Handbook of ART Legal Procedure
Chapter 6:
by the ART
Constitution and
Reconstitution
Current as at 28 August 2025
WA FOI
RNING
This work is protected by copyright.
You may download, print and reproduce this
material in unaltered form only (retaining this
under
notice) for your personal, non-commercial use or
educational use within your organisation.
Apart from any use as permitted under the
Copyright Act 1968 all other rights are reserved.
© Commonwealth of Australia
on 28 August 2025
Released
link to page 4 link to page 4 link to page 5 link to page 5 link to page 5 link to page 6 link to page 6 link to page 6 link to page 7 link to page 7 link to page 7 link to page 8 link to page 8 link to page 9 link to page 9 link to page 10 link to page 10 link to page 10 link to page 11 link to page 11 link to page 11 link to page 12 link to page 12 link to page 13
6. CONSTITUTION AND RECONSTITUTION
6.1 Constitution of the Tribunal
6.2 Constitution power
Requirement for a written direction?
Consultation requirement
Notice requirement
6.3 Rules for constitution of the Tribunal
Exceptions – Guidance and appeals p by the ART
anel
Constitution rules for s 122 referrals
Constitution rules for s FOI
128 referrals – issues of significance
Constitution rules for s 128 referrals – material error
6.4 Power to reconstitute the Tribunal
Recon under
stitution before hearing commences
Reconstitution after hearing commences
Reconstitution - unavailability of member etc.
Reconstitution - Member directed not to take part
on 28 August 2025
Reconstitution - Quick and efficient conduct of a proceeding
Interests of justice and consultation with member concerned
Released Reconstitution – involvement in dispute resolution process
Reconstitution – conflict of interest or bias
Reconstitution – as GAP after hearing starts
General requirements for reconstitution
Which provision is applicable? - Whether the hearing ‘has
commenced’
Effect of error in the reconstitution process
1
Last updated/reviewed: 23 June 2025
link to page 13 link to page 14 link to page 14 link to page 14 link to page 15 link to page 16 link to page 16 link to page 16 link to page 18 link to page 18 link to page 18 link to page 19 link to page 20 link to page 20 link to page 20 link to page 21 link to page 23 link to page 23 link to page 23
6.5 Constitution following court remittal
Source of power to constitute following court remittal on appeal under
s 172
Source of power to constitute following other court remittals
Constitution – same or different member?
Power of court to direct how Tribunal is to be constituted
Progressing court remittals where the remitting judgment is the
subject of an appeal
6.6 Review proceedings following reconstitution or court remittal
Review proceedings following recons by the ART
titution under Subdivision D
Review proceedings following court remittal
Role of findings of fact of previous Tribunal
Procedural requiremen FOI
ts under the Migration Act following
reconstitution or court remittal
Invitations to comment on adverse information
Hearing obligation
Sum under
mary
Reasons for remittal
6.7 Recusal requests
on 28 August 2025
Released
2
Last updated/reviewed: 23 June 2025
link to page 4 link to page 4 link to page 4
HALP: Chapter 6 – Constitution and reconstitution
6. CONSTITUTION AND RECONSTITUTION
6.1
Constitution of the Tribunal
Under the
Administrative Review Tribunal Act 2024 (the ART Act, or the Act), the Tribunal is
comprised of the President, who must be a Judge of the Federal Court of Australia (the Federal
Court), Deputy Presidents, who may be Judicial or non-Judicial, senior members, and general
members. A Judicial Deputy President must be a Judge of the Federal Court or the Federal
Circuit and Family Court of Australia (Division 1)
.1
For the purposes of a particular proceeding in the Tribunal, the Act requires that the Tribunal
be constituted to a particular member or members according to specified rules. The powers to
constitute (or reconstitute) the Tribunal lie with the Presidentby the ART
; however they have largely been
delegated, in most cases to Jurisdictional Area Leaders (JAL) and/or List Leaders and/or the
guidance and appeals panel (GAP) Registrar
.2
The powers, rules, and procedures relating to the constitution or reconstitution of the Tribunal
for the purposes of a proceeding are set out i FOI
n the ART Act and associated instruments. For
proceedings generally, they are set out in Part 4 Division 4 of the Act. Constitution of the
Tribunal following the remittal of a matter back to the Tribunal from a court is dealt with in Part
7 Division 4. These provisions are discussed below. Special rules apply for proceedings in the
Intelligence and Security jurisdictional area. These are set out in Part 6 Division 3.
These provisions comm under
enced on 14 October 2024, when the Tribunal was established
replacing the Administrative Appeals Tribunal (AAT). Under transitional provisions,
proceedings commenced in the AAT and not finalised before 14 October 2024 (transition time)
must be continued and finalised by the ART, and anything done in or in relation to the
proceeding before that time continues to have effect
.3 Accordingly, the constitution of any
proceeding that was lawfully done before transition time continues to have effect.
6.2
Constitutioon 28 August 2025
n power
The constitution power is contained in s 37 of the Act which applies to all constitutions and
Released
reconstitutions of the Tribunal. The general
rules for constitution are set out in s 39 and its
exceptions in ss 40 – 42 relating to the GAP.
Section 37 provides that the President may direct which member or members are to be
assigned to constitute the Tribunal for the purposes of a particular proceeding. It also sets out
1
Administrative Review Tribunal Act 2024 (the Act), s 10 and s 4 definitions. Unless otherwise specified, all references to
legislation are to the
Administrative Review Tribunal Act 2024, No. 40, 2024, and all references and hyperlinks to commentaries
are to materials prepared by Legal Services.
2
Administrative Review Tribunal (President’s Functions and Powers) Delegation No.2 of 2025, 23 April 2025. ‘Jurisdictional Area
Leader’ is defined in s 4 of the Act; ‘GAP Registrar’ means a staff member who is engaged as, or performing the duties of,
Registrar of the Guidance and Appeals Panel; ‘List Leader’ means a Deputy President or a Senior Member assigned by the
President to lead one or more Lists under s 198(1) of the Act: see s 5 of the Delegation.
3
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, Schedule16, Pt 5.
3
Last updated/reviewed: 23 June 2025
link to page 5 link to page 5 link to page 5 link to page 5 link to page 5
HALP: Chapter 6 – Constitution and reconstitution
the requirements for directions, and a requirement to notify parties that the proceeding has
been constituted.
In making a direction under s 37, the President (or delegate) must comply with the
requirements specified in the Act and any other requirements specified in the practice
directio
ns.4
Requirement for a written direction?
It is implicit in s 37 of the ART Act that a direction as to how the Tribunal is to be constituted
is not required to be in writing. Subsections (1) and (2) simply provide that the President may
direct which member or members are to constitute the Tribunal for the purposes of a
proceeding; and subsection (4) clarifies that
if a direction is made in writing, the direction is
not a legislative instrume
nt.5
The Tribunal’s practice varies depending on the case ma by the ART
nagement system in use for the
proceeding but in general a written direction is prepared for the President or their delegate to
sign. In the absence of a written direction in relation to a particular proceeding, whether the
Tribunal was properly constituted for that proceeding will be a question of evidence. Under the
presumption of regularity, where a public offi FOI
cial or authority purports to exercise a power, a
rebuttable presumption arises that all conditions necessary to the exercise of that power have
been fulfilled
;6 so, for example, if a member of the Tribunal conducts a review, there is a
rebuttable presumption that the Tribunal was properly constituted for the purposes of that
proceeding. If that presumption is rebutted by evidence that the Tribunal was not properly
constituted, whether that procedural defect results in invalidity of its decision will depend on
whether that defect is considered to be of a character that Parliament intended that outcome
.7
Consultation require
under
ment
Under the
rules for constitution (discussed below), for some types of proceeding at least one
of the members of the constituted Tribunal must be the President or a Deputy President (either
Judicial or non-Judicial). Before directing that a Judicial Deputy President is to constitute the
Tribunal for the purpo
on 28 August 2025
ses of a proceeding, the President must consult the Chief Justice of the
relevant court
.8
Notice requirement
Released
Once the President (or delegate) constitutes the Tribunal for the purposes of a proceeding,
4 s 37(3). There are currently no relevant practice directions.
5 By contrast, AAT Act s 19A(1)(a) provided that the President may give
written directions in relation to these matters; however
in the context of a similarly worded provisions in the Migration Act as in force in 2000 it has been held that if the Principal Member
or delegate were to give a direction other than in writing it would not invalidate the Tribunal’s authority to proceed with the review,
a fortiori where it is the Principal Member or delegate who constitutes himself or herself as the member: see
Cabal v MIMA (No
4) [2000] FCA 1806 at [56].
6 See eg
McLean Bros & Rigg Ltd v Grice [1906] HCA 1; (1906) 4 CLR 835 at 849,
Minister for Natural Resources v NSW
Aboriginal Land Council (1987) 9 NSWLR 154 at 164 and
McHugh v MICMSMA [2020] FCA 416 at [329]-[337].
7 See
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [91]-[93].
8 s 38. This is a new provision which recognises the responsibility the Chief Justice of a court has to ensure the court’s workload
can be appropriately discharged: EM at [281]-[382].
