Applicants for migration review are entitled to access written material given or produced to us for the purposes of the review under s.362A of the Migration Act 1958 (the Act), where the case is active. The entitlement is subject to certain limitations under the Act and the Privacy Act 1988 (the Privacy Act).
The entitlement is not available once a review has been finalised and is not available to applicants for refugee review.
Written material given or produced for migration review generally consists of the review file and the Department of Immigration and Border Protection or the Department of Home Affairs file (department file) held by us.
Should I make a request for access to documents under s.362A or FOI Act?
The entitlement to access written material given or produced to us under s.362A of the Act is separate to the right to access information under the Freedom of Information Act 1982 (FOI Act).
If you are a migration review applicant, a representative or a person who has been authorised by the review applicant to be present and assist the applicant at the hearing, you may make a request under s.362A of the Act to access written material in relation to that application while the review application is active.
If you are a migration review applicant, or a person acting on behalf of the review applicant, and you require access to information other than written material given or produced to the tribunal for the purposes of the review, or you have received a decision in relation to the review application, you should make a request to access information under FOI Act.
For all other persons and situations, including refugee review applicants, you may make a request to access information under FOI.
How do I request access to written material held by you under s.362A?
Fees and charges
There are no fees or charges that apply when requesting access to written material under s.362A of the Act.
Processing s.362A requests
The processing of s.362A requests is less formal and can be quicker than processing requests under FOI Act. We will usually make a decision within 14 days (constituted cases) or 30 days (unconstituted cases) of receipt of the request. If we are unable to make a decision in this period, you will be contacted and provided with an estimated time frame in which a decision will be made.
A copy of the written material will be sent to an address nominated by you. If you have a representative or an authorised recipient for the purposes of the application for review, we will forward the written material to the nominated person.
Accessing written material about a third party
The information held by us may include personal information about a person or persons other than the review applicant. We can only disclose this information to the review applicant within the framework created by the Act and subject to the Privacy Act.
Accessing written material about a third party can cause delays in the processing of your s.362A request. You can facilitate the request by providing the tribunal with that person’s written consent. This can be done by completing Form M14 - Consent to release personal information under s.362A of the Migration Act.
Appeal or review rights
There is no right to appeal a decision made under s.362A of the Act. You may apply for access to documents under the FOI Act or make a further s.362A request should you be dissatisfied with the outcome of your request.
Main differences in accessing information between s.362A and FOI
The entitlement to access written material under s.362A of the Act is separate to the right to access information under the FOI Act. The following table lists the main differences.
||s.362A of the Migration Act
||Freedom of Information Act
|Fees and charges
||We cannot impose any fees or charges to access written material.
||Charges may be imposed to access a document.
|Information that can be accessed
||Only written material given or produced to us in relation to the review can be accessed, subject to certain limitations.
||Any document held by us can be accessed, subject to certain exemptions.
|When material can be accessed
||The entitlement to access written material under s.362A is only available in relation to migration review applications while the review is active. The entitlement is not available after the review is finalised.
||Every person has the right to request access to documents held by the tribunal at any time.
|Requesting access to information
||Access to written material may be made in writing, or by completing Form M16 - Request for access to written material held by the tribunal under section 362A of the Migration Act
||Access to documents must be made in writing, or by completing Request for documents under the FOI Act form.
||There are no prescribed time periods. Our usual practice is to make a decision within 14 days (constituted cases) or 30 days (unconstituted cases) of receiving the request.
||We must acknowledge receipt of the request within 14 days and give a decision within 30 days, unless an extension of time is granted under the FOI Act.
|Appeal or review rights
||There are no formal appeal or review rights available under s.362A. However, an applicant is entitled to make a further request during the course of the review, or request information through FOI Act.
||An application for internal review of an FOI Act decision can be made to us. Our decision can be reviewed by the Office of the Australian Information Commissioner.
If you have any questions in relation to accessing written material under s.362A of the Act, please contact the NSW or Vic Registry.
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