Australian Visa Refusal & Cancellation – Migration Review Tribunal

 

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:

  1. You will lodge your MRT application within the allowed time limit
  2. 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
  3. Your case will be allocated to a Tribunal Member who will review the documents relevant to your matter
  4. 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
  5. 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
  6. 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.

 

Bridging visa

 

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.

 

How we can help

 

Please Contact Us if you require our assistance.

Our Client Testimonials reflect:

  • the excellence of our work
  • our willingness take on the difficult cases and achieve the outcomes that our clients want
  • our willingness to cater our services to the precise needs of our clients, including working outside of normal business hours and providing limited assistance where needed such as  helping to resolve a specific issue or issues with a particular application
  • our ability to assist business and private clients from all over Australia and the world! We are based in Sydney NSW, however, we have assisted business and private clients from all over Australia and the world. We have never had issues with assisting clients that we don’t get to meet in person

307 thoughts on “Australian Visa Refusal & Cancellation – Migration Review Tribunal

  1. Vee

    Hye Peng. Hope you can answer.
    Im on bridging visa A that got refused 2 week ago. Now I want withdraw my visa. Was that will effect main applicant in my BVA form of part of family withdraw the visa? Can I re enter Australia legally when I drop my visa as I have no choice right now.

    If my ETA not approved to reenter Australia is there any visa or way to enter Australia legally. Hope to hear from you and get your help.

    Regards,

    Reply
    1. Peng Cheng Post author

      Hi Vee,
      Sorry but I can’t provide advice just based on your comment information.
      Please see Contact Us page and in relation to our Consultation Service – feel free to contact us if you need advice in relation to your visa options.
      PC

      Reply
  2. Naomi

    Hi Peng,

    I’ve applied the AAT more than 2 years ago and I’ve already finished my courses while I’m waiting for the hearing.
    Since being enrolled in a course is one of requirements for a student visa to be granted, I think that the AAT likely affirm the immigration. In that case, do I still have chance to apply for the court? Or any options other than business visa or sponsor visa?
    Many thanks.

    Reply
    1. Peng Cheng Post author

      Hi Naomi,
      Sorry but I can’t provide advice just based on your comment information.
      Please see Contact Us page and in relation to our Consultation Service – feel free to contact us if you need advice in relation to your visa options.
      PC

      Reply
  3. Rana

    Dear peng cheng,
    I have read all your post and replies. All very helpful.
    Actually i lodgeg my AAT appeal because my 187 visa was refused. I had my hearing on 3/10/2017. After hearing after asked for 1 document. Which i submit on 6/10/17. But i haven’t got my decision from AAT yet. Can you please advise how long maximum they can take to give decision?
    Can i contact them??

    Reply
    1. Peng Cheng Post author

      Hi Rana,
      Sorry but there isn’t a maximum waiting time for the AAT’s decision.
      You can follow-up if you wish.
      PC

      Reply
  4. I

    hi, I am on bridging visa E , i want to go overseas to see my father who is too ill as i haven’t seen him from last 3 years. can i apply for bridging visa B

    Reply
  5. Mark sweden

    HI Mr CHENG,

    I have a business visa but didnt attend Australia when I was suppose to . which was 15/9/17. Can I still attend immigration to finish my business Visa?

    Reply
  6. l. singh

    Hi Peng,

    I applied for my student visa extension on 28th july 2016 and I got rejection on 15th december 2016. then I applied for MRT in january 2017. I finish my study ( bachelors degree ) this month. so should I need to continue my studies till I get my decision or they can tell me that you finish your studies so you can leave australia.

    May I know whether I should continue with my studies or not?

    Thanks.

    Reply
    1. Peng Cheng Post author

      Hi Singh,
      Sorry but I can’t provide advice just based on your comment information.
      Please see Contact Us page and in relation to our Consultation Service – feel free to contact us if you need advice in relation to your visa options.
      PC

      Reply
  7. Eunhye

    Hi, peng 🙂
    I applied the student visa for nursing course and then got rejected from Immigrant department about 2weeks ago.
    I was waiting for my course has started on January 2018, and have no idea right now.
    Do I have to study during my application processing ?
    It is more recommendable way rather than just staying here and waiting the answer/hearing?

    please help me
    Thanks
    Eunhye

    Reply
    1. Peng Cheng Post author

      Hi Eunhye,
      Sorry but I can’t provide advice just based on your comment information.
      Please see Contact Us page and in relation to our Consultation Service – feel free to contact us if you need advice in relation to your visa options.
      PC

      Reply
  8. Hao

    Hi Peng,

    I just won and got the remit decision from the AAT.

    Normally how long it will take from the date of decision from the AAT to the immigration?

    Thanks.

    Reply
      1. Hao

        what will happen to my documentation?
        Will they request new Police clearance and IELTS? Because both document had expired now.