4
Last updated/reviewed: 23 June 2025
link to page 6 link to page 6 link to page 6 link to page 6 link to page 6 link to page 6 link to page 6 link to page 6 link to page 6 link to page 6 link to page 6 link to page 6
HALP: Chapter 6 – Constitution and reconstitution
each party to the proceeding (other than a non-participating part
y9) must be given written
notice that the Tribunal has been constituted, and if the Tribunal is constituted by the GAP
,10
the notice must state this
.11 The notice does not however need to specify who is to constitute
the Tribunal, or who is to preside
.12
These are new requirements, was added to provide greater visibility to parties as to the
progress of their matter
;13 however the Act is silent on when the notice must be provided.
6.3
Rules for constitution of the Tribunal
The
general rule is that for a particular proceeding the Tribunal must be constituted by one,
two, or three members
,14 but cannot have more than one member who is a Judge
.15 The
Tribunal may be constituted by more than one member only if the President (or delegate)
considers it appropriate (a) because the proceeding raises a complex issue, or (b) because
one or more of the members have particular relevant
by the ART
expertise, or (c) in the interests of
justice
.16 If the Tribunal is constituted by more than one member for the purposes of a
proceeding, the President (or delegate) must direct which member is to preside
.17
The general rule in s 39 is subject to exceptions where an application for review has been
referred to the GAP.
Exceptions – Guidance and appeals pa FOI
nel
Part 5 of the Act establishes a GAP within the Tribunal, which is a way of constituting the
Tribunal at a more senior level for the review of some primary decisions, or the re-review of
some Tribunal decision
s.18under
The GAP has the power to hear and determine review applications
referred to it by the President that raise an issue of significance to administrative decision-
making
,19 and to review and determine Tribunal decisions referred to it by the President that
may contain a material error of fact or law
or that raise an issue of significance to administrative
decision-making
.20
Constitution rules fo on 28 August 2025
r s 122 referrals
If the President refers an
application for review of a decision to the GAP under s 122 because
the application raises an issue of significance to administrative decision-making, the Tribunal
Released
must be constituted for the purposes of the proceeding by 2 or 3 members, one of whom must
9 Defined in s 61. Se
e Part 2 ‘Conduct of the Review’. 10 See below.
11 s 37(6) and (7).
12 s 37(5).
13 See Explanatory Memorandum (EM) to the Administrative Review Tribunal Bill 2023 at [379]-[380]. Unless otherwise stated,
all references to the EM are to this document.
14 s 39(1).
15 s 39(3).
16 s 39(2).
17 s 37(2).
18 s 121 Simplified outline of Part 5 Guidance and appeals panel. For details see the
Guidance and Appeals Panel home page. 19 s 122.
20 s 128.
5
Last updated/reviewed: 23 June 2025
link to page 7 link to page 7 link to page 7 link to page 7 link to page 7
HALP: Chapter 6 – Constitution and reconstitution
be the President or a Deputy Preside
nt.21
Constitution rules for s 128 referrals – issues of significance
If the President refers a decision of the Tribunal to the GAP under s 128 on the basis that the
Tribunal decision raises an issue of significance to administrative decision-making, the
Tribunal
must be constituted for the purposes of the proceeding by 2 or 3 members, one of
whom must be the President or a Deputy President, and unless the parties agree otherwise,
none of the members can be a person, or one of the persons, who constituted the Tribunal for
the purposes of the proceeding in which the Tribunal decision was mad
e.22
Constitution rules for s 128 referrals – material error
If the President refers a Tribunal decision to the GAP on the basis that the decision may have
been materially affected by an error of fact or law, and is no by the ART
t satisfied that the decision raises
an issue of significance to administrative decision-making, the Tribunal must be constituted
for the purposes of the proceeding by 1 or 2 or 3 members. Unless the parties agree
otherwise, none of the members can be a person, or one of the persons, who constituted the
Tribunal for the purposes of the proceeding i FOI
n which the Tribunal decision was made
.23
If the GAP is constituted by a single member, they must be more senior than the most senior
person involved in making the Tribunal decision; and if constituted by more than one member,
the presiding member must be more senior than the most senior person involved in making
the Tribunal decision
.24
6.4
Power to r
under
econstitute the Tribunal
‘Reconstitute the Tribunal’, in relation to a proceeding, is defined to mean revoke the direction
made under s 37(1) in relation to the proceeding and make another direction under that
provision in relation to the proceeding
.25
Subdivision D of Part 4 on 28 August 2025
of the Act deals with reconstitution of the Tribunal, including when a
matter
must be reconstituted for specified reasons.
The grounds upon which a matter may, or must, be reconstituted depend on whether or not
Released
the hearing of a proceeding has commenced. Notably, the powers to reconstitute
before the
hearing starts (s 43), are wider because at that stage reconstitution is likely to involve less
disruption to the proceeding and the parties. In comparison, reconstituting the Tribunal for the
purposes of a proceeding
after the hearing has started (s 44) is intended to be more confined
because it will involve more disruption, and also because it may be seen as impinging upon
21 s 40.
22 s 41.
23 s 42.
24 s 42. Subsection 42(7) sets out the order of seniority of members for the purposes of this provision.
25 s 4.
6
Last updated/reviewed: 23 June 2025
link to page 8 link to page 8 link to page 8 link to page 8 link to page 8 link to page 8 link to page 8 link to page 8 link to page 8
HALP: Chapter 6 – Constitution and reconstitution
the independence of the Tribunal
.26
Reconstitution before hearing commences
Under s 43 of the Act
,27 the President (or delegate) may reconstitute the Tribunal at any time
before the start of the hearing of a proceeding. There are no specified grounds upon which a
matter can be reconstituted prior to the hearing of a proceeding commencing. Rather, this
provision is broad enough to encompass any reason. It is intended to give the President the
power and flexibility to reassign which member or members will deal with particular
proceedings in response to, for example, changing availability of members, changing
priorities, or resourcing constraints, or to avoid potential conflicts of interest
.28
This power is also available to be exercised if, before the hearing commences, s 89 (eligibility
of person conducting dispute resolution process to sit as a member) applies in relation to the
member, or one of the members, constituting the Tribunal for the purposes of the proceeding
.29
The President has delegated this power to JALs, List Lead
by the ART
ers and the GAP Registrar
.30
Reconstitution after hearing commences
The President may reconstitute the Tribunal afFOI
ter the hearing of a proceeding commences, in
any of the following specified circumstances:
•
member unavailable - where the member, or one of the members, who constitutes
the Tribunal for the purposes of the proceeding stops being a member, or is for any
reason unavailable, or is directed by the President not to take part in the proceeding
;31
or the President under
considers that reconstituting the Tribunal is in the interests of
achieving the quick and efficient conduct of the proceeding
;32
•
member’s involvement in dispute resolution process - where the member, or one of
the members, who constitutes the Tribunal for the purposes of a proceeding becomes
ineligible to sit as a member under s 89 because of involvement in a dispute resolution
process
;33
•
conflict of int
on 28 August 2025
erest or bias – where the President (or delegate) is satisfied that the
member or a member constituting the Tribunal for the purposes of a proceeding has
a conflict of interest or actual or apprehended bias in relation to the proceeding
;34 and
Released
•
referral to GAP after hearing starts – the Tribunal must be reconstituted for the
purposes of a proceeding if the application to which it relates is referred to the GAP
26 EM at [410]-[411].
27 equivalent to AAT Act s 19D(1).
28 EM at [404].
29 Under s 89, a member who has been involved in a dispute resolution process in relation to a proceeding may no longer continue
to take part in the proceeding if a party objects. In that case, the Tribunal must be reconstituted. See EM at [412].
30
Administrative Review Tribunal (President’s Functions and Powers) Delegation No.2 of 2025, Sch 1 item 7.
31 s 44(1)(a)(i), (ii) and (iii) respectively; equivalent to AAT Act s 19D(2)(a)(i), (ii) and (iii).
32 s 44(1)(b), equivalent to AAT Act s 19D(2)(b).
33 s 45. This is a new provision, intended to give effect to s 89 (equivalent to AAT Act s 34F). See EM at [411].
34 s 46. This is new, with no AAT equivalent.
7
Last updated/reviewed: 23 June 2025
link to page 9 link to page 9 link to page 9 link to page 9 link to page 9 link to page 9 link to page 9 link to page 9 link to page 9 link to page 9 link to page 14
HALP: Chapter 6 – Constitution and reconstitution
under s 122
.35
Reconstitution - unavailability of member etc.
The President may reconstitute the Tribunal at any time after the start of the hearing of a
proceeding if the member or one of the members constituting the Tribunal for the purposes of
the proceeding stops being a member or is for any reason unavailable
.36 The President has
delegated this power to JALs, List Leaders and the GAP Registrar
.37
A member may generally be regarded as ‘unavailable’ in this context if, for example, the
member is ill, dies, resigns, or takes lea
ve.38 However, while this provision is expressed in
broad terms, it would not encompass matters such as conflict of interest or bias, which are
addressed under a separate provision (discussed below)
.39 ‘Unavailable’ in this context also
does not extend to a member who is, by order of a court, precluded from being constituted as
the Tribunal on a particular review
.40
The Tribunal may also be reconstituted at any time after the by the ART
start of the hearing if the member
or one of the members constituting the Tribunal is directed by the President not to take part in
the proceeding
,41 or the President considers that reconstituting the Tribunal is in the interests
of achieving the quick and efficient conduct FOI
of the hearin
g.42 These powers have not been
delegated and are only available to the President.
