Ministerial intervention – Australian immigration law

I receive many enquiries from migration agents and lawyers seeking assistance with Ministerial intervention applications for their clients.

What is a Ministerial intervention?

When your visa has been refused by the Administrative Appeals Tribunal (AAT) there is provision in the Migration Act 1958 (Act) for the Minister to personally intervene and substitute the decision of the AAT with a more favourable decision in favour of you if the Minister believes it is in the public interest to do so.

Section 48B, 351 and 417 of the Act gives the Minister the power to substitute a more favourable decision in relation to a decision of the AAT regarding the granting of a visa to enter Australia or an application for a refugee protection visa.

A Minister when considering whether to exercise their powers is not bound by the rules, regulations and specific criteria prescribed for granting a visa as is the Department of Home Affairs (DoHA) and the AAT.

How does a Minister exercise their power?

The Minister’s guidelines outline the types of matters that he/she will consider.

It is important to note that all applications are assessed against these guidelines which can be found on the Department of Home Affairs website here.

The Minister will consider unique or exceptional circumstances relating to:

  • Strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident
  • Compassionate circumstances regarding your age and/or health and/or psychological state, that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship
  • Exceptional economic, scientific, cultural or other benefit that would result from you being permitted to remain in Australia
  • Circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in your case
  • You cannot be returned to your country/countries of citizenship or usual residence due to circumstances outside your control.

The Minister will not consider the following:

  • the request is made by a person who is not the subject of the request or their authorised representative
  • the person is in the community and:
    • is an unlawful non-citizen and remains an unlawful non-citizen throughout the course of their Ministerial intervention request
    • does not cooperate in ensuring that a valid travel document is available (or has not satisfied the Department that they are stateless)
  • the person has been found not to satisfy a fraud-related Public Interest Criterion for the grant of a visa
  • the person’s visa has been cancelled because they breached their visa conditions
  • the person has had a visa refused because they did not comply with the conditions of a previous visa
  • the person has been refused a visa or has had a visa cancelled on character grounds
  • the Australian Security Intelligence Organisation (ASIO) has determined that the person is a direct or indirect risk to national security through issuing the person with an Adverse Security Assessment (ASA) which remains in effect
  • the person could apply for a Partner visa onshore but is subject to a visa condition 8503 (which specifies that after entering Australia, the person cannot be granted another substantive visa other than a protection visa while they remain in Australia) and a request for a waiver of that condition has not been sought or decided
  • the person may be able to apply for a Partner visa onshore, as prescribed under regulation 2.12(1) of the Migration Regulations 1994 (the Regulations)
  • the person’s application for a Partner visa onshore, as prescribed under regulation 2.12(1) of the Regulations, has been refused and the person is now barred from applying for a Partner visa onshore
  • the person has left Australia
  • the person has an ongoing application for a substantive visa (either onshore or offshore)
    with the Department
  • the person has an ongoing application for merits review of a visa decision with a relevant review tribunal
  • the person has had a remittal or a set aside decision from a relevant review tribunal or a court
  • the person’s review tribunal decision was in relation to the refusal or cancellation of a Bridging visa E
  • the person has an ongoing ministerial intervention request under any of the powers covered by these guidelines
  • a Notice of intention to remove has been issued to the person and the ministerial intervention request has not been initiated by the Department
  • the person holds a Bridging visa E with visa condition 8512 which specifies that the person must leave Australia by a specified date
  • the request raises claims only in relation to Australia’s non refoulement obligations.

It is important to note that a member of the AAT can refer the matter to the Minister for consideration where the applicant clearly does not meet the criteria for a particular visa, but circumstances raise issues that warrant consideration for the Minister to consider intervening.

How can FC Lawyers help?

We have assisted many clients and their advisors with these types of applications.

It is important to obtain support from the community when trying to demonstrate unique, compelling and compassionate circumstances. We will assist you in identifying relevant people in the community such as members of parliament, leaders in your ethnic or spiritual group etc.

This is the last opportunity you will have to remain in Australia, and it is important to understand that very few requests for Ministerial intervention get even considered by the Minister let alone granted.

It is vitally important that you prepare your application for ministerial intervention in detail and get expert assistance if you are going to have a chance of being successful.

Contact our team of immigration lawyers and registered migration agents to discuss your immigration options.