Professional Documents
Culture Documents
the MRT
(Core CPD Item DN21)
Distance Learning CPD
Learning outcomes
At the conclusion of the seminar, the RMA will be familiar with the processes and
practice and procedure of proceedings at the Migration Review Tribunal.
Content outline
Learning outcomes
At the conclusion of the seminar, inexperienced RMAs will have an insight into the
conduct of proceedings in the MRT. More experienced practitioners will have a better
insight into the strategic and tactical considerations underpinning the conduct of
proceedings at the MRT.
Index
Topic
Background
Table A- workload trends
Role of the RMA & Prospects
Cases decided and set aside rates
and outcomes for review
Introduction
Judicial review and outcomes
Current trends
Getting the basics right!
The golden rule
The postal rule
Exceptions to the golden rule
Understanding the case
First things first
Exercise
Dotting the Is and crossing the ts
That is not what happened
Exercise
More questions
Preparing for the hearing
Rules for the witness
Show me more!
At the hearing
The conduct of the hearing
Index to annexures
Page Number
5
5
5
6
7
7
8
8
8
9
13
13
14
14
14
15
15
15
16
17
18
18
18
20
Background
The Migration Review Tribunal (MRT) commenced on the 1 June 1999. The jurisdiction
of the Tribunal arises out of Migration Act 1958 and the Migration regulations 1994.
The MRT can review, on the merits a range of matters which includes decisions to grant
visas, to cancel visas, to refuse to approve sponsors and a refusal to approve nominated
positions or business activity. The MRT is required, under Section 353 to provide a
mechanism of review that is fair, just, economical and quick.
2009-10
2008-09
2007-08
139
690
1937
567
139
562
691
684
177
389
781
626
+23%
+180%
-17%
285
314
182
-9%
1182
1157
739
875
187
574
8332
1889
1372
536
501
209
525
7422
933
1474
537
653
113
460
6235
-37%
-16%
+38
+75%
-11%
+9%
+12%
Compare and contrast this data with the latest annual report data on lodgements.
Lodgements
2012-13
2011-12
2010-11
MRT
Visa
refusal
Bridging
342
267
264
+28%
Visa
refusal
942
944
920
0%
Visa
refusal
Student
3,454
3,820
3,138
-10%
Visa
refusal
Temporary work*
1,038
634
621
+64%
Visa
refusal
Permanent
business
1,143
806
661
+42%
Visa
refusal
Skilled
4,326
3,606
635
+20%
Visa
refusal
Partner
1,855
1,345
1,348
+38%
Visa
refusal
Family
1,174
727
672
+61%
Cancellation
Student
727
1,043
1,107
-30%
Nomination/Spons
or
approval
refusal
696
516
513
+35%
Other
467
380
436
+23%
Total MRT
16,164
14,088
10,315
+15%
Visitor
Visitor.................................................................6%
Student...........................................................21%
Student cancellation...................................4%
Partner............................................................11%
Permanent business....................................7%
Bridging.............................................................2%
Family..................................................................7%
Other..................................................................3%
Temporary work.............................................6%
The MRT although bound by the same law exercises independent review of a refused
reviewable decision and may either affirm the decision to refuse to grant a visa or set
aside the primary decision and substitute another decision in respect of threshold and
determinative criteria and thus remit the matter back to DIBP for final decision.
The role of the RMA can and does have a significant impact on the business of the MRT,
the very fact of an RMA being involved in the review of a reviewable decision. In cases
where applicants are represented the set aside rate was 47% as opposed to 28% for
unrepresented applicants.(2009/2010)
Compare and contrast this to the following statement for the year ending 30 June 2013.
Applicants were represented in 64% of cases decided. Most commonly, representation was by a
registered migration agent. In cases where applicants were represented, the set-aside rate was
higher than for unrepresented applicants. The difference was more notable for RRT cases, where
the set-aside rate was 47% for represented applicants and 11% for unrepresented applicants. All
unauthorised maritime arrival applicants have been offered representation at primary and review
stages through the government-funded Immigration Advice and Application Assistance Scheme
(IAAAS) and this caseload has a higher set-aside rate than other caseloads. Unrepresented
applicants may not have sought advice on their prospects of success before applying for review or
may have applied despite obtaining advice that the prospects of success were low. Only 66% of
unrepresented applicants to the RRT attend hearings, compared to almost 87% of represented
applicants. For the MRT, there was also a significant difference in outcome for unrepresented
applicants. The set-aside rate was 33% for represented applicants and 22% for unrepresented
applicants. page 20 MRT/RRT ANNUAL report 2012/13
However there can be pitfalls associated with representing a client too vigorously.