Note that these particular reconstitution powers can only be exercised if the President (or
delegate) considers that it is in the interests of justice, and has consulted each member who
as result would cease to be a member of the Tribunal as constituted if it is reasonably
practicable to do so (see discussion below)
.43
Reconstitution - Membe under
r directed not to take part
The President may also reconstitute the Tribunal at any time after the start of the hearing of
the proceeding if the member or one of the members constituting the Tribunal is directed by
the President not to t
on 28 August 2025
ake part in the proceeding
.44
Subsection 44(3) authorises the President to direct that a member not take part in a
proceeding if he or she considers that it is in the interests of justice to do so and has consulted
Released
35 s 47. This is new, with no AAT equivalent.
36 s 44(1)(a)(i) and (ii). Equivalent to AAT Act s 19D(1) and (2)(a)(i) and (ii).
37
Administrative Review Tribunal (President’s Functions and Powers) Delegation No.2 of 2025, Sch 1 item 8.
38 See, for example,
obiter dicta in
MZZZW v MIBP [2015] FCAFC 133 at [87] considering the reconstitution powers in s 422(1)(b)
of the Migration Act as in force in August 2013 which was in similar terms to AAT Act s 19D(2)(a)(ii), and now s 44(1)(a)(ii) of the
Act.
39 See ss 45, 46 and 47. Contrast AAT Act where s 19D (equivalent to ART Act s 44) was the only provision for reconstitution
and was construed to cover such circumstances as where a member makes him or herself unavailable due to a perceived conflict
of interest or where the circumstances of the case could give rise to reasonable apprehension of bias.
40 See
obiter dicta in
MZZZW v MIBP [2015] FCAFC 133 at [87] considering the reconstitution powers in s 422(1)(b) of the
Migration Act as in force in August 2013 which was in similar terms to AAT Act s 19D(2)(a)(ii) and now s 44(1)(a)(ii) of the Act.
And see also s 183(2), discussed
below. 41 s 44(1)(iii). The president may direct that a member not take part in a proceeding of the Tribunal if the President considers that
it is in the interests of justice to do so; and has consulted the member if it is reasonably practicable to do so: s 44(3).
42 s 44(1)(b).
43 s 44(2). Equivalent to AAT Act s 19D(5).
44 s 44(1)(a)(iii). Equivalent to AAT Act s 19D(2)(a)(iii).
8
Last updated/reviewed: 23 June 2025
link to page 10 link to page 10 link to page 10 link to page 10 link to page 11 link to page 10 link to page 10 link to page 10
HALP: Chapter 6 – Constitution and reconstitution
the member if it is reasonably practicable to do so (see discussion below)
.45
Neither the power to direct that a member not take part in a proceeding nor the power to
reconstitute in those circumstances has been delegated. At present, they can only be
exercised by the President personally.
Reconstitution - Quick and efficient conduct of a proceeding
Under s 44(1)(b) the President may reconstitute a matter at any time after the
ly.
ART
start of the
hearing of a proceeding if the President considers that reconstituting the Tribunal is in the
interests of achieving the quick and efficient conduct of the proceeding
.46 This power has not
been delegated and can only be exercised by the President personal
Interests of justice and consultation with member concerned
the
There are limitations on reconstituting the Tribunal after tby
he hearing starts for any of the
reasons specified in s 44(1).
Firstly, the President (or delegate) must be satisfied that it is in the interests of justice to do
so
.47 The circumstances that might engage FOI
this provision are i 2025
ntended to be broad. For
example, the President may form the view that a particular proceeding should be dealt with by
members of a particular gender, due to the nature of the applicant and the evidence involved,
which may not become apparent until after the hearing commences
.48 However they would
generally not encompass matters such as conflict of interest or bias, which are addressed
under a separate provision (discusse
d below). Ultimately whether it is in the interests of justice
for a proceeding to be re under
constituted will t
s reason August
urn upon the particular facts of each case.
Secondly, the President must consult with each member who would cease to be a member of
the Tribunal as constituted if it i
28 ably practicable to do so
.49 There is no specified
statutory process for the consultation, but it is to be done in a way which is considered
reasonable in all the circumstan
ces.50
Reconstitution – invo on
lvement in dispute resolution process
Section 45 enables the President to reconstitute the Tribunal at any time after the start of the
Released
hearing of a proceeding if s 89 (eligibility of person conducting dispute resolution process to
sit as a member) applies in relation to the member, or one of the members constituting the
Tribunal for the purposes of the proceeding
.51 The President has delegated this power to JALs,
45 s 44(3). Equivalent to AAT Act s 19D(5).
46 s 44(1)(b), equivalent to AAT Act s 19D(2)(b).
47 s 44(2)(a). Equivalent to AAT Act s 19D(6).
48 EM at [410].
49 s 44(2)(b). Equivalent to AAT Act s 19D(6)(b).
50 See for example
1419015 (Migration) [2016] AATA 3075 at [49]–[54] in which the President detailed his consultation with the
presiding Member before deciding whether or not exercise his power in s 19D(2)(a)(iii). The Member in that case agreed to take
no further action in the case until seven days after the President’s decision was made. That decision was made under the
provisions that applied before 14 October 2024 but which are relevantly the same as those that apply under the ART Act.
51 s 45. Equivalent to AAT Act s 19D(1) and (2)(a)(i) and (ii).
9
Last updated/reviewed: 23 June 2025
link to page 11 link to page 11 link to page 11 link to page 11 link to page 11 link to page 11 link to page 11 link to page 11 link to page 11 link to page 11
HALP: Chapter 6 – Constitution and reconstitution
List Leaders and the GAP Registrar
.52
Dispute resolution processes are provided for in Part 4 Division 6 Subdivision C of the Act, to
promote the objective of providing an informal, flexible, and non-adversarial method of merits
review
.53 Under s 88(1)(a), evidence of things said or done for the purpose of a dispute
resolution process is not admissible in a proceeding in the Tribunal. To ensure that this
protection is not undermined, s
8954 provides that a member who has been involved in a
dispute resolution process in relation to the proceeding may no longer continue to take part in
the proceeding if a party object
s.55 The reconstitution power in s 45 is a new provi ART
sion intended
to give effect to those protections. The requirement for a member to cease taking part in a
proceeding, and the power for the President to reconstitute the Tribunal if so, protects the
integrity and confidentiality of dispute resolution processes
.56
Reconstitution – conflict of interest or bias
The President may reconstitute the Tribunal at any time after the the
by start of the hearing of a
proceeding if satisfied that the member or one of the members constituting the Tribunal for the
purposes of the proceeding either (a) has a conflict of interest in relation to the proceeding or
(b) has an actual or apprehended bias in relation to the proceeding
.57 This is a new provision,
added to promote the Tribunal’s objective of FOI
providing a method of 2025
review that is fair and just,
and promoting public trust and confidence in the Tribunal. The President has delegated this
power to JALs
.58 As noted above, the broad power under s 43 is also available for
reconstitution to avoid potential conflicts of interest or bias before the hearing starts.
Reconstitution – as GAP after hearing starts
The President
must reco under
nstitute the Tribu
esident
August
nal for the purposes of a proceeding if, at any time
after the start of the hearing of the proceeding, the application is referred to the GAP by the
President under s 122
.59 The Pr 28 has delegated this power to the GAP Registrar
.60
Under the instrument of delegation the President must be consulted prior to the exercise of
the power
.61
General requireme on
nts for reconstitution
As noted above, ‘reconstituting the Tribunal’ means revoking the s 37(1) direction and making
Released
another direction under that provision. This triggers the notification requirements under ss
37(5), (6) and (7); and the rules for constitution will apply: either the general rules in s 39, or
the exception in s 40 if the application to which the proceeding relates is referred to the GAP.
52
Administrative Review Tribunal (President’s Functions and Powers) Delegation No.2 of 2025, Sch 1 item 9.
53 EM at [584].
54 Equivalent to AAT Act s 34F.
55 See EM at [595].
56 EM at [411].
57 s 46. Equivalent to AAT Act s 19D(1) and (2)(a)(i) and (ii).
58
Administrative Review Tribunal (President’s Functions and Powers) Delegation No.2 of 2025, Sch 1 item 10.
59 s 47.
60
Administrative Review Tribunal (President’s Functions and Powers) Delegation No.2 of 2025, Sch 1 item 11.
61
Administrative Review Tribunal (President’s Functions and Powers) Delegation No.2 of 2025, Sch 1 item 11 Column 4.
10
Last updated/reviewed: 23 June 2025
link to page 6 link to page 12 link to page 12 link to page 12 link to page 12 link to page 12 link to page 12 link to page 12
HALP: Chapter 6 – Constitution and reconstitution
These requirements and rules are discussed
above.
