Section 349 — ART powers on review
Text of provision
(1) Subparagraph 105(c)(ii) of the ART Act does not apply in relation to a reviewable migration decision or a reviewable protection decision.
(2) If a reviewable migration decision or reviewable protection decision relates to a prescribed matter, the ART may, under this subsection:
(a) set aside the decision; and
(b) remit the matter for reconsideration in accordance with such orders or recommendations of the ART as are permitted by the regulations.
(3) Paragraph (2)(a) of this section applies despite subsection 31(1) (decision cannot be altered outside Tribunal process) of the ART Act.
Plain English
Section 349 provides that in reviewing a migration decision, the ART may: affirm the decision; vary the decision; set aside the decision and substitute a new decision; or remit the decision to the original decision-maker with directions or recommendations. The ART may exercise any power that the original decision-maker could have exercised, including granting a visa or approving a sponsorship.
Practical effect
The breadth of s 349 powers means that the ART can conduct a complete fresh assessment of the application — it is not limited to correcting legal errors in the original decision. For visa applicants, this means the ART can grant a visa that was refused even if the original refusal was based on a valid ground, as long as the applicant satisfies the criteria at the time of the ART's decision. This temporal dimension — the applicant must satisfy the criteria at the ART hearing date, not just the original decision date — is practically significant, as circumstances often change between the refusal and the hearing.