Winning at

the MRT
(Core CPD Item DN21)
Distance Learning CPD

Legal Training Australia

ABN 81 151 154 639

Distance learning CPD

This seminar paper is published by Legal Training Australia Pty Ltd (LTA) who retains
the copyright to the intellectual property created herein.
Scope
The scope of this paper is to provide a CPD in distance learning format for Registered
Migration Agents (RMAs) in respect of the Core subject Winning at the MRT.
Copyright
The proprietors of LTA retain all rights with respect to the relevant intellectual property
irrespective of the authorship of the paper. The reproduction of Commonwealth
legislation and or Department of Border Protection (DIBP) policy is on the basis of fair
use and is limited for the purposes of conveying education outcomes to RMAs. All
legislation reproduced is not an authorised nor does it purport to be the version current
beyond the date of creation.
Disclaimer
Extracts of legislation and policy as well as the relevant commentary are not intended to
constitute legal advice. Any persons seeking to rely on the contents of these papers
should not do so without seeking professional and independent legal advice. The
proprietors of LTA do not accept any liability in respect of the contents of this paper
other than in the context of CPD activities on the LTA website.
Currency
The information contained in this module is current as at January 2014.

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

Background to the MRT and its work

Understanding the legal framework for the time constraints on lodgement of an
application
Preparing for a hearing
Defining the parameters of the legal issues
Exercises on forensic analysis and problem solving
The strategic perspective of preparation for hearing
Rules for witnesses
Conduct of the hearing
Annexures

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.

Table A-Workload trends

Migration
Review
Tribunal
Visa refusal-Bridging
Visa refusal- Visitor
Visa refusal-Student
Visa
refusal-Temporary
business
Visa
refusal-permanent
business
Visa refusal-Skilled
Visa refusal- partner
Visa refusal-family
Cancellation-student
Sponsor approval refusal
Other
Total MRT

2009-10

2008-09

2007-08

%change 2008-09 to 2009-10

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

% change 2011-12 to 2012-13

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

The work load of the MRT has doubled since 2010.

The increase in visa refusals for temp residence and family migration are I
believe related to refusal trends relying on PIC4020.
In 2012-13, the MRT received 16,164 lodgements which included significant increases
in temporary work, family, permanent business and partner lodgements.
Figure 1 provides an overview of MRT lodgements by case category.

FIGURE 1 MRT LODGEMENTS BY CASE CATEGORY

Skilled...............................................................27%

Visitor.................................................................6%

Student...........................................................21%

Student cancellation...................................4%

Partner............................................................11%

Nomination/Sponsor approval refusal.......4%

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)

Table B- Cases decided and set aside rates

2009-10
Case %
s
aside
Migration Review Tribunal
Visa Refusal Bridging 151
15%
Visa Refusal Visitor
679
58%
Visa Refusal Student 738
42%
Visa
Refusal
571
30%
Temporary Business
Visa
Refusal
278
46%
Permanent Business
Visa Refusal skilled
1895 42%
Visa Refusal Partner 1268 66%
Visa Refusal Family
546
42%
Cancellation Student 811
41%
Sponsor
Approval 161
21%
Refusal
Other
482
38%
Total MRT
7580 45%

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

Here are the numbers

Table 21 Cases decided and Set-aside Rates
2012-13
Cases

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

(See page 114 of Annual report 2012/13)

Referrals to the Minister

About 2% of the decided cases were the subject of a referral by a Tribunal member to
the Minister for consideration of the exercise of his powers under section 351 or the
Migration Act 1958.
Table C - Outcomes of review
Migration Review Tribunal
Primary decision set aside or remitted
Primary decision affirmed
Application withdrawn by applicant
No jurisdiction to review
Total

2009-10

2008-09

2007-08

3429
2700
796
655
7580

2783
2005
495
484
5767

2611
1875
369
364
5219

The situation 2012/13

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
set-aside rate for student and skilled refusals, which together comprised 53 percent of
all cases decided.

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.

Table D- Judicial review applications and outcomes as at 31 August 2010

MRT
200910
7580
242
3.2%
165
otherwise 109

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%

Table 5 Judicial Review Application and Outcomes

MRT
2012-13

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%

(See page 24 of MRT/RRT annual report 2012/13)

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.

Getting the basics right!