In contrast to the AAT Act which it replaced, the ART Act does not expressly stipulate that
when reconstituting the Tribunal (whether before or after the start of the hearing), the President
must have regard to the Tribunal’s objective set out in s 9
.62 However it is intended that the
President, the Principal Registrar, members and staff consider that objective as they discharge
their function
s.63 As such, when reconstituting (or constituting) the Tribunal, the President or
delegate will be expected to consider the Tribunal’s objective of providing an independent
mechanism of review that: is fair and just; ensures that applications to the ART
Tribunal are
resolved as quickly, and with as little formality and expense, as a proper consideration of the
matters before the Tribunal permits; is accessible and responsive to the diverse needs of
parties to proceedings; improves the transparency and quality of government decision-
making; and promotes public trust and confidence in the Tribunal
.64
Where a proceeding has been reconstituted, the Tribunal as reconsti
oceeding the
tuted must continue the
proceeding; and
may have regard to any record of the pr by before the Tribunal as
previously constituted, including a record of any evidence taken in the proceeding, and any
document or thing relating to the proceeding given to the Tribunal as previously constituted
.65
This means it does not need to start again, the proceeding can continue smoothly, parties do
not need to re-provide evidence or document FOI
s, and disruptions
2025
caused by the reconstitution
can be kept to a minimum, thus promoting the objective of resolving applications quickly and
with as little expense as possible. However the reconstituted Tribunal also has discretion to
inform itself on any matter in any manner it sees fit
.66
Which provision is applicable? - Whether the hearing ‘has commenced’
Whether the hearing ‘has under
commenced’ for t
sion on t August
he purposes of the reconstitution provisions wil be
clear in most cases; but will be less clear if there has been no hearing, for example because
the parties consented to a deci
ding a per 28 he paper
s,67 or the applicant did not attend the
scheduled hearin
g.68 In these circumstances, having regard to the stated purposes of the
distinct reconstitution provisions (including minimising disruption where the hearing has
commenced, and avoi
subsequently became on ception of interference with the Tribunal’s independence),
whether the hearing may properly be considered to have ‘commenced’ may depend on the
circumstances, and how far the proceeding has progressed. For example, if an application
has been dismissed for non-attendance at the scheduled hearing but the member
Released unavailable before the dismissal was confirmed or the matter
reinstated, it would likely be regarded as engaging s 44. This is because a hearing had by
then been scheduled even though the applicant did not attend, and the proceeding had
progressed to a point where the member had been able to elect to dismiss the application.
62 Contrast AAT Act s 19D(7), referring to s 2A.
63 EM at [224].
64 s 9. Broadly equivalent to AAT Act s 2A.
65 s 48. Broadly equivalent to AAT Act s 19D(4).
66 EM at [421]-[422].
67 s 106(2).
68 s 99.
11
Last updated/reviewed: 23 June 2025
link to page 13 link to page 13 link to page 13 link to page 13 link to page 13 link to page 13
HALP: Chapter 6 – Constitution and reconstitution
Effect of error in the reconstitution process
There is some authority to suggest that even if the wrong legislative provision is relied upon
in reconstituting the Tribunal there will not be a jurisdictional error invalidating the Tribunal
decision. However these cases have concerned the constitution and reconstitution provisions
in the Migration Act and may not provide the same guidance in the considerably more detailed
ART Act provisions. Nevertheless, those cases suggest that merely referring to the wrong
legislative provision when reconstituting the Tribunal will not result in jurisdictional error
invalidating the Tribunal’s decision, provided the correct statutory procedures
depend on ART
are complied
with in substance
.69 On the other hand, if the Tribunal has purported to rely on the wrong
provision (rather than simply referring to the wrong provision by mistake), whether this will
invalidate the resulting Tribunal decision is likely to similarly
the whether the
procedures for the correct provision have nevertheless been complied with and if not, whether
departure from those procedures is considered to be material to the decision.
6.5
Constitution following court remittal
There are a number of avenues of judicial review or appe by
al from decisions of the Tribunal,
under a range of enactments and under the
FOI
Constitution, each 2025
of which can result in the
remittal of a matter back to the Tribunal to be decided again.
One such pathway for certain Tribunal decision
s70 is provided for under Part 7 of the ART Act.
Under s 172(1), a party to a proceeding in the Tribunal may appeal to the Federal Court on a
question of law from the decision of the Tribunal in the proceeding
.71 The Federal Court has
jurisdiction to hear and determine the appe
al72 or transfer the appeal to the Federal Circuit
and Family Court of Austr under
alia (Division 2)
. August
73 If an appeal is made under these provisions, the
Federal Court, or Federal Circuit Court, may remit the matter to be decided again by the
Tribunal
.74
Other pathways are available:
• under the Migration Act P 28
the
Child Suppo on art 8, specifically ss 476 and 476A – which specify when a
party can make an application to the Federal Court or the Federal Circuit and Family
Court of Australia (Division 2) in relation to migration or protection decisions
•
Released
rt (Registration and Collection) Act 1988 s 99 – which permits a party
to appeal to the Federal Circuit and Family Court of Australia (Division 2) on a question
of law, from a decision of the ART
69 See for example
SZLQK v MIAC [2008] FMCA 633
and SZFTD v MIAC [2007] FMCA 1930 where the Court held that the then
Principal Member had the power to constitute and reconstitute the Tribunal and that power had been exercised notwithstanding
that the constitution schedule referred to the wrong section of the relevant Act (in this case the provisions of the Migration Act
which were repealed on 1 July 2015).
SZFTD was followed in
SZGIC v MIAC [2008] FMCA 784 at [24]. This issue was not raised
on appeal:
SZGIC v MIAC (2009) 109 ALD 101.
70 This avenue of appeal is not available for most decisions made under the Migration Act (see s 474AA of that Act. Instead,
Part 8 of the Migration Act applies.
71 Equivalent to AAT Act s 44(1).
72 s 176.
73 s 179(1).
74 s 176(2), s 179(4).
12
Last updated/reviewed: 23 June 2025
link to page 14 link to page 14 link to page 14 link to page 14 link to page 14 link to page 14 link to page 14
HALP: Chapter 6 – Constitution and reconstitution
• the
Judiciary Act 1903 s 39B
• the
Administrative Decisions (Judicial Review) Act ss 5 and 8, and
• s 75(v) of the Constitution.
Appeals under ART Act s 172 form a relatively small proportion of court applications from
Tribunal decisions. The bulk of such applications are under Part 8 of the Migration Act.
Source of power to constitute following court remittal on appeal
ART
under s 172
Constitution of the Tribunal following the remittal of a matter back to the Tribunal from a court
on an appeal under s 172 of the ART Act is dealt with in Part 7 Division
ent and
the
4 of the Act. Subsection
18
3(1)75 provides that the Tribunal does not need to be constituted for the review by the person
(or persons) who made the decision that was appealed to the Court. This allows the President
(or delegate) to constitute the Tribunal in the most effici by effective manner, having
regard to its caseload and available members
.76
Subsection 183(2) makes it clear that constituting the Tribunal for the review following a court
remittal pursuant to a Pt 7 appeal is
not a reconstitution
.77 This aims to avoid doubt by clarifying
that the President is constituting the Tribunal FOI
afresh for the remitted 2025
matter, and as such is not
restricted by the detailed rules for reconstitution in Part 4 Division 4 Subdivision D of the Act
.78
Thus, regardless of whether the Tribunal is constituted by the member (or members) who
made the decision that was appealed, the relevant source of power will be the general
constitution power having regard to the general rules in s 39 or one of the exceptions
,79 and
not any of the reconstitution pow
ers.80 However, as is the case for reconstituted matters, the
Tribunal may have regar under
d to any record of
the court
. August
the proceeding in the Tribunal prior to the appeal
(including a record of any evidence taken in the proceeding) and any document or thing
relating to the proceeding given to the Tribunal prior to the appeal, unless doing so would be
inconsistent with the directions of 28
81
Source of power to constitute following other court remittals
Part 7 of the ART Act on
deals only with court remittals when an appeal has been made to the
Federal Court under s 172. It does not deal with avenues of appeal or judicial review available
Released
75 Equivalent to AAT Act s 44(6)(a).
76 EM at [1020].
77 This is consistent with the Court’s opinion in
SZGLL v MIAC [2008] FMCA 631 where the Court considered that, following
remittal of a matter by a court, the Tribunal should be ‘constituted’ under s 421 of the Migration Act as then in force and not
‘reconstituted’ in the s 422 or s 422A sense.
78 EM at [1021]. This has no equivalent in the AAT Act. Contrast s 44(6)(b) which deals with what the Tribunal may have regard
to following a court remittal ‘whether or not the Tribunal is reconstituted’. However there is some authority for the proposition that
when a case is remitted to the Tribunal, it is the constitution power and not the ‘reconstitution’ power that is exercised: SZGLL v
MIAC [2008] FMCA 631 at [72]-[78], considering the constitution and reconstitution provisions of the Migration Act as in force in
November 2005, with reference to
NBMB v MIAC [2008] FCA 149 at [40]. See e.g.
AZAAA v MIAC [2009] FCA 554, considering
the constitution and reconstitution provisions of the Migration Act as then in force, with reference to
NBMB v MIAC [2008] FCA
149 at [40].
79 Sections 40, 41, or 42 discussed above.
80 By contrast, the language of AAT Act s 44(6), indicating that the Tribunal may but need not be ‘reconstituted’, suggests that
the term ‘reconstituted’ is used in the sense of constitution to a different member, and judicial consideration of that provision tends
to use the language of reconstitution.
81 s 184. Broadly equivalent to AAT Act s 44(6)(b).
13
Last updated/reviewed: 23 June 2025
link to page 15 link to page 15 link to page 15 link to page 15
HALP: Chapter 6 – Constitution and reconstitution
under the Migration Act, the
Child Support (Registration and Collection) Act 1988, the
Judiciary
Act 1903 s 39B, the
Administrative Decisions (Judicial Review) Act, or the Constitution. For
remittals following Court applications made under these enactments, the ART Act is silent on
matters of constitution.
