Has your visa application been refused or your visa cancelled? Or are you an employer that lodged a business sponsorship or nomination application which was refused? You may be able to appeal this decision to the Migration Review Tribunal (‘MRT’).
What can the MRT do for you?
The MRT can make a decision in your favour and decide that the Department’s decision is incorrect and send the matter back to the Department for reconsideration.
If the matter is sent back to the Department for reconsideration, generally speaking, the Department will grant the visa or revoke the visa cancellation.
The MRT can also decide that the Department’s decision was correct and confirm this in its decision. If this occurs, then your appeal is not successful (the consequences of this are explained below).
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 the Department
- You are in Australia and your visa was cancelled by the Department
- You are in Australia and your visa was cancelled and your application to have the cancellation revoked was refused by the Department
- You are sponsored or nominated by an employer or another person for a visa, and you lodged 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 to 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. Note: For Resident Return visas and Visitor visas, 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 of 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.
What is the MRT application fee?
The MRT application fee is currently $1,604.00.
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 is a strict time limit by which you need to submit your MRT appeal application. 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 short.
It is important that you carefully read the refusal or cancellation notice from the Department – 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 for review that is submitted outside of the allowed time frame. This is very strictly enforced and there are no exceptions.
How long do I have to wait before my matter is heard?
Generally speaking, waiting times are very lengthy and is around 12 to 18 months. Check the MRT website for average 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 the Department
- 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 may fail.
Generally speaking, the following events will occur when you appeal to the MRT:
- You will lodge your MRT application within the allowed time limit
- The MRT will send you a letter confirming that they have received your application. This letter also ask you to lodge any documents or information that you think is relevant to your appeal
- 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 documents and evidence that they have before them. If a favourable decision can be made on this basis, then the MRT will contact you once the decision is made. If a decision cannot be made based on considering only the documents and information held by the MRT, then you will be invited to provide comments or provide further information to the MRT – it is important that you do respond to this invitation
- In most cases, you will be invited to attend a hearing that is conducted by the Tribunal Member. Your migration agent can attend the hearing with you. However, generally speaking, your migration agent cannot act as your representative and speak 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
What if the MRT appeal is successful?
If your MRT application is successful, then your application will actually be remitted back to the Department for a final determination and decision.
The Department’s processing time for such applications is generally relatively short – say 2-4 weeks. However, processing times do vary significantly, and it may be months before you receive a decision from the Department.
Approval of your MRT appeal does not guarantee that your application will be approved. The Department will still check to ensure that all the relevant eligibility requirements are satisfied. I have seen cases where the applicant has been successful with their MRT appeal, but then the visa application is later refused for a different reason, such as not satisfying the relevant health and character requirements.
What if my review is not successful?
If your application for review at the MRT is not successful then you will be notified that you have 28 days in which make arrangements to leave Australia. If you do not want to leave Australia then you have two potential further avenues for review:
- you can make a written request to the Minister to exercise her/his personal discretion to grant you a visa, or substitute a more favourable decision. This is an application for Ministerial Intervention
- In limited circumstances you may be able to appeal to the Federal Court or the Federal Magistrates Court – there are strict time limits for any such appeal
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. A ‘substantive’ visa is basically any visa which is not a bridging visa.
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.
If you were granted a Bridging Visa A as a result of the visa application which the Department refused, then if you apply for MRT, this bridging visa will continue to be valid and will allow you to remain in Australia until the MRT has made a decision (assuming that you have applied for the MRT within the allowed time period). If you do not appeal to the MRT then your Bridging Visa will expire and you will need to depart Australia or become unlawful.
Can I work while I wait for my MRT hearing?
That depends on the visa that you are currently holding. If you are holding a substantive visa, which are basically all visas except for bridging visas, then you need to comply with the conditions of your substantive visa. For example, if you are holding a student visa, then there may be restrictions on the number of hours that you can work. If you are a primary 457 visa holder, then you can only work for your sponsoring employer.
If you are holding a bridging visa, then you need to check the conditions of your bridging visa. If you are holding a bridging visa and there are restrictions on your work rights, you may be able to apply for unrestricted work right.
This generally means that you need to demonstrate a ‘compelling need to work’. You need to provide evidence to show that you will suffer ‘financial hardship’ (or your household will suffer such hardship) unless you are allowed to work and earn an income.
The Department’s policy guidelines indicates that ‘financial hardship’ is established if you can show that your living expenses are greater than your ability to pay for these costs.
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