        Reply
  9. BO

    Hi Peng,
    My visa got refused based on my partner medical.I am a student dependant not primary visa owner.Now I want to get my own student visa.
    1.I contacted you earlier stated I have to go offshore
    2.Please I need help with the processing of my visa and submission as I want a professional like you to help with it.

    Thanks
    BO

    Reply
    1. Peng Cheng Post author

      Hi Bo,
      Please see Contact Us page and in relation to our Consultation Service – feel free to contact us if you need advice in relation to your visa options.
      PC

      Reply
  10. Arbab Raja

    Hi Peng, I did MPA and waiting for an invitation with 70points lodged my EOI 27/01/2017. I applied for a student visa( Advance Diploma of IT) after 485 visa (post graduate work visa). I got refusal today. Now I will apply for MRT.
    Reason for refusal:
    1. Applicant not genuinely intend to stay temporarily in Australia.
    2. Did MPA, worked for 18months and now has applied for a short/inexpensive course in the vocational education sector which indicates that they are using the student visa program to maintain residency in Australia.

    Questions:
    Do I need a lawyer for this to defend my case on behalf of me ?
    What you suggest is the best way to get the positive outcome from MRT ?

    Looking forward to your answer.

    Thank you.
    Regards, Arbab

    Reply
    1. Peng Cheng Post author

      Hi Arbab,
      It isn’t mandatory to have a representative for your hearing.
      Please see Contact Us page and in relation to our Consultation Service – feel free to contact us if you need advice in relation to your visa options.
      PC

      Reply
  11. Gail Dar

    Hi Peng,

    My student visa got refused and we are planning to appeal. Based on the average processing times, it says that it might take 12-18 months before MRT comes up with a decision. I am fully aware that I won’t have work rights while waiting for the result of appeal. As you know it is too expensive to live in australia considering that I also live with my husband who wont have work rights either. (he is my dependent when I lodged my student visa application).

    My question is, is there a way that we can apply to have work rights while waiting for the decision from MRT? Or can we apply for MRT while in australia and go back home for at least 6-8 months to wait until they schedule us for a hearing? Thanks.

    Reply
    1. Peng Cheng Post author

      Hi Gail,
      Sorry but I can’t provide advice just based on your comment information.
      Please see Contact Us page and in relation to our Consultation Service – feel free to contact us if you need advice in relation to your visa options.
      PC

      Reply
  12. Preet Singh

    Hello Mr Cheng
    Does every student visa refusal have section 48 applied. I got my student visa refused but there is no mentioning of section 48 anywhere in the letter.After AAT I want to lodge 187. Do I still need to go offshore?
    Thanks

    Reply
  13. S.khan

    Hi Peng!
    It’s good to see that you are helping a lot. I need to ask someone regarding my case. My student visa extension got refused last year and I applied for MRT then. I am on bridging visa A. It’s been 7 months i have applied for MRT and still waiting for hearing. As you know I have study rights on this visa but I did not study this while time while on MRT because I was afraid that what if they still decline my request. And I wanted to save my money in case if I have to go back. My question is that is it compulsory to continue your studies while waiting for AAT hearing and will it affect me in hearing that I did not stidy after applying for MRT.
    Thank you

    Reply
    1. Peng Cheng Post author

      Hi Khan,
      Sorry but I can’t provide advice just based on your comment information.
      Please see Contact Us page and in relation to our Consultation Service – feel free to contact us if you need advice in relation to your visa options.
      PC

      Reply
    2. kho maya gurung

      Hi khan, i have also same situation of my visa. did u find out about your visa have to study continue while waiting for MRT or you need to study while waiting for AAT decison. pls help me for answering me or leave me msg on my number 0410982841. thank you

      Reply
  14. Jan Ban

    Hi Peng,

    Many thanks for the information you’re giving!

    I am applying for AAT review of 457 cancellation decision (breach 60days rule).
    Can I ask, if it remains cancelled can I apply offshore for another 457?

    Does having a cancelled 457 affect what visas (with work rights) you can apply for at a later date?

    Thank you!

    Reply
    1. Peng Cheng Post author

      ​Hi Jan,
      You should be able to lodge a new 457 visa.
      Sorry but I can’t provide advice just based on your comment information.
      Please see Contact Us page and in relation to our Consultation Service – feel free to contact us if you need advice in relation to your visa options.
      PC

      Reply
  15. Amelia

    Hi Peng,

    How are you? Thank you for your kind endeavour to help us here.

    I have a question in relation to my 485 visa refusal. I should have applied for Graduate stream instead of Post-study stream under 485 visa. I have met all requirements but messed up the applied streams. I have lodged an appeal with AAT. And I am currently on bridging visa A.

    May I ask, can I apply for 189 visa offshore during the review period of AAT? Am I barred to apply for any Australia visa offshore because of section 48?

    Thank you for your time and all your help. Looking forward to your reply.