Migration Agents
Sixty-four per cent of applicants were represented in 2012-13. With limited exceptions,
a person acting as a representative is required to be a registered migration agent.
Registered migration agents are required to conduct themselves in accordance with a
code of conduct. The tribunals referred three matters to the Office of the Migration
Agents Registration Authority (OMARA) during 2012-13 regarding the conduct of
migration agents. OMARA is responsible for the registration of migration agents,
monitoring the conduct of registered migration agents, investigating complaints and
taking disciplinary action against registered migration agents who breach the code of
conduct or behave in an unprofessional or unethical way.
(See page 31 of MRT/RRT annual report 2012/13)
2008-09
Set Cases
%
aside
2007-08
Set Cases
%
aside
133
637
564
560
12%
59%
37%
37%
169
294
459
294
25%
48%
49%
37%
165
42%
131
47%
958
1221
557
412
96
51%
67%
45%
40%
27%
577
1468
517
853
55
53%
62%
43%
51%
36%
464
5767
35%
48%
402
5219
32%
50%
Set
The MRT set-aside, or set-aside and remitted, the primary decision in 29% of cases
decided and affirmed the primary decision in 46% of cases decided. The remaining
cases were either withdrawn by the applicant or were cases where the tribunal decided
it had no jurisdiction to conduct the review. The set-aside rate in 2012-13 was
significantly lower than the rate of 37% in 2011-12. One contributing factor was a lower
8
set-aside rate for student and skilled refusals, which together comprised 53% of
decisions made.
(See page 20 of 2012/13 annual report)
The MRT set aside or remitted the primary decision in 45% of cases decided in 2010/11
that has trended down to 29% overall in 2012/13. At the same time the Tribunals work
load has doubled. This trending is overall very worrying and may be indicative of
fatigue but may also be a result of the lack of room to move arising because of the heavy
DIBP reliance on PIC4020
2011-12
% set-aside
2010-11
Cases
% set-aside
Cases
% set-aside
MRT
Visa refusal
Bridging
340
15%
264
12%
267
12%
Visa refusal
1,090
56%
695
65%
752
59%
Visa refusal
Student
3,631
23%
2,334
31%
1,320
36%
Visa refusal
Temporary
work
852
24%
556
26%
355
25%
Visa refusal
Permanent
business
767
35%
233
29%
148
32%
Visa refusal
Skilled
4,576
23%
762
36%
958
53%
Visa refusal
Partner
1,426
53%
1,108
55%
937
62%
Visa refusal
Family
978
41%
557
44%
471
39%
Cancellation
Student
917
13%
833
21%
796
25%
Nomination
/Sponsor
approval
refusal
606
23%
340
15%
214
24%
Other
407
29%
329
43%
359
33%
Total MRT
15,590
29%
8,011
36%
6,577
41%
Visitor
2009-10
2008-09
2007-08
3429
2700
796
655
7580
2783
2005
495
484
5767
2611
1875
369
364
5219
10
Introduction
The conduct of proceedings in the Migration review Tribunal is an integral part of the
day to day practise of the provision of immigration assistance as a Registered
Migration Agent (RMA).
This seminar paper and the consequential lecture is intended to equip the practitioner
with an armoury of tools to address both the practice and procedure of the Tribunal as
well as the strategic and tactical considerations attendant to winning a case.
As a philosophical starting point, with a few important exceptions winning is
everything; but sometimes, even if you lose your case you can still be a winner.
In this paper I attempt to impart my accumulated (20+ years) experience and
knowledge to place into you the best position to win the case before the tribunal so as to
best position your client for the grant of a visa.
Tribunal decision
Court applications
% of tribunal decisions
Applications resolved
-decision upheld or
resolved
-set aside by consent or judgement
56
-set aside as % of judicial 33.9%
applications resolved
-set aside decisions as % of 0.7%
MRT/RRT decisions made
11
MRT
200809
5767
243
4.4%
236
162
MRT
200708
5217
244
4.7%
241
150
RRT
200910
2157
508
23.6%
299
268
RRT
200809
2462
847
34.4%
817
702
RRT
200708
2318
1090
47.0%
1090
921
74
31.6%
91
37.8%
31
10.4%
115
14.1%
169
15.5%
1.3%
1.7%
1.4%
4.7%
7.3%
2011-12
RRT
2010-11
2012-13
2011-12
2010-11
Tribunal
decisions
15,590
8,011
6,577
3,757
2,804
2,604
Court
applications
653
261
255
743
698
541
%
of
tribunals
decisions
4.2%
3.3%
3.9%
19.8%
24.9%
20.8%
Application
s resolved
196
242
252
201
618
537
decision
upheld or
otherwise
resolved
174
205
219
176
545
497
set-aside
by consent
or
judgement
22
37
33
25
73
40
set-aside
decisions as
%
of
judicial
applications
resolved
11.2%
15.3%
13.1%
12.4%
11.8%
7.4%
set-aside
decisions as
% of total
tribunal
decisions
made
0.1%
0.5%
0.5%
0.7%
2.6%
1.5%
Current trends
In 2012 I made the following statement:
In an issues paper published by the MRT in May 2011 the MRT foreshadowed a total case
load for the financial year ending 30/6/2010 of 10,150 cases.
