Section 348 — ART must review migration decisions
Text of provision
protection decisions
(1) If an application to the ART for review of a reviewable migration decision or a reviewable protection decision is properly made under sections 347 and 347A, the ART must review the decision.
Note: The ART has no jurisdiction to review a decision if the application for review is not properly made.
(2) However, the ART must not review, or continue to review, a reviewable migration decision or a reviewable protection decision in relation to which the Minister has issued a conclusive certificate under section 339.
Plain English
Section 348 provides that if a valid application for review of a migration decision is made, the ART must review the decision. The ART conducts the review on the merits and may: affirm the decision, vary it, set it aside and substitute a new decision, or remit it to the Minister with directions. The ART has all the powers and discretions of the original decision-maker.
Practical effect
The mandatory review obligation under s 348 means the ART cannot decline to review a valid application without exceeding its jurisdiction. The ART's powers to substitute a decision or give directions on remittal are the source of its practical importance in migration law. Where the ART sets aside a decision and substitutes a new one (for example, granting a visa), the new decision has the same effect as if the original decision-maker had made it. This outcome is the "ideal" result for an applicant — it resolves the matter without further proceedings.