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THE MIGRATION REVIEW TRIBUNAL AND VISA REFUSALS

If you have been refused an Australian visa, one of the options for a review of this decision may be to apply to the Migration Review Tribunal (‘MRT’).

The MRT was established in 1999 and it provides for a ‘merits review’ of decisions made by the Department of Immigration and Citizenship (‘DIAC’). Where a visa has been refused the MRT has the power to re-assess the original decision and examine whether the applicant meets the requirements for obtaining the visa.

There are a number of reasons to recommend a review of a visa refusal by the MRT. The MRT is an independent body which is designed to be fair, economical and quick. It employs an inquisitorial method of deciding applications where the tribunal member is able to take an active role in determining whether a decision to refuse a visa was correctly made. The MRT is not bound by formal rules of evidence or legal technicalities and importantly, it acts according to substantial justice and the merits of the case.

Powers of the MRT

If the MRT decides that a decision to refuse a visa was incorrect, it has the power to set the decision aside and to grant the visa application. This is relatively rare, however, and in most cases where a decision to refuse a visa was found to be incorrect the MRT will simply set aside the decision and remit the decision back to the DIAC for reconsideration.

In making a decision with respect to the visa application the Department must take into account the directions of the MRT.

Types of decisions which are reviewable by the MRT

Decision reviewable by the MRT include:

  • If a visa application (other than an application for a protection visa) has been refused;
  • The cancellation of a visa where the visa holder was in Australia;
  • Refusal to revoke the cancellation of a visa if the person is in Australia;
  • A determination on the points test for skilled migration visas, business sponsorships and nominations; and
  • A determination on security bonds for bridging visas.

Time Limits

It is important to note that there are strict time limits for making applications to the MRT. The time limit will depend on the decision which is being challenged but for all decisions these time limits are relatively short. The cost of lodging an MRT application is also relatively costly, so we would recommend anyone seeking to challenge a decision to seek professional advice immediately. Furthermore, an application to the MRT can only be lodged beyond the time limit in very limited circumstances and failure to apply within the time limit may mean that the MRT will lose jurisdiction to review your case. Examples of common time limits for application to the MRT are:

  • 2 days: for review of a decision to refuse a bridging visa or cancel a bridging visa or to review a decision about a security bond; and
  • 7 days: for review of a decision to refuse a visa or cancel a visa or for a decision not to revoke a student visa.

The Process

After an application is lodged, the first stage of the process is that a member of the MRT will examine the documents to assess whether the Department has made an apparent mistake in refusing to grant the visa. You may be invited to provide written submissions to support your case. If there is no apparent mistake or reason for why the refusal should be overturned the member will seek further information from you or initiate any research that is deemed relevant. If there is nothing to suggest the refusal was incorrectly made the member will then move to have a hearing where the applicant will appear to give evidence and is able to tender any further written information or call witnesses. Following the hearing the member will make a decision on the application.

Legal Representation

Only registered migration agents can represent you at the MRT. Although it is not essential to be represented,  there are a number of reasons why professional assistance can increase your prospects of success. Your agent will not only assist with the presentation of an applicant’s case at a hearing into whether a refusal should be revoked, but will be able to assist with the initial application, including advising on what grounds should be argued for overturning a visa refusal and what documents should be tendered by an applicant to persuade an MRT member of the need to reverse a visa refusal decision.

At Berrigan Doube Lawyers, all our registered migration agents are also practicing migration lawyers and specialize in migration regulations and policy. If you have any queries in relation to the above, or wish for us to conduct a free initial consultation, please do not hesitate to contact us directly.

This article contains information about the Migration Review Tribunal. The information in this article is intended as introductory information only and is no substitute for legal advice. If you have a migration matter or are after legal advice on how to contest a visa refusal please contact Berrigan Doube Lawyers.