Has your visa application been refused or your visa cancelled?
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 will re-assess the application to determine whether you meet the eligibility requirements for the visa, or the requirements for having your visa cancellation revoked. You can bring new evidence to support your case or application which was not given to the Department.
You do not need to have all your evidence ready at the time of lodgment. You can submit the MRT application form and fee within the time period and provide further evidence (eg statements, documents etc) later.
What can the MRT do for you?
The MRT can decide that the Department’s decision is incorrect, set aside the decision and remit the decision back to the DIAC for reconsideration. If the matter is remitted for DIAC for reconsideration, generally speaking, DIAC will grant the visa or revoke the visa cancellation once a matter has been remitted (although DIAC will still need to assess and be satisfied that all the eligibility requirements are met.
The MRT does have the power to set the decision aside and to grant the visa application, although this power is rarely used as matters are usually remitted to DIAC for reconsideration.
The MRT may also decide that DIAC’s decision was correct, and affirm the decision (i.e. the appeal is unsuccessful).
Who can apply for MRT review?
You may be able to apply for MRT review in the following situations:
- You are in Australia, applied for a visa and this application was refused by DIAC
- You are in Australia and your visa was cancelled
- You are in Australia and your visa was cancelled and your application to have the cancellation revoked was refused
- You are sponsored or nominated another person for a visa, and you lodge this visa application outside of Australia. Approval of the sponsorship or nomination must be a requirement for visa approval. Your sponsor or nominator may apply for the MRT for review of the decision to refuse your visa application. Individuals who may be able to apply for MRT review on this basis include applicants who are sponsored by their employer (457, 186 or 187 visas), sponsor or partner (309/100 and 300 visas), family members (carer or remaining relative visas) etc. Exception: For Resident Return visas and Visitor visas, where only a parent, spouse, child, brother or sister of the visa applicant may apply for review
- You are an employer that applied for Standard Business Sponsorship and this application was refused
The MRT cannot review:
- A decision to cancel a visa if the cancellation occurred when the visa holder was outside Australia
If the visa applicant or holder is in Australia then they are the person who should apply for review. If the visa applicant is overseas, then in most cases the Australian sponsor, nominator or family member makes the application for review.
The business sponsor or employer must apply for review in relation to a refusal of a Standard Business Sponsorship or nomination application.
If family members had made a combined visa application, their applications for review can be combined on one application form and only one application fee is payable.
What is the cost?
The MRT application fee is currently $1,540.00.
Half the application fee will be refunded if you are successful with your MRT appeal.
There is no refund if your application is not successful, or if you later withdraw your MRT application.
What is the time limit on applying for MRT review?
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. However, the time limit within which you need to apply for MRT review is generally relatively short.
It is important that you carefully read the refusal or cancellation notice from DIAC – this will tell you whether your refusal or cancellation is MRT reviewable, and the time by which you need to submit your application for review.
The MRT cannot accept an application which is lodged outside of the time limits. This is very strictly enforced and there are no exceptions. Therefore you must ensure that you lodge your application for review within the permitted time period.
How long do I have to wait before my matter is heard?
Waiting time for a MRT hearing of your matter varies depending on the matter that is under appeal. Generally speaking, waiting times are very lengthy. Check the MRT website for expected processing time.
If you have circumstances that may warrant the MRT treating your case with priority you should bring this to the attention of the MRT (preferably when you lodge the application for review), together with appropriate evidence of why you require priority processing. Relevant circumstances could include:
- being in detention
- suffering from a serious medical condition
- experiencing serious financial hardship, or
- separation of a child from a parent or care giver
How does the MRT process work?
The MRT will consider your case as if it is a fresh application, and will look at:
- All evidence, forms and interview records held by DIAC
- Any submissions or evidence which you submit to the MRT for their consideration, and
- Any evidence provided at the hearing
The MRT also has independent power to conduct its own investigations. For example it may contact your employer, friends or family if you have provided evidence from, or about, them.
If the MRT has any adverse information about you (i.e. information which may cause the review application to fail) then it will notify you and ask you to comment on that information. If you receive such a notification it is very important that you do respond to the request for comments within the time limit specified, otherwise your review application is likely to fail.
The procedures for the MRT will vary from case to case, but generally speaking, the following will occur:
- You will lodge your MRT application within the allowed time limiy
- MRT will send you a receipt confirming that they have received your application. This letter also also ask you to lodge any additional documents you want to lodge
- Your case will be allocated to a Tribunal Member who will review the documents relevant to your matter
- The Tribunal Member may be able to make a favourable decision just based on considering the relevant documents along. If a favoured decision can be made on this basis, the MRT will contact you once the decision is made. If a decision cannot be made based on considering only the documents, you will be invited to provide comments or provide further information to the MRT – it is important to respond to this invitation
- In most cases, you will be invited to a hearing – your migration agent can attend the hearing with you. However, your representative but cannot answer questions on your behalf. You can speak with your migration agent, and get advice and clarification from him or her during the hearing. You can request an interpreter if required
- After the hearing is finalised, the MRT will generally send you a written statement advising of the Tribunal Member’s decision
Can I apply for another visa while I am waiting for my MRT hearing?
If you are still holding a substantive visa, then you should be able to lodge another visa application – assuming that you meet the relevant eligibility requirements.
If you do not hold a substantive visa (i.e. your last substantive visa has expired and you now hold a bridging visa that is associated with the MRT appeal), then Section 48 will bar you from making a further ‘substantive visa’ application because you have had a visa refusal.
Despite s48, you can still lodge a valid application for the following types of visas: partner visas, bridging visas, Subclass 444 for New Zealand citizens and child visas.
Note: Section 48 does not apply if the refusal was in relation to a bridging visa application or if the basis of the refusal was due to character issue (i.e. a refusal under Sections 501, 501A or 501B of the Migration Act).
In part 2, we cover a number of important topics such as the consequences of the MRT decisions, your rights while you wait for the MRT to make a decision.
Should I lodge an application for review and how can we help?
Because there is a strict time limit for applying for MRT review, I strongly recommend that you contact me as soon as you receive your refusal or visa cancellation notification.
In order to successfully win your MRT appeal, you need to demonstrate to the Tribunal Member that you satisfy the legal requirement which your case officer decided was not satisfied. The Tribunal Member will generally not assess each eligibility requirement to ensure satisfaction – he or she will focus on the eligibility requirement which was not satisfied. Given this, I can help you determine whether the particular eligibility requirement is in fact satisfied – this in turn should allow you to determine whether you should proceed with the application for review.
My professional fee for this initial consultation and assessment is $400.00 – please note the purpose of this service is to discuss the eligibility requirement which was not satisfied, and to help you decide whether you should proceed with an appeal. Separate fees apply if you need comprehensive assistance with the MRT application. However, I will deduct my initial consultation fee from a fee that I charge for providing you with comprehensive assistance for the MRT application.
Here are some examples of successful MRT applications that we have assisted with.
See the feedback that we have received from our clients.