    Reply
      1. Amelia

        Dear Mr. Cheng,

        Good Morning!

        Thank you for your quick reply. I am much appreciated to your answer.

        May I bother you further? What is the chance of success for my 189 application if I lodge it offshore and meet all requirements under this situation? How much will my 485 visa refusal affect my offshore 189 visa application?

        Thank you so much for your time and all your help. Looking forward to your reply.

        Have a wonderful day!

        Reply
  16. Harpreet Sandhu

    Hi this Harpreet
    My is studying here and we got refused in extension her study visa so now we are on AAT . Can we travel to India and come to Australia during this time… thanks in advance

    Reply
  17. Sujan

    Hi

    I got a 573 visa for 3 and half years for my degree but I finished my course in 18 months after applying RPL. I applied 485 post study work visa but got rejected. I intend to apply for AAT appeal.
    Do I have to continue to enrol in any other new course and study to stay in the same visa? I know my bridging visa will be continued but it will be inactive as I still hold a student visa.

    I have finished the course that I got visa for so I am not sure.

    Your advise would be a great help

    Sujan

    Reply
      1. Sujan

        Hi peng,

        I finished the course. However I didn’t study all the units of the course. I got exemption for my overseas studies

        Reply
  18. Raj

    Hi Peng
    I have applied MRT and right now I got the bridging visa.
    I have applied for PR as well.If I get an invitation do I need to exit Australia or should I accept the invitation here.

    Reply
    1. Peng Cheng Post author

      Hi Raj,
      You would need to be outside of Australia when you lodge, but you can accept your invitation and prepare your application when you are in Australia.
      You can apply for a BVB to travel if you have a BVA.
      PC

      Reply
  19. Ranjeet

    Hi Peng ,
    You’re very helpful mate

    I got visa cancellation under 8202 condition. I’m on AAT . I have finished 2 years study . I have RSMS , what do you recommend me to apply RSMS offshore or Wait till final decision of AAT ? How many chances are of visa not cancelled, because i was not enrolled for 2-3 months.

    Reply
    1. Peng Cheng Post author

      Hi Ranjeet,
      If you want to lodge a 187 visa, you would need to be outside of Australia if s48 applies – see above post.
      Sorry but I can’t provide advice just based on your comment information.
      Please see Contact Us page and in relation to our Consultation Service – feel free to contact us if you need advice in relation to your visa options.
      PC

      Reply
  20. SYED AHMED

    Hi Peng,

    Hope you will find my message in the best of your health.

    I am currently on bridging Visa A. I applied for 189 Visa from student visa back in Feb 2017 (which was ended in March 2017) and still waiting for my outcome. I haven’t gone home for last two and half year. I am wishing to apply for Bridging Visa B for 2 months so that I can go home and spend time with my family.

    If I am on bridging Visa B and I get a negative outcome of my 189 VISA what options do I have?
    If I was not in Australia and I got my negative outcome?
    Secondly will I be getting 485 Graduate Visa although I didn’t apply for that but I had two year study which finished in December, 2016. My points were completed so I directly applied for 189 rather than 485.
    Reason I am worried about negative outcome is I had a police case. Although there was NO conviction recorded for Assault case and also there is no pending case as well. I am having this feeling this may cause negative effect on my application as other people have already had their outcome who applied with me in feburary. So I am worried that should I apply for bridging Visa B or not. If I do and get a negative outcome while I am away from Australia.

    Your reply would be highly appreciated.

    Best regards
    syed

    Reply
    1. Peng Cheng Post author

      ​H​i Syed,
      You can appeal the refusal to the tribunal if the Department refuses – please see above post.
      PC

      Reply
  21. Suzan

    Hi Peng,

    I am in India can I still apply for MRT.

    I sponsored my husband from India and have 2 tender age children with him. Myself and. Children are Australian and we are back to India due to lack of physical support in Australia. I had mental issues and have all reports from Australia and in India as well I am going through treatment.

    I took his sponsorship back last year. It’s been more than one year we do not have financial or physical support form him. He just got married to get permanent residency of Australia.

    He is still there and so greedy for money that our children are suffering here.

    If I apply through MRT to cancel his visa how long will it take and is it even possible as I am not in Australia at the moment.

    He is trying to get subclass 100 and arrived in Australia on subclass 309

    Reply
    1. Peng Cheng Post author

      Hi Suzan,
      You can contact the Department if you wish to inform them that you are withdrawing your sponsorship for this partner visa.
      The tribunal only handles appeal applications. You can contact the tribunal if your matter is proceeding through this.
      PC

      Reply
  22. Ken

    Hi peng,
    I am currently on my bridging visa A while waiting for the result of my protection visa application. Since l have the right to study with this bridging visa, what will happen if im already been in a college but soon after my protection visa is refused? Does that mean that l have to quit my school? and if to prevent such situation, is it possible for me to change my visa to student visa?

    Reply

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