prepaid post or other means (following Section 379A(4)), the recipient is considered to have received it:
Within 7 working days at the address (if both sender and address are in Australia).
21 days after the date of the document (in any other case).
4. Fax, Email, or Electronic Means:
If the document is transmitted electronically (as per Section 379A(5)), the recipient is considered to have received it at the end of the day it’s transmitted.
5. Errors in Delivery:
If the Tribunal tries to deliver a document using a method from Section 379A (including minors covered by Section 379AA) but makes a mistake, and the recipient still receives the document or a copy, they are still considered to have received it at the times mentioned above. However, if the recipient can prove they received it later, that becomes the official receipt time.
Section 379D: When the Secretary Is Taken to Have Received a Document From the Tribunal
Section 379D of part 5 reviewable decisions explains how and when the Secretary is considered to have received a document sent by the Tribunal using the methods outlined in Section 379B (including cases involving minors, covered by Section 379AA):
1. Handing in Person:
If the Tribunal hands the document directly to the Secretary or an authorised officer (following Section 379B(2)), the Secretary is considered to have received it at the time of handover.
2. Sending by Mail or Other Means:
If the document is sent by mail or other means (as per Section 379B(3)), the Secretary is considered to have received it:
Within 7 working days at the address (if both sender and address are in Australia).
21 days after the date of the document (in any other case).
3. Fax, Email, or Electronic Means:
If the document is transmitted electronically (as in Section 379B(4)), the Secretary is considered to have received it at the end of the day it’s transmitted.
Section 379EA: Giving Documents by Tribunal – Combined Applications
Section 379EA of part 5 reviewable decisions outlines the following:
When multiple people apply for a review together:
If two or more individuals join together to request a review of a decision, any documents delivered to one person regarding the review are considered delivered to all of them.
Note:
If the Tribunal delivers a document to someone using a method from Section 379A, that person is considered to have received it at the specific timeframe established for that method in Section 379C.
Section 379G explains how documents can be delivered to someone’s authorised representative.
Section 379F: Giving Documents Etc. to the Tribunal
This Section explains how someone involved in a review of a decision (“Part 5 reviewable decisions”) can submit documents or other materials to the Tribunal:
1. Handing it to a Tribunal officer: You can physically give the document or item to an officer working for the Tribunal.
2. Using a method specified in the Administrative Appeals Tribunal Act 1975: There might be specific ways to submit documents outlined in directions under Section 18B of this Act.
3. Following any method prescribed by regulations: If the regulations for Part 5 reviews establish a particular way to submit documents, you must follow that method.
Section 379G: Authorised Recipient
Section 379G the applicant for a review of a decision (Part 5 reviewable decisions), to designate another person as your authorised recipient for receiving documents related to the review. Here’s how it works:
1. Authorising someone:
You must apply for the review of the decision.
You must give the Tribunal written notice with the name and address of the person you want to be your authorised recipient.
2. What happens next:
Instead of sending documents to you directly, the Tribunal will send them to your authorised recipient.
The recipient receives documents at the same timeframes specified for the delivery method used (see Section 379C).
3. Additional notes:
This provision also applies even if your application for review is not technically perfect (e.g., not properly made under Section 347).
The notice authorising your recipient also allows them to receive documents notifying them of any issues with your application.
4. Who gets the document?
If the Tribunal sends a document to your authorised recipient, it’s considered delivered to you.
However, the Tribunal can still send you a copy of the document if they wish.
5. Changing or withdrawing the authorisation:
You (the applicant) can change or withdraw the authorisation at any time, as long as it still follows any regulations about authorised recipients.
Your authorised recipient can also update their address on the authorisation notice.
6. When this doesn’t apply:
This section does not apply to documents or communication during your actual appearance before the Tribunal. You will receive those directly.
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