Practice Point - Always Engineer A Situation Where One Applies For This Visa Onshore


If possible one should always engineer a situation so that the permanent residence skilled visas are applied for on-shore. This is necessary in order to maintain appeal rights.

The limitation on appeals on visa applications lodged offshore is contained in s 347 which reads:

(3A)     If the primary decision was covered by s 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.

This is because s 338(7A), states:

A decision to refuse to grant a non-citizen a permanent visa is an MRT-reviewable decision if:

(a)      the non-citizen made the application for the visa at a time when the non-citizen was outside the migration zone; and

(b)      the visa is a visa that could be granted while the non-citizen is either in or outside the migration zone.

Managing to be in Australia at time of decision could be very difficult to manage.

In Chopra 1212601 [2013] MRTA 3229 (6 December 2013) the MRT dealt with a ‘stale’ skill assessment by the applicant simply getting another one at the time of hearing.

Barbara Davidson