The Department of Immigration and Border Protection (DIBP) does
not always make the correct decision about a visa application and for many
visas an appeal can be made to the Migration Review Tribunal (MRT). This is
called ‘merits review’. The MRT is able
to look at the application again, including any new information or evidence in
support of the application.
There are a number of reasons to recommend a review of a visa refusal by
the MRT. The MRT is an independent body and separate to the DIBP. The MRT 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 DIBP 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
Decisions 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
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. 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 a registered migration agent can represent you at the MRT. There
are a number of reasons why professional assistance can increase your prospects
of success. Your agent can assist with the presentation of your case and
prepare written submission to support your case.
The experienced team of immigration lawyers at Nevett Ford are all registered
migration agents and specialize in migration regulations and policy.
If you have any queries in relation to the above, please do not hesitate
to contact us directly.