However, having regard to the overall statutory context, it appears the same principles would
apply as for Pt 7 appeals. That is, where a matter is remitted by a court other than pursuant
to an appeal under Part 7, it would seem that constitution of the Tribunal for the purposes of
the fresh review will be governed by either the general rules for constitution in s ART
39 or one of
the exceptions in ss 40 - 42, and not by any of the reconstitution powers. This is because,
firstly, the reconstitution powers, whether before or after the hearing starts, assume that the
Tribunal has already been constituted for the purposes of the proceeding, and that a decision
has not been made. Secondly, and significantly, s 48 stipulates
owing
the
that if the Tribunal is
reconstituted for the purposes of a proceeding, the Tribunal as reconstituted must
continue the proceeding. This would generally relate to an on-going Tribunal review and not to a case
that had been finalised and remitted to the Tribunal foll by external judicial review
,82
although it may depend on the terms of the court’s orders in a particular case.
Constitution – same or different member?
Whether it is appropriate in a particular case tFOI
o constitute the Tri 2025
bunal by the same member
(or members) who made the decision that was appealed or by a different member (or
members) will depend on the circumstances. Cases decided under the Migration Act or the
AAT Act prior to the establishment of the ART can provide guidance.
There may be reasons in some cases why constituting the Tribunal to the same member may
be undesirable. In some under
cases, a fair mi
concern ari August
nded observer might reasonably apprehend that a
member who has already made an unfavourable decision will not bring an open mind to the
review. This will clearly be the case where the original decision was set aside due to actual or
apprehended bi
as.83 A similar
dealing wi28 ses where the member previously made adverse
credibility findings in relation to the applicant or their witnesses
.84
For example, while not on th a court remittal, the Court in
SZBLY v MIAC held that, in
circumstances where the Tribunal had affirmed the delegate’s decision on credibility grounds
but later recalled and reconsidered its decision in response to new information, the matter
should have been constituted to a different member for the second decision
.85 It would
Released
82 See
SZGLL v MIAC [2008] FMCA 631 at [73]. This was an application for judicial review of a decision made by the Tribunal
following a previous court remittal. The applicant had argued that where a decision was remitted by a court to be reconsidered
according to law, the Tribunal must be reconstituted under s 422A of the Migration Act and since it was not the Tribunal did not
have jurisdiction. The Court rejected the contention, with reference to
NBMB v MIAC [2008] FCA 149 where Flick J stated at [40]
that ‘[t]he decision of the initial Tribunal having been set aside, the exercise of the power conferred by s 421(2) (which provided
for how the Tribunal was to be constituted) thereafter arose for consideration’. See also
AZAAA v MIAC [2009] FCA 554 where
Mansfield J reached a similar conclusion, holding that following a court remittal the Tribunal could be ‘reconstituted’ to a different
member under s 421.
83 See e.g.
MICMSMA v CQZ15 [2021] FCAFC 24 at [88]-[119] and cases there cited.
84 In
MZZXM v MIBP [2015] FCCA 609, the Court commented at [57] that if the Tribunal had made extensive findings of credibility
adverse to the applicant it would at least be prudent to refer the matter to another Member for rehearing on remittal, but in the
circumstances of the case, where the Member on remittal considered the applicant’s submissions made after the first decision
and more recent country information, no reasonable apprehension of bias arose.
85
SZBLY v MIAC [2007] FCA 765; (2007) 96 ALD 70 at [32], considering the operation of the former Refugee Review Tribunal
under Part 7 of the Migration Act.
14
Last updated/reviewed: 23 June 2025
link to page 16 link to page 16 link to page 16 link to page 16 link to page 16
HALP: Chapter 6 – Constitution and reconstitution
otherwise be open for a fair minded and informed person to reasonably apprehend that the
original member would not bring an impartial mind to bear in making the second decision.
However, constitution to the same member upon remittal from a court where the first review
was conducted without a hearing will not of itself give rise to a reasonable apprehension of
bi
as.86 Rather, what is relevant will be the processes and findings of the Tribunal as previously
constituted.
Power of court to direct how Tribunal is to be constituted
In the Migration Act context, questions have arisen as to the power of a court to di ART
rect how the
Tribunal is to be constituted upon a remittal. The High Court in
MIMA v Wang held that, where
it was ‘necessary to do justice’ to a matter, the Full Federal Court
Federal C the
had the power to remit a
matter to the original Tribunal
.87 However, the majority decided that such an order did not
preserve the findings of the original member that were favourable to the outcome of the
applicatio
n.88 In a different statutory context, the Full
by ourt in
SZEPZ v MIMA
expressed the view that there must be real doubt as to whether the Federal Magistrates Court
could direct how the Tribunal should be constituted, having regard to the express constitution
powers then conferred by the relevant Act
.89 Nonetheless, orders were still made from time to
time that a matter be remitted to a differently FOI
constituted Tribunal. I 2025
n those circumstances the
President of the Tribunal (or their delegate) has had regard to a Court’s view when considering
how the Tribunal is to be constituted for the reconsideration.
The ART Act context is different. If an appeal is made under Part 7 Subdivision A, the Federal
Court may make any order it considers appropriate because of its decision, including but not
limited to remitting a matter to be decided again by the Tribunal with or without taking additional
evidence
.90 In this context, under
if a court remits
ve regard t August
a matter to be decided again by the Tribunal, there
appears to be no restrictions on the court ordering how the Tribunal is to be constituted,
although it appears that this is now rare. If the court does make such an order, the President
(or delegate) wil necessarily ha
remittals 28 o the court’s orders when constituting the Tribunal
for the purposes of the fresh review.
Progressing court
on
where the remitting judgment is the subject of an
appeal
Following a court remittal, an appeal from that judgment may be lodged in a higher court. The
Released
Tribunal generally waits for the appeal period to lapse before progressing the matter. If an
appeal is lodged, the Tribunal generally waits for the outcome of the appeal. This is because
86 In
MZZYD v MIBP [2014] FCCA 1894, the Tribunal decision was quashed on the basis of a denial of procedural fairness after
the applicant did not attend the hearing due to illness. On remittal, the matter was constituted to the same Member. In dismissing
the applicant’s claim of perceived bias, the Court noted there was no criticism at judicial review in the first instance of the process,
findings or behaviour of the Member suggesting bias, and that the applicant had the opportunity at the second hearing to address
the lack of evidence upon which the original decision had turned. Upheld on appeal in
MZZYD v MIBP [2015] FCA 60.
87
MIMA v Wang (2003) 215 CLR 518 in the context of s 481(1) of the Migration Act as then in force.
88
MIMA v Wang (2003) 215 CLR 518 at [18], [45], [68]–[78]. Note that the case considered the use of the remittal power of the
Federal Court under s 481 of the Migration Act, which has since been repealed, and it is unclear whether the Courts retain any
power to direct who is to constitute the Tribunal where relief is granted by writ of mandamus.
89
SZEPZ v MIMA (2006) 159 FCR 291 at [36] in the context of Migration Act s 420 as then in force. See also
MZXRE v MIAC [2009] FCAFC 82; (2009) 176 FCR 552 at [5].
90 Section 176(1)(c) and (2)(b). Equivalent to AAT Act s 44(4) and (5).
15
Last updated/reviewed: 23 June 2025
link to page 17 link to page 17 link to page 17 link to page 17 link to page 17 link to page 17 link to page 17
HALP: Chapter 6 – Constitution and reconstitution
if the appeal is successful, the Tribunal decision may be valid (and operative) such that the
Tribunal would not need to be constituted for a further review
.91 Where a matter remitted by a
court is not itself subject to an appeal but is likely to be affected by the appeal of another
Tribunal matter, the Tribunal may await the outcome of that appeal before progressing the
matter.
Despite the Tribunal’s general practice of awaiting the outcome of an appeal, there may be
circumstances where the Tribunal considers it appropriate (and / or necessary) to progress a
matter that is subject to an appeal in a court. This may include, for exampl ART
e, where the
applicant is in immigration detention or where an applicant seeks to have their matter
progressed, and there is no stay on the orders of the Court
.92
The Federal Court in
FAK19 v MICMSMA (No 2) (
FAK19) consider
cordance w the
ed the application of an
applicant to have the Tribunal progress their remitted matter
.93 The matter concerned a
Tribunal decision in the General Division where the Full Court of the Federal Court had
remitted the matter to the Tribunal to be determined in ac
by ith the law. The Minister
had then applied for special leave to appeal to the High Court from the judgment and that
application had not yet been determined. The Tribunal had issued a direction to the effect that
it would only progress the matter once the outcome of the Minister’s special leave application
in the High Court was known
.94 The appli
FOI
cant was in correctio 2025
nal custody but faced the
prospect of being taken into immigration detention at the end of his sentence as he did not
hold a visa. If, however, the Tribunal made a favourable decision, his visa cancellation would
be set aside and he would be a lawful non-citizen. In finding in favour of the applicant’s
application to have the matter progressed at the Tribunal, the Court held that the Tribunal was
required to comply with the orders of the Court to determine the application in accordance with
the law
.95 The Court noted that it was open to the Minister or Tribunal to seek a stay on the
orders of the Court to su
under
spend the operatio
to be a w August
n of the orders pending the outcome of the special
leave application, but that in the absence of a stay, the orders remained operative and binding
on the Tribunal
.96 The Court acknowledged that the Tribunal’s efforts in progressing the review
on remittal might ultimately prove
of not appl 28 aste of its resources if the first decision was found
to not contain jurisdictional error, and there may be some uncertainty about which decision
was the operative decision until the special leave application was determined, but that this
was the consequence on ying for a stay
.97
In general, however, where an appeal has been lodged from a court remittal to a higher court,
unless the circumstances of the case suggest otherwise (such as the circumstances in
Released
91 This circumstance is not expressly contemplated by s 182; however, if a court remittal is overturned on appeal then arguably
Part 7 Div 4 dealing with matters remitted to the Tribunal would no longer apply.