There is absolutely no point in seeking the review of a reviewable decision by lodging
an application for review (form MRT 01) outside of the relevant period.
Thus, as a threshold question consideration needs to be carefully given to the relevant
period specified as constituting the reviewable decision within the time frame specified
by the Act and regulations.
Briefly stated, reviewable decisions fall into two broad categories. That is decisions
made in respect of applications onshore and decisions made in respect to applications
offshore (overseas).
As a general rule decisions made onshore have a period of 28 days to seek a review;
whereas decisions made offshore (overseas) have a total of 91 days to seek a review.

The golden rule

This general rule is qualified by a number of very important exceptions which will be
identified and discussed during the course of this paper.
First and foremost the postal rule applies in respect of both onshore and offshore
reviewable decisions.
This in respect of onshore reviewable decisions the decision made in Australia
nominates on the decision record the relevant date of the decision (Example at
annexure B). The relevant rule requires the decision maker to communicate that
decision in writing within a specified period (2 days) to the applicant for the visa. The
regulations provide thereafter 7 working days for the applicant to receive the relevant
communication (the refusal). Thereafter the applicant has a period of 21 calendar days
to prepare and lodge an application for review at the Migration Review Tribunal (MRT)
utilising a standard form; MRT 01.
13

A copy of a form MRT01; Appointment of representative and application for access to

documents is at Annexure A to this paper.
The relevant filing fee is $1604 irrespective of the place of the making of the relevant
decision (i.e.: onshore or overseas).
In respect of an offshore or overseas application the relevant rule is that the decision
record once dated is posted to the applicant at the address nominated on the
application. Thereafter the letter has 21 calendar days to be received by the applicant
for review with a further period of 70 calendar days to prepare and lodge the relevant
from MRT 01.

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.

MIGRATION ACT 1958 DIVISION 3 REVIEW OF DECISIONS BY MRT

347 Application for review by Migration Review Tribunal
1. An application for review of an MRT-reviewable decision must:
a) Be made in the approved form; and
b) Be given to the Tribunal within the prescribed period, being a period
ending not later than:
(i) If the MRT-reviewable decision is covered by subsection 338(2), (3),
(3A), (4) or (7A)28 days after the notification of the decision; or
15

(ii) If the MRT-reviewable decision is covered by subsection 338(5), (6),

(7) or (8)70 days after the notification of the decision; or
(iii) If the MRT-reviewable decision is covered by subsection 338(9)
the number of days prescribed, in respect of the kind of decision in
question prescribed for the purposes of that subsection, after the
notification of the decision; and
c) Be accompanied by the prescribed fee (if any).
2. An application for review may only be made by:
a) If the MRT-reviewable decision is covered by subsection 338(2), (3), (3A),
(4) or (7A)the non-citizen who is the subject of that decision; or
b) If the MRT-reviewable decision is covered by subsection 338(5) or (8)
the sponsor or nominator referred to in the subsection concerned; or
c) If the MRT-reviewable decision is covered by subsection 338(6) or (7)
the relative referred to in the subsection concerned; or
d) If the MRT-reviewable decision is covered by subsection 338(9)the
person prescribed in respect of the kind of decision in question
prescribed for the purposes of that subsection. Note: Section 5G may be
relevant for determining family relationships for the purposes of
paragraph (2)(c).
3. If the MRT-reviewable decision was covered by subsection 338(2), (3), (3A) or (4), an
application for review may only be made by a non-citizen who is physically present in
the migration zone when the application for review is made.

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

Exceptions of the golden rule

In respect of offshore (overseas) applications there are no exceptions to the golden rule
(21 days + 70 days).
In respect of onshore visa applications the following are exceptions to the usual rule of
7 working days plus 21 calendar days (total 28 days).
1. Cancellation of a student visa under Section 116.
2. Refusal of an application to revoke the automatic cancellation of a student visa
pursuant to the provisions of section 137 of the Migration Act 1958.
This table sets out the relevant decisions and the applicable postal rule as well as the
nominated appeal period specified in the regulations.
Statutory
decision

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

Specified lodgement period

70 days
70 days
70 days
70 days
21 days
7 days

Understanding the Case

It is fundamental to the process of conducting proceedings in the Migration Review
Tribunal that you understand the case that you have to meet at the Migration Review
Tribunal.
What I propose hereafter is a model approach to an analysis of the relevant decision
record and the formulation of the strategic plan to win the case.

