dn21 - winning at the mrt with annexures (1)

8/17/2019 DN21 - Winning at the MRT With Annexures (1)

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Winning at

the MRT(Core CPD Item DN21)

Distance Learning CPD

Legal Training Australia

ABN 81 151 154 639


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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 (RMA’s) 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 “fairuse” and is limited for the purposes of conveying education outcomes to RMA’s. 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 paperother than in the context of CPD activities on the LTA website.

Currency

The information contained in this module is current as at January 2014.


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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 RMA’s 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.


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Index

Topic Page Number

Background 5

Table A- workload trends 5

Role of the RMA & Prospects 5

Cases decided and set aside rates

and outcomes for review

6

Introduction 7

Judicial review and outcomes 7

Current trends 8

Getting the basics right! 8

The golden rule 8

The postal rule 9

Exceptions to the golden rule 13

Understanding the case 13

First things first 14

Exercise 14

Dotting the I’s and crossing the t’s 14

That is not what happened 15

Exercise 15

More questions 15

Preparing for the hearing 16Rules for the witness 17

Show me more! 18

At the hearing 18

The conduct of the hearing 18

Index to annexures 20


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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

2009-10 2008-09 2007-08 %change 2008-09 to 2009-10Migration Review

Tribunal

Visa refusal-Bridging 139 139 177 -

Visa refusal- Visitor 690 562 389 +23%

Visa refusal-Student 1937 691 781 +180%

Visa refusal-Temporary

business

567 684 626 -17%

Visa refusal-permanent

business

285 314 182 -9%

Visa refusal-Skilled 1182 1889 933 -37%

Visa refusal- partner 1157 1372 1474 -16%

Visa refusal-family 739 536 537 +38

Cancellation-student 875 501 653 +75%

Sponsor approval refusal 187 209 113 -11%

Other 574 525 460 +9%

Total MRT 8332 7422 6235 +12%


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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 – Visitor

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 –

Permanentbusiness

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 approvalrefusal

696 516 513 +35%

Other 467 380 436 +23%

Total MRT 16,164 14,088 10,315 +15%

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 increasesin temporary work, family, permanent business and partner lodgements.

Figure 1 provides an overview of MRT lodgements by case category.


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FIGURE 1 – MRT LODGEMENTS BY CASE CATEGORY

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

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

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

Permanent business....................................7%

Family..................................................................7%

Temporary work.............................................6%

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

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

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

Bridging.............................................................2%

Other..................................................................3%

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.


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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 2008-09 2007-08

Case

s

% Set

aside

Cases % Set

aside

Cases % Set

aside

Migration Review Tribunal

Visa Refusal – Bridging 151 15% 133 12% 169 25%

Visa Refusal – Visitor 679 58% 637 59% 294 48%

Visa Refusal – Student 738 42% 564 37% 459 49%Visa Refusal –

Temporary Business

571 30% 560 37% 294 37%

Visa Refusal –

Permanent Business

278 46% 165 42% 131 47%

Visa Refusal – skilled 1895 42% 958 51% 577 53%

Visa Refusal – Partner 1268 66% 1221 67% 1468 62%

Visa Refusal – Family 546 42% 557 45% 517 43%

Cancellation – Student 811 41% 412 40% 853 51%

Sponsor Approval

Refusal

161 21% 96 27% 55 36%

Other 482 38% 464 35% 402 32%

Total MRT 7580 45% 5767 48% 5219 50%

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


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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 Tribunal ’s 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 2011-12 2010-11

Cases % set-aside Cases % set-aside Cases % set-aside

MRT

Visa refusal

– Bridging

340 15% 264 12% 267 12%

Visa refusal– Visitor

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%

(See page 114 of Annual report 2012/13)


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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

2009-10 2008-09 2007-08

Migration Review Tribunal

Primary decision set aside or remitted 3429 2783 2611

Primary decision affirmed 2700 2005 1875

Application withdrawn by applicant 796 495 369

No jurisdiction to review 655 484 364

Total 7580 5767 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.


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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 RegisteredMigration 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 MRT MRT RRT RRT RRT

2009-

10

2008-

09

2007-

08

2009-

10

2008-

09

2007-

08

Tribunal decision 7580 5767 5217 2157 2462 2318Court applications 242 243 244 508 847 1090

% of tribunal decisions 3.2% 4.4% 4.7% 23.6% 34.4% 47.0%

Applications resolved 165 236 241 299 817 1090

-decision upheld or otherwise

resolved

109 162 150 268 702 921

-set aside by consent or judgement 56 74 91 31 115 169

-set aside as % of judicial

applications resolved

33.9% 31.6% 37.8% 10.4% 14.1% 15.5%

-set aside decisions as % of

MRT/RRT decisions made

0.7% 1.3% 1.7% 1.4% 4.7% 7.3%


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Table 5 – Judicial Review Application and Outcomes

MRT RRT

2012-13 2011-12 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 orotherwise

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


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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.


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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 atthe 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 theend 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 MRT-

reviewable 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

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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 isreceived.

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

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(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 inquestion 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).


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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 basis on

decision

Onshore

of offshore

Postal

period

Specified lodgement period

309/100 Spouse Offshore 21 days 70 days

Fiancé Offshore 21 days 70 days

ENS (offshore) Offshore 21 days 70 days

457 (applicant

offshore)

Offshore 21 days 70 days

820/801 spouse Onshore 7 days 21 days

Sec 116 visa

cancellation

Onshore 7 days* 7 days

*No postal rule if emailed or hand delivered

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.


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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 i’s and crossing the t’s

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 needto 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.


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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 whatanswers 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 member’s 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 toprove. 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.

http://www.mrt-rrt.gov.au/http://www.mrt-rrt.gov.au/http://www.mrt-rrt.gov.au/http://www.austlii.edu.au/http://www.austlii.edu.au/http://www.austlii.edu.au/http://www.austlii.edu.au/http://www.mrt-rrt.gov.au/


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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 MRTwas 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 butleaves the door open to other strategic options.

C.H. Levingston

Sydney


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Index to Annexure

Annexure AA

1

: Form MRT 01A2: 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: Srey’s Case

Annexure D D: Sample Submission

Annexure E

Annexure F

E: MRT – Tribunal Member appointment dates, status and

biographical details

F: MRT Jurisdictional Reference Tables.


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