92 The Tribunal would generally progress a matter to ensure that an applicant’s time in immigration detention is not prolonged
because of the Tribunal’s delay.
93
FAK19 v MICMSMA (No 2) [2021] FCA 1571.
94
FAK19 v MICMSMA (No 2) [2021] FCA 1571 at [7]. The directions were made on the basis that a decision of the High Court
may nullify any decision of the Tribunal and therefore, the matter did not require prioritisation.
95
FAK19 v MICMSMA (No 2) [2021] FCA 1571 at [52]–[55]. The Court held that the finding of non-compliance by the Tribunal
was ‘plainly open’ by reference to the Tribunal’s decision not to conduct a substantive hearing until it was known that the orders
of the Court were preserved by the High Court, and that the review was required to be conducted at the earliest practicable
opportunity but it was not necessary to be more specific than that. Although noting that the original order of the Court was not a
writ of mandamus, the Court ordered that the Tribunal make a return to the Court within 42 days as to the determination of the
review or show cause as to why it has not been done.
96
FAK19 v MICMSMA (No 2) [2021] FCA 1571 at [55].
97
FAK19 v MICMSMA (No 2) [2021] FCA 1571 at [63]–[64].
16
Last updated/reviewed: 23 June 2025
link to page 18 link to page 18 link to page 18 link to page 18 link to page 18
HALP: Chapter 6 – Constitution and reconstitution
FAK19), the preferable and pragmatic approach is to await the outcome of the appeal before
progressing the matter.
6.6
Review proceedings following reconstitution or court
remittal
The Tribunal’s task after it has been freshly constituted wil vary depending on whether it was
reconstituted under Subdivision D (whether before or after hearing starts) or newly constituted
following a court remittal.
Review proceedings following reconstitution under Subdivision D
ART
If the Tribunal is reconstituted under Subdivision D for the purpo
ng relatin the
ses of a proceeding
,98 the
reconstituted Tribunal
must continue the proceedi
ng99 and
may have regard to any record of
the proceeding before the Tribunal as previously constituted
,100 including a record of any
evidence taken in the proceeding, and any document or thi by g to the proceeding given
to the Tribunal as previously constituted
.101 This would extend, for example, to an audio
recording of a hearing held by a member prior to the reconstitution of the Tribunal, or a written
summary of such a hearing made by the previous Tribunal
.102
Whether any procedural steps previously t
FOI
aken need to be taken2025
again for the purpose of
continuing the proceeding will ultimately depend on whether in all the circumstances the
parties have had a reasonable opportunity to present their case and the obligations in s 55
(and those under jurisdictional specific enactments such as the Migration Act) have been
discharged.
Review proceedings under
following court
arly have reg August
remittal
Where a matter has been remitted by a court under Part 7 Division 4 of the Act, the newly
constituted Tribunal may simil
ision D.
99
28 ard to any record of the proceeding in the Tribunal
prior to the appeal (including a record of any evidence taken in the proceeding), and any
98 Under Part 4 Division 4 Subdiv
s 48 (if reconstituted under Par on
t 4 Division 4 Subdivision D), s 184 (if constituted under Part 7 Division 4). These provisions are
broadly equivalent to AAT Act s 19D(4).
100 s 19D(4) of the AAT Act. See also
SZEPZ v MIMIA (2006) 159 FCR 291 at [39] and
MIAC v SZGUR (2011) 241 CLR 594 at
[50], which considered now repealed sections of the Migration Act, such as s 422(2) and 422A(3), which concerned the
reconstitution of the Tribunal and were similar in effect to s 19D(4) of the AAT Act, and where the Court noted it appeared to be
Released
the better view that the Tribunal was entitled to have regard to such material.
101 s 48; equivalent to AAT Act s 19D(4). Several judgments have considered now repealed sections of the Migration Act, such
as ss 355(4) and 355A(3), and ss 422(2) and 422A(3), which concerned the reconstitution of the Tribunal and were similar in
effect to s 48. In relation to reconstitution following the retirement or resignation of the Presiding Member, see
Liu v MIMA; Ahmed
v MIMA (2001) 113 FCR 541;
NADG of 2002 v MIMIA [2002] FCA 893;
SZARJ v MIMIA [2004] FMCA 557;
SZFAS v MIMA (2006)
201 FLR 312 at [16].
102
MZXSP v MIAC [2008] FMCA 374 at [42];
MZABH v MIBP [2015] FCCA 1111 at [24]. In
MZXSP, in circumstances where the
member who had constituted the Tribunal had ceased to be a member, the Court held that ‘record’ includes a draft decision and
accordingly, the reconstituted Tribunal could include verbatim passages from a draft decision prepared by the previous member
so long as it brought an independent mind to the review. In that case, the reconstituted Tribunal sent a further letter under s 424A
of the Migration Act as then in force and conducted a further hearing, but only slightly altered the draft decision of the former
member. In considering whether the reconstituted Tribunal discharged its statutory obligations, the Court found that as it had
carefully considered the draft decision and made some amendments after conducting a hearing and sending a further s 424A
letter to the applicant, it brought an independent mind to the process, and therefore was entitled to adopt verbatim the reasoning
of the previous member. While this case concerned provisions predating the ART Act, the Court’s reasons would appear to be
equally applicable to s 48.
17
Last updated/reviewed: 23 June 2025
link to page 19 link to page 19 link to page 20 link to page 19 link to page 19 link to page 19
HALP: Chapter 6 – Constitution and reconstitution
document or thing relating to the proceeding given to the Tribunal prior to the appeal,
unless
doing so would be inconsistent with the directions of the court.103
This is intended to promote the quick and efficient resolution of the matter
.104 Thus, although
the Tribunal on remittal must consider the matter afresh, it is nevertheless expressly entitled
to have regard to what has previously taken place in the proceeding unless doing so would be
inconsistent with the directions of the court.
For remittals following court applications made under other avenues of appe ART
al or judicial
review, the ART Act is silent on matters of procedure. However, subject to anything specified
in the court’s orders or outlined in the court’s reasons, there seems no reason why the newly
constituted Tribunal could not similarly have regard to any record of the proceeding in the
Tribunal prior to the appeal (including a record of any evidence taken
n to pr
the
in the proceeding), and
any document or thing relating to the proceeding given to the Tribunal prior to the appeal, to
the extent that these records remain available to the Tribunal on remittal. For procedural
issues arising specifically under the Migration Act in relatio by oceedings in the migration
and protection jurisdictional areas, se
e below.
Role of findings of fact of previous Tribunal
The Tribunal as constituted following a remittFOI
al is not bound by 2025
any findings on the review
made by the Tribunal as previously constituted. The Tribunal must determine the review by
dealing with the issues as they present themselves at the time of its determination and
according to the facts as the Tribunal finds them to be at that tim
e.105
Further, reliance upon the reasoning of a previous Tribunal may in some circumstances
indicate that the Tribunal under
has not compl
able to
August
eted its task of conducting a review.
However, if the Tribunal departs from the facts as found in the applicant’s favour by the
previous Tribunal, it may be desir
s proposal 28
explain why in the decision recor
d.106
For migration and protection reviews, if the Tribunal proposes to adopt some parts of the
previous Tribunal’s decision, such as its adverse findings on particular claims or the applicant’s
credibility, the Tribunal’ on to do that and the material that it proposes to use may need
to be put to the applicant under ss 359A if the material that it proposes to rely upon amounts
to a rejection, denial or undermining of the applicant’s claims and would be the reason, or part
of the reason, for the Tribunal affirming the decision under review
.107 Even if the Tribunal puts
Released
103 s 184; broadly equivalent to AAT Act s 44(6)(b). In relation to reconstitution following remittal under the relevant provisions pre
14 October 2024, see
SZHXB v MIMA (2006) 234 ALR 743 applying
SZEPZ v MIMA (2006) 159 FCR 291;
SZIBW v MIAC [2008]
FCA 160 and
SZMFJ v MIAC [2009] FMCA 771, not disturbed on appeal:
SZMFJ v MIAC (2009) 107 ALD 134. See also
SZHKA
v MIAC (2008) 172 FCR 1 J at [22],
SZGEP v MIAC [2008] FCA 1798 at [32], and
SZMQS v MIAC [2008] FMCA 1643 at [19],
not disturbed on appeal:
SZMQS v MIAC [2009] FCA 184, and
MIAC v WZANC [2010] FCA 1391. In relation to court remittals
other than under Part 7 Division 4, see 6.3.28 – 6.3.29 above. The legislation is silent as to how the Tribunal is to proceed in
these cases.
104 EM at [1023].
105
SZFYW v MIAC [2008] FCA 1259 at [9];
SZHKA v MIAC [2008] FCAFC 138 at [18] per Gray J.