First Things First

Obtain a copy of the decision record and read it carefully. Look at the decision record,
does that decision record correctly articulate the statutory basis for the decision and the
reasoning that underpins the decision.

17

It is largely irrelevant as to whether the decision is made either onshore, in Australia, or

offshore, outside of Australia.

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?

Dotting the is and crossing the ts

The fundamental rule in facing the case made by the decision maker is to conduct an
analysis of the decision and the evidentiary basis that underpins the relevant decision.
The decision record, in effect, constitutes one version of the intersection between the
available facts and the relevant law. It is not anything other than a summary of the
opinion as to the state of the evidence articulated by the decision maker.
Accordingly, it is, in my view, incumbent upon the RMA to obtain a copy of the client file
so as to conduct an independent review of the available evidence.
This can be achieved by resort to the completion of An Application for Access to
Documents which should be filed at the time of the making of the application for
review. The relevant form is extracted at annexure A at A3.
That request in effect constitutes a Freedom on Information Request (FOI) and is
invaluable in the forensic process of the analysis of the decision record.
To use the example of a spouse application, the Freedom of Information Request
incorporated in the Application for Access to Documents, particular regard would need
to be had to both the documents submitted in support of the application as well as the
roles of the interview. It is worthwhile noting that the file management system (IRIS)
contains notes of the relevant interview which may either corroborate or contradict
what transpired at the interview.
An example of both the IRIS notes and the notes of the interview are extracted at
annexure B4 of this paper.
To the extent of any inconsistency between the decision record; IRIS notes and notes of
the interview these enquiries can be particularly fruitful and should be pursued
diligently.
18

That Is Not What Happened...!

It is not unusual for an Applicant to assert that the version of events proffered in the
decision record, IRIS and the record of the interview does not correctly reflect what
transpired at the interview.
Exercise 2
Obtain a copy of the decision record; IRIS and the notes of the interview. Ask your client
if he disagrees with the summary of the relevant facts set out in the decision record. If
so; what is the extent of that disagreement? Also, have the client read the notes of the
interview and ask the client whether they agree or disagree with the version of events
proffered by the Department of Border Protection (DIBP).

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?

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Preparing for the Hearing

Once you feel that you have a firm grasp of the legal issues and relevant facts; attempt to
link the known facts and evidence to the documentation on the case file.
Any known evidentiary deficiencies must be addressed by the giving of oral or written
evidence including the third party documents which corroborate the case theory
underpinning the application for review.
Here is a suggested timetable of activities necessary to support your case and articulate
your case theory:
1. Obtain a copy of the client file
2. Review the evidence
3. Develop your case theory
4. Prepare a written outline of submissions as to the relevant law and facts
referencing the available evidence (Sample at annexure D).
5. Identify the relevant Tribunal member and obtain their biographical details by
googling the Tribunal members name and the name of the Tribunal. A sample
of such enquiries constitute annexure E of this paper.
6. Finalise your written submissions pitching the submissions having regard to
the background, disposition and training of the relevant Tribunal member.
7. Prepare your witnesses before the hearing. Brief them as to what the issues are:
what questions are likely to be asked and the mode of answering.

Rules for Witnesses

1. Listen to the question.
2. Understand the question.
3. Answer that question.
4. If you do not understand the question say:
I did not understand the question.

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5. If you do not hear the question say:

I did not hear the question.
6. If you do not know the answer to the question say:
I do not know.
7. Do not make up an answer to a question.
8. Do not say anything that is untrue.

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.

The Conduct of the Hearing

1. Always present to the Tribunal as being helpful, professional and courteous.
2. Make sure you know your own case and that you have prepared your witnesses.

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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.)

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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

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Index to Annexure

Annexure A

A1: Form MRT 01

A2: Appointment of Representative
A3: Application for Access to Documents

Annexure B

B1: Example of Onshore Decision Record

B2: Example of Offshore (Overseas) Decision Record
B3: IRIS and Interview Notes

Annexure C

C: Sreys Case

Annexure D

D: Sample Submission

Annexure E

E: MRT Tribunal Member appointment dates, status and

biographical details

Annexure F

F: MRT Jurisdictional Reference Tables.

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