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Visa Refusals – The role of the Review Tribunals

Written By Michael Walker
Thu, Nov 6, 2014
Michael Walker

The Tribunals sit independently of the Department of Immigration and Border Protection (DIBP) and have the power to review a visa refusal decision, made by DIBP, with a new ‘set of eyes’. However, you should note, the Tribunals do not have the power to grant a visa, as that power rests solely with DIBP. The Tribunals do have the power to either set aside or remit a refusal decision made by DIBP, with the direction that the relevant visa ought be granted.

We provide advice prior to application for review and can manage the review process on your behalf. This service includes representation at the actual hearing when called. It is critical to make review applications within the prescribed timeframe as outlined on the communication received from DIBP.

Note: The right to have a decision reviewed at the relevant tribunal is removed in event that the application for review is not made within the time limit.

Case Study

Malcolm had been sponsored by his Australian Permanent Resident ‘de facto’ spouse Mary, for a partner visa; sub-class 820.

The couple had been together for almost 16 months and just over 12 months previous to the application being lodged, the couple began living together. On the face of things, it appeared that the Malcolm clearly met the usually required ’12 month’ cohabitation rule.

However, while still on his working holiday visa, Malcolm received news that his father was gravely ill in the UK. As such, Malcolm was left with little alternative, but to return to England and be by the side of his terminally ill father. This saw Mary remain in Australia for a period of 3 months on her own, until the ultimate passing of Malcolm’s father, which saw him make the arrangements for the funeral, ensure that his father’s estate was in order and that his mother had the company of her son while grieving.

Immediately upon his return to Australia, Malcolm lodged his 820; partner visa application, under Mary’s sponsorship. Shortly after lodgment, the DIBP case officer wrote to Malcolm to advise that Immigration Department travel records indicated that Malcolm had been out of Australia for 3 months and therefore he could not have been living with his sponsor Mary, for the usually required period of 12 months cohabitation. The case officer’s letter went on to say that unless compelling and compassionate circumstances existed, which caused the couple to be apart, albeit not on a permanent basis, then the partner visa application may be refused.

Malcolm responded to the case officer’s letter in writing, pointing out that his absence from Australia was due to the terminal illness suffered by his late father and the need for Malcolm to make the funeral arrangements, following his father’s passing.

Despite this, the case officer did not consider that this made out grounds for compelling and compassionate circumstances, as 3 months was a long time to be absent from his sponsoring partner, Mary. As harsh as the decision was, it was within the discretionary powers of the case officer to make such a decision.

Accordingly, Malcolm and Mary sought the advice of TSS Immigration. Following consultation with one of our registered Migration Agents, an application was lodged with the Migration Review Tribunal (MRT), within the statutory deadline.

TSS Immigration provided submissions to the Tribunal, which comprehensively made out the grounds for compelling and compassionate circumstances. Further, TSS Immigration directed Malcolm to seek to obtain a report from his late father’s consulting physician, which also addressed the extent of the grieving suffered by his mother, his father’s death certificate, invoices from the funeral director who conducted the funeral service for Malcolm’s father and a letter from the funeral director which confirmed that Malcolm was the principle contact for his father’s funeral arrangements.

While the Tribunal decided that a hearing was necessary to finalise this matter, the Tribunal Member held a very brief hearing session, simply designed to confirm the facts. The Tribunal noted that in the face of the evidence provided in support of the review application, the DIBP case officer’s refusal was extremely harsh and accordingly, the decision was ‘set aside’ with the direction that the visa ought be granted by DIBP.

Malcolm was granted his partner visa and today is a Citizen of Australia.

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