106
SZFYW v MIAC [2008] FCA 1259 at [11]-[12]. This was a third review after two earlier court remittals. As is apparent from the
judgment at first instance,
SFYW v MIAC [2008] FMCA 813, the appellant’s complaint was that the Tribunal had rejected many
of the claims that had been accepted by the first two Tribunals.
107 See
MZZZW v MIBP [2015] FCAFC 133 in which the Full Federal Court found that the Tribunal’s proposal to adopt parts of
18
Last updated/reviewed: 23 June 2025
link to page 20 link to page 20 link to page 20 link to page 20
HALP: Chapter 6 – Constitution and reconstitution
findings of the previous Tribunal and its proposed reliance on those findings to an applicant
under s 359A, the Tribunal still assesses the evidence before it afresh in order to conduct a
review (as required by s 348 )
.108
Procedural requirements under the Migration Act following reconstitution or
court remittal
In the migration and protection context there is some divergence of judicial opinion as to what
procedures a
reconstituted Tribunal, or a
newly constituted Tribunal follow
on from t ART
ing a court
remittal
,109 is obliged to follow in order to complete the proceeding. In some circumstances,
courts have held that the Tribunal is simply required to undertake what remains to be done in
the review without interrupting the process, picking up and carrying
ollowing rthe he steps that
have already been taken. In other cases, the Court has required the Tribunal to start the
process again. Whether it is necessary to do so depends upon the particular procedure in
issue and whether or not the matter was newly constituted f by emittal from a court.
Invitations to comment on adverse information
Generally speaking, it is not necessary for t
FOI
he Tribunal to resend 2025
an invitation under s 359A
of the Migration Act to comment on adverse information issued by the previously constituted
Tribunal. This is the case regardless of whether or not the matter was constituted following
remittal by a Court or reconstituted for some other reason.
In
SZEPZ v MIMA, a Full Court of the Federal Court found that, where a Tribunal decision has
been set aside by a court and the matter remitted for reconsideration owing to a jurisdictional
error, it does not follow t under
hat all the step
d not to
August
s and procedures taken in arriving at that invalid
decision are themselves invali
d.110 The Tribunal still has before it the material that was
obtained when the decision that had been set aside was made and is obliged to continue and
complete the particular review an
Court’s find 28
commence a new review
.111 As a consequence, the
the first Tribunal’s decision was ‘information’ for the purpose of s 424A [s 359A] as it would have been a reason or part of the
reason for the decision to affirm the delegate’s decision and it would be more than mere disclosure of a proposed and prospective
reasoning process. Note that the
it accepted the findings and re on
ing appears to be an expansion of the term ‘information’.
MZZZW was distinguished
in
BFE15 v MHA [2019] FCA 414 at [49]–[51] where the Court held that, in circumstances where the Tribunal referred to the first
Tribunal’s decision, its summary of facts and reproduced the first Tribunal’s reasons, the Tribunal did not impermissibly have
regard to the first Tribunal’s reasons as the Tribunal gave its own detailed consideration to the applicant’s evidence on the issue
and formed its own view on the plausibility of the evidence.
108 See e.g.,
BKX23 v MICMA [2023] FCA 585 at [34] where the Federal Court held that the Tribunal did not fall into error where
Released asoning of a previous Tribunal and formed its own conclusion on the issue. This judgment
concerned an AAT decision affirming a decision not to revoke the cancellation of the applicant’s partner visa on character grounds.
In affirming the decision, the Tribunal considered the state of the mental health care the applicant may receive if returned to his
home country and in doing so, it relied on the findings of a different Tribunal member (the MRD Tribunal) in its review of a refusal
to grant the applicant a protection visa. The Court considered that the Tribunal hadn’t blindly adopted the reasoning and findings
of the MRD Tribunal, but rather, it took the MRT decision as evidence or material before it (as it was entitled to do), applied its
own mind to the issue and, in the absence of any evidence presented to the contrary, accepted the MRD Tribunal’s conclusions
on the issue. The Tribunal stated it accepted and adopted the findings of the MRD Tribunal, and the Court noted the use of the
word ‘adopt’ was unfortunate and the language of ‘accept’ more accurately reflected what the Tribunal had done. Upheld on
appeal in
BKX23 v MICMA [2023] FCAFC 184.
109 Note that prior to the introduction of the ART Act, the term ‘reconstitution’ was used interchangeably to describe scenarios.
However, as noted above, the Act now makes it clear that a constitution following a court remittal is not a reconstitution.
110
SZEPZ v MIMA (2006) 159 FCR 291 at [39]. In hearing an application for special leave to appeal this decision, the High Court
found there was insufficient doubt as to the correctness of the reasoning by the Full Court to warrant a grant of special leave:
SZEPZ v MIAC [2008] HCATrans 91 at [305].
111 See also
MZXRE v MIAC (2009) 176 FCR 552 at [5], where North and Rares JJ commented that it would be wrong to suggest
that following a remittal whatever had been done by the original Tribunal had to be redone. See also
SZNKR v MIAC [2010]
FMCA 182 at [9].
19
Last updated/reviewed: 23 June 2025
link to page 21 link to page 21 link to page 21
HALP: Chapter 6 – Constitution and reconstitution
Tribunal in that case was entitled to rely upon a s 424A [s 359A] letter that had been sent by
the previous Member
.112
However, there are limitations. If the obligation under s 359A has not been properly or fully
discharged by the first Tribunal (for example, because a previous letter was sent to the wrong
address, did not give the prescribed period of notice or did not adequately particularise the
adverse information), the Tribunal may be required to send a further invitation. This will also
be the case if there is new information that would be the reason or a part of the reason for
affirming the delegate’s decision, or if the relevance of the adverse information is ART
different from
that described in the previous letter.
Hearing obligation
The general rule in s 55(1)(a) of the Act – the need to ensure each
ers from t the
party to a proceeding is
given a reasonable opportunity to present their case – diff by he hearing requirements
set out in the Migration Act prior to transition, and its scope is as yet unclear. While it’s
important to remain focused on the current statutory obligations, judicial consideration of the
Migration Act provisions as discussed below may provide some guidance.
In some circumstances, constitution of the TribFOI
unal to a different me2025
mber will likely require the
Tribunal to invite the applicant to a further hearing before it. This is the case where the matter
has been remitted by a court. However, it may not necessarily be required where the Tribunal
has been reconstituted for other reasons (e.g. the unavailability of the original Member due to
illness).
The Full Federal Court observed in
Liu v MIMA that where an applicant has given evidence to
a Tribunal Member, reco under
nstitution of the Tri
ever, if the August
bunal generally does not require that the applicant
be given another opportunity to appear before it to present arguments and give evidence under
the hearing obligations in (the now repealed) s 360 or 425 of the Migration Act
.113 This general
proposition would not apply, how
ent; or if the 28 hearing obligation was not properly discharged by
the first Tribunal (e.g. if relevant issues were not discussed at the initial hearing; if the issues
before the reconstituted Tribunal were not the same as those before the first Tribunal; if the
interpreting was defici
on re was evidence of actual or apprehended bias affecting the
first Tribunal). The correctness of
Liu was subsequently confirmed by the Full Federal Court
in
AEK15 v MIBP which held that a new hearing would not always be required in a case
reconstituted because of member unavailability and that it was necessary to consider whether,
Released
in the particular circumstances of each case, the hearing obligation had been fulfilled by the
previously constituted Tribunal
.114 The same reasoning would seem to apply in the ART Act s
55(1)(a) context.
112 See also
SZMRA v MIAC [2008] FMCA 1570 where the Tribunal was held not to have breached s 424A in circumstances
where it had relied on a s 424A letter sent by the previous Tribunal and the evidence of the applicant’s response to that letter.
113
Liu v MIMA; Ahmed v MIMA (2001) 113 FCR 541.
114
AEK15 v MIBP [2016] FCAFC 131. Seven months after a hearing with the first Member, the Tribunal wrote to the applicant
advising him that the Member who conducted the hearing was no longer available, another member would finish the review, all
the available information and record of hearing would be before that new member, and invited the applicant to contact the Tribunal
with any queries. The Court found no error in the reconstituted Tribunal proceeding to make its decision without inviting the
applicant to a further hearing, as the applicant had shown no reason why a second hearing invitation before the reconstituted
Tribunal was required.
20
Last updated/reviewed: 23 June 2025
link to page 22 link to page 22 link to page 22 link to page 22 link to page 22 link to page 22
HALP: Chapter 6 – Constitution and reconstitution
It has also been suggested that it would be inappropriate for the reconstituted Tribunal to make
adverse credibility findings based on the applicant’s demeanour during an earlier hearing at
which the Member was not present
.115 If on the other hand, the reconstituted Tribunal makes
an adverse credibility finding only on purely objective grounds, for example, inconsistencies
between an applicant’s account of certain events and credible country information which was
put to the applicant, and no issues of demeanour arise, then a further hearing would not
generally be required
.116
A distinction can be drawn however between cases reconstituted because ART
of member
unavailability and those constituted following a court remittal. In
SZHKA v MIAC, a Full Court
of the Federal Court was unanimous in holding that, in the circumstances before it, the Tribunal
was obliged to hold a further hearing because new issues had arisen for the member
constituting the Tribunal following the remittal
.117 However, Gyles J, wi
he Court the
th whom Gray J agreed,
additionally found that the opportunity to be provided by virtue of (now repealed) s 425 [hearing
obligation] is not provided by an appearance before another Tribunal Member on an earlier
occasion
.118 His Honour distinguished
Liu on the basis that tby in that case dealt with a
reconstitution in circumstances where the original Member had resigned, whereas in the cases
at hand, the earlier Tribunal decision had been remitted for reconsideration by a court. The
majority’s reasoning also suggests that other procedures would have to be repeated by the
reconstituted Tribunal. However, as the matte FOI
r did not need to be 2025
decided, those comments
are
obiter.119
The majority reasoning in
SZHKA was relied on in
NBKB v MIAC to support a conclusion that
a second Tribunal member was required to raise with the applicant again any live issues, even
if they were put to the applicant and discussed at the hearing before the original Tribunal
member, in order to comply with ss 360/42
5.120 This reasoning appears to extend the decision
in
SZHKA, but as a judgm under
ent of the Federal August
Court in its appellate jurisdiction, it provides some
115 See
SZARJ v MIMIA [2004] FMCA 557 at
CA 40, the re 28
[23]–[24]. See also
MIBP v WZARH [2015]
HCA 40, which although not directly
applicable to MRD reviews given that it related to common law procedural fairness in the IMR context, provides some further
guidance.
