Section 367G — ART must give adverse information to applicant
Text of provision
(1) The ART must:
(a) give to the applicant clear particulars of any information that the ART considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on the information. Exception—certain kinds of information
(2) Subsection (1) does not apply in relation to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(c) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or Migration Act 1958 155 Part 5 Reviewable migration decisions and reviewable protection decisions Division 4A Conduct of ART review—applications to be reviewed on the papers
(d) that is non-disclosable information; or
(e) that was included, or referred to, in the written statement of the decision that is under review; or
(f) that is prescribed by regulation for the purposes of this paragraph.
(3) The ART is not required to give particulars of information mentioned in subsection (2) to the applicant before making a decision on the application under:
(a) section 105 (decision to affirm, vary, or set aside and substitute or remit) of the ART Act; or
(b) section 349 (decision to set aside and remit relating to a prescribed matter) of this Act. Does not include certain affirmations of dismissal
(4) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 368C(6).
Plain English
If the ART identifies information that would be the reason (or part of the reason) for affirming the refusal decision, it must:
- Give the applicant clear particulars of that information
- Explain why the information is relevant to the review
- Explain the consequences of relying on it
- Invite the applicant to comment on it or provide additional information
The applicant has 14 days to respond (Migration Regulations reg 4.20(b)).
Practical effect
Section 367G is the paper review equivalent of the adverse information obligation in s 359A (general ART reviews). It is the applicant's last opportunity to address information that may be relied on against them before the ART decides. Practitioners should monitor the review closely — the 14-day window starts from the date notice is given, not the date it is received.