THE MESSAGE. BRINGING INTO FOCUS FILIPINO PRESENCE IN AUSTRALIA
www.kalatas.com.au | Volume 5 Number 2 | November 2014
IMMIGRATION
09
Appeal to the Migration
Review Tribunal (MRT)
A
visa applicant
or sponsor aggrieved by the
decision of the
Department of
Immigration and Border Protection (DIBP) in some cases
has the right of review before
the Migration Review Tribunal. The MRT is an independent merits review body. It is
not bound by the decision of
the Immigration Department,
but it applies the same rules
and regulations governing the
application under review. In
the course of its review power,
it can either affirm the decision of the Department or remit
the matter to the Department
with a direction that the visa
applicant has satisfied the relevant criteria of the appealed
decision.
It is mandatory that the application for review must be
made strictly within the time
limit usually 21 days in most
refusals made in Australia or
70 days if refusal was made
overseas. The appeal must be
made in a correct form available at MRT’s website and
the correct fee must be paid
- $1,604.00 as of this writing
unless concession applies.
In September and October, we successfully appealed
some cases to the MRT:
THE PERSISTENT MALE
VICTIM OF DOMESTIC
ABUSE:
The Ecuadorian man
was sponsored by his partner on partner visa and during the processing of his permanent residence application,
his partner withdrew the sponsorship. We notified the DIBP
to consider the application under the domestic violence provision now called ‘family violence provision’. DIBP denied the application.
We appealed the decision
to the MRT who after hearing referred the application to
an independent expert for further assessment of the claimed
domestic violence. The independent expert made a decision that the applicant was
not a victim of domestic violence. MRT took the decision of the independent expert as correct and affirmed
the decision of the Department refusing the partner ap-
plication. We appealed the decision to the Federal Circuit
Court of Australia which remitted the matter back to the
MRT by consent with an Order directing the MRT to reconsider and determine the
application according to the
law. Further, the Court noted that the MRT erred in taking as correct an opinion of
an independent expert where
that independent expert was
not provided by MRT will all
the relevant material. (FCCA
SYG2571/2013).
The Tribunal on re-hearing accepted the claim of domestic violence of the visa applicant and competent persons and remitted the matter
to the Department of Immigration with a direction that
the visa applicant met the criteria for partner (subclass 100
visa) residence application.
(case decided on 26.09.2014).
SUBJECT TO SCHEDULE
3 CRITERIA:
A Pakistani man was
sponsored by his wife on partner visa. As his application
was filed when he was illegal (visa expired), he was re-
quired by the Department to
explain whether there were
“compelling and compassionate” circumstances that warrants waiving the Schedule 3
criteria. His application was
denied by the Department of
Immigration as it was not convinced that there were compelling reasons for waiver of
the Schedule 3 criteria.
We appealed the refusal to
the MRT on the grounds that
the wife has multiple medical problems which requires
an ongoing assistance by the
applicant; the hardship that
the wife will experience if left
alone should the partner return overseas and she has no
other support except the husband; and the deteriorating
peace and order condition in
Pakistan.
The Tribunal reversed
the decision of the Immigration department and found
the medical reports provided
by the sponsor were “compelling” for grounding a waiver
of the Schedule 3 criteria. The
case was remitted to the Department of Immigration with
a direction from the Tribunal
IMMIGRATION
ATTY. JESSIE
ICAO
[email protected]
that the applicant met the criteria for partner temporary
(subclass 820) visa. (case decided 02.10.2014).
SKILLED APPLICANT
WITH NO UPDATED
SKILLS ASSESSMENT:
This is a novel case because at the time the applicant
lodged his skilled permanent
residence as Software and
Application Programmer, he
submitted an old assessment
from the Australian Computer Society (ACS) no longer in
the new ANZSCO Code. His
application was refused by the
DIBP for failure to submit an
assessment at the time of application.
On appeal to the MRT,
the applicant was able to get
an updated positive assessment for the nominated occupation. This is unique because normally, you will not
win your case if you did not
provide a positive assessment of your nominated occupation at the time of application. In this case, the Tribunal
found that our client provided
a new skills assessment from
ACS and remitted the matter
back to Immigration with a direction that the applicant met
the criteria for skilled permanent residence visa (decided
on 25.09.2014).
Jessie Icao is a practising
solicitor in the State of New
South Wales and registered
migration agent since 1993
(MARN 9367993). He is
admitted as a lawyer in the
Philippines. The information
provided is of general nature
and cannot be relied in its
entirety. I suggest that you
consult a registered migration
agent or refer to the relevant
law.