No hearing? No problem: expanded pathways to paper-based decision making in the ART
Key takeaways
- On 5 February 2026, the federal Parliament passed the Administrative Review Tribunal and Other Legislation Amendment Bill 2025. The Bill makes amendments to the Migration Act 1958 (Cth) and the Administrative Review Tribunal Act 2024 (Cth) (ART Act).
- The amendments expand the circumstances in which the Administrative Review Tribunal (ART) can decide matters without an oral hearing and create a bespoke ‘on the papers’ review procedure in the Migration Act for certain types of reviewable migration decisions.
- The amendments are supported by detailed Explanatory Memoranda, which explain how the new powers are intended to balance the need for timely, proportionate reviews with important procedural fairness safeguards.
- The changes to migration reviews align with integrity objectives arising from the 2023 Rapid Review into the Exploitation of Australia’s Visa System (Nixon Review).
Amendments at a glance
ART Act
The Bill amends the ART Act to insert an additional circumstance in which the ART can exercise its discretion to make a decision without a hearing.
The Explanatory Memorandum explains that the new discretion would usually apply in circumstances where a proceeding involves straightforward facts and issues, or objective criteria, suited to being considered based on written materials. It also notes that the new discretion is subject to the requirements of section 55 of the ART Act. This means that the Tribunal can only decide a matter without an oral hearing if it is satisfied that all parties to the proceeding have been given a reasonable opportunity to present their case, make submissions, and adduce evidence.
| Section | Summary |
| 106(6) | Permits the Tribunal to make a decision without a hearing if it appears to the Tribunal that the issues for determination can be adequately determined in the absence of the parties and it appears reasonable in the circumstances to make a decision without holding a hearing. |
| 106(7) | Provides that section 106(6) does not apply unless the Tribunal has given the participating parties to the proceeding a reasonable opportunity to make submissions in relation to the Tribunal making a decision without holding a hearing and the Tribunal has taken into account any submissions received. |
Migration Act
The amendments to the Migration Act require the Tribunal to decide certain review applications without conducting an oral hearing, based solely on the papers. Applications that must be reviewed on the papers will be subject to a new, bespoke review procedure set out in new Division 4A of Part 5 of the Migration Act.
These changes apply to applications lodged with the Tribunal before the commencement of the amendments if the Tribunal has not yet been constituted, and to all review applications made after the amendments take effect.
| Section | Summary |
| 5(1), 367C(2) | Provides that an application for review of a reviewable migration decision is an ‘application to be reviewed on the papers’ if the decision relates to a temporary visa and the application is a kind prescribed for the purposes of this subsection. |
| 367C(3) | Sets out the circumstances in which an application is not, or ceases to be, an application be reviewed on the papers (including where a referral is made to the GAP). |
| 367D | Disapplies certain provisions of the ART Act in relation to ‘applications to be reviewed on the papers’. In particular, section 55 and section 106 do not apply to applications required to be reviewed on the papers (subparagraphs (b) and (g)). |
| 367E | Contains an exhaustive statement of the natural justice hearing rule in relation to applications to be reviewed on the papers. |
| 367F(1) | Requires the Tribunal to invite the Applicant to give written submissions and evidence in relation to certain issues. |
| 367F(3) | Expressly provides that, subject to section 367G, the Tribunal is not required to do anything further to put the Applicant on notice of the relevant issues or seek further information from them. |
| 367G | Essentially replicates existing section 359A in Division 4 of the Migration Act. |
| 367H | Sets out the requirements for invitations under section 367F(1) and 367G(1). |
| 367M | Requires the Tribunal to dismiss a review application if the Applicant does not respond to an invitation under section 367F(1) within the response period. |
| 367N | Sets out the making of the Tribunal’s decision in relation to an application to be reviewed on the papers. |
| 368(2)(d) | Permits a reinstatement application to be made in relation to a dismissal decision under section 367M. |
Why the change? Proportionality, integrity and efficiency
- The Explanatory Memorandum links the expanded paper‑based pathways of decision-making to the ART’s statutory objective of resolving matters with as little formality and expense as proper consideration allows, while still ensuring that participating parties to a review are afforded procedural fairness.
- These initiatives also reflect the themes of the Nixon Review, which recommended measures to reduce incentives for non‑genuine applications and improve compliance. The Government’s response accepted most recommendations (in whole or in principle) and emphasised addressing processing backlogs and merits review timelines as part of restoring the integrity of the Federal administrative review system.
Looking ahead
These amendments signal an ongoing focus on improving the efficiency of reviews by introducing additional routes to paper‑based decision‑making.
For reviews of reviewable migration decisions, practitioners should closely monitor initial legislative instruments and early amendments defining which cohort(s) of temporary visas will move into the Division 4A review stream.
For all other reviews, including reviews of reviewable protection decisions, applicants and practitioners can expect the discretion in section 106(6) of the ART Act to be exercised in more straightforward reviews involving objective criteria. That discretion will remain subject to the requirements of legal reasonableness and may be open to challenge, depending on the circumstances in which the power is exercised and the reasons given for doing so.
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