This dramatic increase from 7580 to 30 June 2010 to a projected 10,150 (28%) has also
seen a significant variation in the types of MRT reviewable decisions making up the
caseload. There have been significant increases in the volume of student refusal, student
12
cancellation, bridging visa refusal and permanent business refusals. There has been a
decline in the skilled, family and temporary business refusals.
This trend will inevitable see delays in both the constitution and decision making process.
I was half right the trend to refusal has increased from 45 percent set aside rate to 29
percent. The workload has doubled and the delays in attending to matters and
constituting the Tribunals has dropped from about 18 months to 12 months.
The relevant regulations which articulate the postal rules are as follows:
MIGRATION REGULATIONS 1994 - REG 4.10
Time for lodgement of applications with Tribunal (Act, s 347)
1. For paragraph 347 (1) (b) of the Act, the period in which an application for
review of an MRT-reviewable decision must be given to the Tribunal:
a) If the MRT-reviewable decision is mentioned in subsection 338 (2) or (7A) of
the Act -- starts when the applicant receives notice of the decision and ends at
the end of 21 days after the day on which the notice is received; or
b) If the MRT-reviewable decision is mentioned in subsection 338 (3) or (3A) of
the Act -- starts when the applicant receives notice of the decision and ends at
the end of 7 working days after the day on which the notice is received; or
c) If the MRT-reviewable decision is mentioned in subsection 338 (5), (6), (7) or
(8) of the Act -- starts when the applicant receives notice of the decision and
ends at the end of 70 days after the day on which the notice is received; or
d) If the MRT-reviewable decision is prescribed under subsection 338 (9) of the
Act -- starts when the applicant receives notice of the decision and ends at the
end of 21 days after the day on which the notice is received.
2. However, the period in which an application by a detainee for review of an MRTreviewable decision must be given to the Tribunal:
a) In the case of an application for review of a decision of a kind mentioned in
subsection 338 (4) of the Act -- starts when the detainee receives notice of
the decision and ends at the end of 2 working days after the day on which the
notice is received; or
aa) In the case of an application for review of a decision to which paragraph 4.02
(4) (f) applies -- starts when the detainee receives notice of the decision to
14
refuse to grant the visa mentioned in subparagraph 4.02 (4) (f) (ii) and ends
at the end of 2 working days after the day on which the notice is received; or
b) In any other case -- starts when the detainee receives notice of the decision
and ends at the end of 7 working days after the day on which the notice is
received.
2A. For subparagraph 347 (1) (b) (iii) of the Act, the prescribed number of days in
respect of an MRT-reviewable decision prescribed under subsection 338 (9) of
the Act is 28 days.
Note: For subparagraph 347 (1) (b) (iii) of the Act, there must be a prescribed
number of days in respect of kinds of decisions covered by subsection 338 (9) of
the Act. The prescribed period for applications for review must end not later
than the prescribed number of days after notification of the decision.
4. An application for review of an MRT-reviewable decision must set out:
a) The name and address of the applicant for review; and
b) A brief statement of the capacity in which the applicant applies for review;
and
c) Details of the decision to which the application relates; and
d) If:
(i) The application is made in relation to a decision refusing to grant a visa,
or a decision relating to a points test assessed score; and
(ii) The applicant for the review was not also the applicant for the visa;
(iii) The name and address of the applicant for the visa.
5. An application that is sent to the Tribunal by post is taken to be given to the
Tribunal at the time it is received at a registry of the Tribunal.
6. An application that is sent to the Tribunal by fax or other electronic means is
taken to be given to the Tribunal at the time the fax or transmission is received at
a registry of the Tribunal.
3A. If the primary decision was covered by subsection 338(7A), an application for
review may only be made by a non-citizen who:
a) Was physically present in the migration zone at the time when the decision was
made; and
b) Is physically present in the migration zone when the application for review is
made.