116 In
MIBP v WZARH [2015]
H
present arguments and give ev on asoning of Kiefel, Bell and Keane JJ turned on the fact that the second IMR had
rejected a central aspect of the respondent’s claim, not just on the basis of inconsistencies in the respondent’s account of certain
important events, but also the second reviewer’s impression of how that account was given. The latter goes to demeanour which
can only be properly assessed by personal observation.
117
SZHKA v MIAC(2008) 172 FCR 1
, SXGOD v MIAC [2008] FCAFC 138. Other circumstances where a further hearing may be
required is where a previous hearing had been affected by apprehended bias or a failure to give the applicant an opportunity to
Released idence in relation to the issues in the review: see
SZJRH v MIAC [2007] FMCA 2037 at [22].
118 This is in contrast to the reasoning in a number of earlier judgments which involved matters that had previously been remitted
by the Court for reconsideration:
NBKM v MIAC [2007] FCA 1413 at [36];
SZIBW v MIAC [2008] FCA 160 at [35];
SBRF v MIAC (2008) 101 ALD 559 at [24]. In
SZKGF v MIAC [2008] FCAFC 84, a Full Court indicated that it would be inclined to this view
although the matter was unnecessary to decide: at [9]. A more recent Full Federal Court in
AEK15 v MIBP [2016] FCAFC 131
expressed their view, in
obiter, that in a case such as
SZHKA, the Tribunal as reconstituted did not have to start the entire review
process from scratch following the remittal. Its duty was to conduct a review under s 414, and it need not proceed on the basis
that every step or procedure which had been taken by the previously constituted Tribunal was also invalid (at [51]). However, as
obiter comments only,
SZHKA remains the relevant authority that a fresh opportunity to appear before the Tribunal must be given
following remittal to the Tribunal by a Court.
119 cf
MZXRE v MIAC (2009) 176 FCR 552 at [5], where North and Rares JJ commented that it would be wrong to suggest that
following a remittal whatever had been done by the original Tribunal had to be redone. The Court held the comments of Gyles
and Gray JJ in
SZHKA v MIAC (2008) 172 FCR 1 do not go so far as to set down a requirement for a new hearing in every
remitted matter. The Court considered that there is a limited class of cases in which the Tribunal would be required to invite the
applicant to a further hearing. This includes cases where the decision was set aside for apprehended bias or a breach of
procedural fairness, where new issues are raised, and where the matter is reconstituted to a different Member. This reasoning
was not required to be considered by the Full Court on appeal:
120
NBKB v MIAC (2009) 106 ALD 525.
21
Last updated/reviewed: 23 June 2025
link to page 23 link to page 23 link to page 23 link to page 23 link to page 23
HALP: Chapter 6 – Constitution and reconstitution
guidance
.121
Summary
Ultimately, while judicial consideration of the hearing obligations under the Migration Act can
provide guidance, ultimately the question is whether the applicant has been given a
reasonable opportunity to present their case in all the circumstances and the Tribunal’s
statutory obligations have been discharged. Where the applicant’s credibility is an issue, a
fresh hearing is likely to be required, in order to give the applicant the opportunitART
y to present
their case before the new member, and in order for the member to assess for themselves the
applicant’s credibility.
Reasons for remittal
Where a matter has been remitted by a court, it is generally not ne
the
by cessary for the Tribunal in
its decision to expressly address the reason for remittal.
It was suggested in
SZGUW v MIAC that upon remittal the Tribunal should make clear on the
face of its reasons the jurisdictional error which was identified in the earlier decision and how
the Tribunal as presently constituted di
FOI
scharged the relevant
2025
obligation
.122 The Court
considered that a failure to do so would give rise to an inference that the Tribunal did not
properly discharge its obligation
s.123 However, the Federal Magistrates Court in applying this
judgment held that the Tribunal is under no legal obligation to include in its decision an express
explanation as to why the Tribunal did not consider that it had made the same error of
jurisdiction which had been identified in the previous decision. It was moreover observed that
the judgment of the Feder under
al Court in
SZGU
he error is August
W v MIAC regarded the absence of discussion as
no more than confirmatory of a perceived defect in the reasoning proces
s.124 Thus a failure to
expressly discuss the basis of the remittal is unlikely to amount to jurisdictional error in and of
itself. What is important is that t
28 not repeated.
6.7
Recusal requests
On rare occasions, an on
applicant requests that the member who has been constituted their
matter recuse themselves and that their matter be constituted to another member. If an
applicant or applicants make such a request, it is usually on the basis that they consider the
Released
member is biased against them, or there is a reasonable apprehension of bi
as.125
Where a recusal request is made, the member who has been constituted for the review
121 The High Court declined to grant the Minister’s special leave application, finding that the Court’s approach to s 425 did not
appear in the circumstances of the case to disclose any error warranting the grant of special leave:
MIAC v NBKB [2009]
HCATrans 289.
122
SZGUW v MIAC (2009) 108 ALD 108.
123
SZGUW v MIAC (2009) 108 ALD 108, at [21].
124
SZGUW v MIAC [2010] FMCA 145 at [33]–[34]. Undisturbed on appeal:
SZGUW v MIAC [2010] FCA 475. See also
BRGAN
of 2008 v MIAC (2009) 112 ALD 617, at [57].
125 The circumstances which may lead an applicant to reach a conclusion that the particular member constituted to their review
is bias against them vary from matter to matter.
22
Last updated/reviewed: 23 June 2025
link to page 24 link to page 24 link to page 24
HALP: Chapter 6 – Constitution and reconstitution
determines the request in the first instance
.126
When determining the request, the member considers whether there is a risk of actual or
apprehended bias if they proceed with the matter. In relation to apprehended bias, for a claim
to be made out an applicant or applicants would need to demonstrate that the member may
have proceeded with a closed mind, and did not act with impartiality. Robust questioning at
hearing would not, of itself, generally give rise to an apprehension of bias.
The test for apprehended bias was stated by the High Court:
Where, in the absence of any suggestion of actual bias, a question arises ART
as to the
independence or impartiality of a judge (or other judicial officer or juror), as here, the governing
principle is that ... a judge is disqualified if a fair-minded lay observer might reasonably
apprehend that the judge might not bring an impartial mind to the r
the
esolution of the question
the judge is required to decide. That principle gives effect to the requirement that justice
should both be done and be seen to be done, a requirement which reflects the fundamental
importance of the principle that the tribunal be independent and impartial. It is convenient to
refer to it as the apprehension of bias principle.
…The question is one of possibility (real and not remot
by
e), not probability.127
There are no set procedures when determining a recusal request. The member would decide
whether the request can be determined on t
FOI
he material provided 2025
by the applicant or whether
there is a need for the applicant to provide further submissions or make arguments in support
of their request. The recusal request would generally be determined prior to proceeding further
with the review application and the determination communicated to the applicant. If the
applicant makes the request at the hearing, it would generally be determined prior to
proceeding further with the review.
There is no requirement f
under
or a member to
he Preside
August
provide reasons for why they have decided to recuse
themselves, or why they have decided not t
o,128 although they might choose to do so.
Note, too, as discussed above, t
for the 28 nt or delegate may reconstitute the Tribunal for the
purposes of a particular proceeding under s 43 (at any time) or s 46 (after the hearing starts)
if the President, or delegate, is satisfied that the member, or one of the members, who
constitutes the Tribunalon purposes of the proceeding has a conflict of interest or an
actual or apprehended bias in relation to the proceeding.
Released
Last updated/reviewed: 23 June 2025
126 See
QYFM v MICMSMA [2023] HCA 15 where in
obiter dicta the majority stated that the approach that a single judge should
consider and determine any request for their recusal themselves was generally accepted. See also
Re PMMC/WJPJ and
Australian Prudential Regulations Authority [2009] AATA 801 where Member Frost noted that it was the general approach that
when an application is made for a judge or tribunal member to recuse him or herself from a hearing, the decision whether to
disqualify is generally made by that person (at [27]).
127
Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at [6] and [7].
128 Note that
‘statement of reasons’ for a decision, is defined to mean a written statement in relation to the decision that: (a) sets
out the findings on material questions of fact; and (b) refers to the evidence or other material on which the findings are based;
and (c) explains the reasons for the decision: s 4.
23
Last updated/reviewed: 23 June 2025
Document Outline
