Migration Review Tribunal - Has Your Visa Application Been Refused or Your Visa Cancelled?

By Ray Turner

Has your visa application been refused or your visa cancelled?

The Migration Review Tribunal (MRT) is a person’s last opportunity to have a visa refusal or cancellation reviewed “on the merits”.  That is, the Migration Review Tribunal is the last place where you can bring new evidence to support your case or application which was not before, or considered by, the original decision maker when your visa application was refused or your visa cancelled.

The Federal Magistrates Court or Federal Court are not able to consider fresh evidence and can only consider whether your case was legally and/or fairly considered by the Migration Review Tribunal.  It is, therefore, important to obtain proper legal advice before going to the Migration Review Tribunal and not waiting until after the Tribunal’s decision. Getting legal advice at this crucial stage will ensure that if an appeal against the Migration Review Tribunal’s decision is lodged in the Federal Magistrates Court, the hearing at the Migration Review tribunal will have been conducted strategically to maximise the chances of a successful appeal to the Federal Magistrate’s Court.

Time limits for appealing to the Migration Review Tribunal

In addition to the Migration Review Tribunal being the last opportunity to have your case reviewed on the merits with new evidence, there are very strict time limits that govern when you can apply to the Tribunal and these time limits vary according to the different types of decisions which you want the Migration Review Tribunal to review. 

Just because a friend had 21 days to appeal the decision, doesn’t mean that you will have 21 days to appeal against your decision.  It is, therefore, important that you obtain legal advice as soon as you receive notification of your refusal decision or visa cancellation from the Department of Immigration and Citizenship and not wait until the last few days that you believe you have before you have to lodge your appeal against the refusal decision or visa cancellation.  You may be wrong with your calculations and if you miss your date there is nothing that can be done to extend your time to appeal to the MRT.

The only way that the apparent time limits set by the MRT can be challenged is by arguing that the proper procedure for notification of the refusal or visa cancelation was not followed. In a recent case we were only able to challenge time by showing that the e-mail notifying the decision, although it had been sent by the Department of Immigration and Citizenship, had never, in fact, been received by the internet service provider of the person whose visa application had been refused.  By establishing this fact, the Department of Immigration and Citizenship accepted that the visa applicant had never been notified of the refusal of his visa application and therefore the time limit for lodging the appeal had never started. As a result, we lodged his appeal in the Migration Review Tribunal and the matter is still under consideration.

Procedure leading to Cancellation

If your student visa has been cancelled you need to act quickly or risk missing your final opportunity in the Migration Review Tribunal to have your visa re-instated therefore allowing you to remain in Australia, continue studying and, ultimately, apply for permanent residence.  It is necessary to respond immediately to any Notice of Cancellation, Notice of Intention to Consider Cancellation or Section 20 Notice you receive from the Department of Immigration and Citizenship. It is just as important to respond immediately to any Notice of Intention to Report you might receive from your registered education provider. Good immigration lawyers will then consider whether it was a proper notice according to the legislative requirement and whether you were properly treated throughout the cancellation process.  These are complex questions of law which require proper, professional legal advice and may be the keys to getting your visa back and ultimately achieving your goal of Australian permanent residence and citizenship.

Bridging Visa Extensions and Immigration Status

It is important to realise that if you are on a Bridging Visa A, as a result of a visa application, that bridging visa can only be continued, after a visa refusal, if you apply to the Migration Review Tribunal within the time limit provided. If you do not appeal to the Migration Review Tribunal then your Bridging Visa will expire and you will need to depart Australia or become unlawful and face detention and removal from Australia.

Australia’s Immigration Laws are extremely complex and it is essential that, if you have a visa cancelled or application refused, you seek competent legal advice as soon as possible, within days, of being advised of the decision.

Your rights to remain in Australia and make further applications for visas and residence depend on the quality of advice you receive and the action you take.

If you face visa cancellation, have had a visa application refused or seeking immigration legal advice above and beyond what your migration agent has given you, then contact Ray Turner or Stewart Coulson of Turner Coulson Immigration Lawyers now  on info@tcilawyers.com.au or call +61 02 9264 4654 and ask for Ray or Stewart.

About the author

Ray Turner is an accredited specialist immigration lawyer and principal solicitor at Turner Coulson Immigration Lawyers.