4. If the MRT-reviewable decision was covered by subsection 338(4), the approved form
for an application for review must include a statement advising the applicant that the
applicant may:
a) Request the opportunity to appear before the Tribunal; and
b) Request the Tribunal to obtain oral evidence from a specified person or persons.
A request must be made in the approved form and must accompany the
application for review.
5. Regulations made for the purposes of paragraph (1)(b) may specify different periods in
relation to different classes of MRT-reviewable decisions (which may be decisions that
relate to non-citizens in a specified place).
16
basis
on Onshore
Postal
of offshore period
309/100 Spouse
Offshore
21 days
Fianc
Offshore
21 days
ENS (offshore)
Offshore
21 days
457
(applicant Offshore
21 days
offshore)
820/801 spouse
Onshore
7 days
Sec
116
visa Onshore
7 days*
cancellation
*No postal rule if emailed or hand delivered
17
Exercise 1
Ask yourself the following questions; what is this case about? What are the statutory
requirements attendant to the making of an application in this class? What do the
regulations say are the relevant requirements? Has the decision maker articulated the
correct law? What are the facts of the case and how do those facts stack up as against
the statutory scheme?
More Questions...!
Ask your client about the interview and seek to establish the following facts:
1. Who was present at the interview?
2. Was the interview recorded by the use of a tape recorder or digital recorder?
3. Did the case officer appear to be making notes of what was being asked and what
answers where being given?
4. Was there an interpreter present?
5. Did the Applicant have any difficulty with the interpreter?
6. What language did the Applicant speak (inclusive of dialect) and what language
did the interpreter speak (inclusive of dialect)?
7. What was the demeanour of the DIBP interviewing officer (friendly, mean,
dominating, threatening or helpful)?
8. What particular facts recorded in the DIBP files are in dispute? Particularise the
specific factual matter in dispute.
9. Do the notes of the interview record the questions asked and the answers given?
19
20
Show Me More!
1. Website: www.mrt-rrt.gov.au
2. Tribunal decisions are available on the AustLii website at: www.austlii.edu.au
3. MRT & RRT Annual Report 2009-2010
At The Hearing
Tribunal Member:
Are you asserting to me that the Departmental officer is lying?
Registered Migration Agent (RMA):
Not at all Member, all I am suggesting is that the DIBP officer has failed to maintain an
accurate and complete record of what transpired at interview.
Never accuse a DIBP officer of lying; it makes you look bad. It is also impossible to
prove. At best all you can do is seek to infer that the DIBP officer is incompetent. Do not
falsely accuse any person of lying or being incompetent.
21
3. Assist the Tribunal in locating documents so as to create the perception that you
are professional and independent and there to assist both the Tribunal and the
Applicant.
4. Do not disagree with your client during the course of the proceedings at the
Tribunal.
5. Do not be disruptive of the proceedings or become argumentative when
addressed by the Tribunal.
6. Conduct yourself in a professional and courteous manner at all times and in all of
your dealings with the Tribunal.
Be warned!
The Tribunal is not shy about reporting RMAs to the OMARA
Sixty-four per cent of applicants were represented in 2012-13. With limited exceptions,
a person acting as a representative is required to be a registered migration agent.
Registered migration agents are required to conduct themselves in accordance with a
code of conduct. The tribunals referred three matters to the Office of the Migration
Agents Registration Authority (OMARA) during 2012-13 regarding the conduct of
migration agents. OMARA is responsible for the registration of migration agents,
monitoring the conduct of registered migration agents, investigating complaints and
taking disciplinary action against registered migration agents who breach the code of
conduct or behave in an unprofessional or unethical way.
(See page 31 of MRT/RRT annual report 2012/13.)
22
Conclusion
Being represented by an RMA at a hearing at the MRT has a significant impact on the
outcome of an application. The overall set aside rate for all types of cases at the MRT
was 29 percent. In cases where the applicant was represented by an RMA the set aside
rate was 33 percent as opposed to 22 percent for unrepresented applicants.
The facts speak clearly that the volume of work at the Tribunal is increasing and that the
overall trend to set aside a DIBP first instance decision is plummeting. These case s are
important for the Applicant and they have a significant emotional and financial
investment in seeing the matter through.
Be realistic in your advice and take a long strategic view about what you can achieve
and do not be afraid to look beyond an outcome at the MRT which sees a refusal but
leaves the door open to other strategic options.
C.H. Levingston
Sydney
23
Index to Annexure
Annexure A
Annexure B
Annexure C
C: Sreys Case
Annexure D
D: Sample Submission
Annexure E
Annexure F
24