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Ministerial Intervention

If your visa application has been refused by the Department and the refusal has been affirmed by the AAT, you may either consider judicial review or ministerial intervention. For many applicants, judicial review is not a viable option due to the absence of jurisdictional error in the Tribunal’s decision. You may consider requesting the Minister to personally exercise his or her general power to intervene in your matter. This is called ministerial intervention.

The Minister is not bound by law to consider your case, and in fact only a nominal number of applications are considered. Therefore, it is vital that you make your case as persuasive as possible to compel the Minister to consider and grant the visa. In the process, it is strongly advisable that you engage ministerial intervention specialists to prepare your request.

 

Ministerial Intervention to Grant Visas

Q: What is Ministerial Intervention in Australian Migration?

Ministerial intervention is the statutory power under the Migration Act 1958 whereby the Minister may exercise discretion to overturn decisions of the Department and the Tribunal, and grant visas. The Minister may effectively substitute any earlier decision with one that is more favourable to the applicant. In doing so, the Minister usually invokes sections 351, 417 or 501J of the Act.

The Minister is under no obligation to consider whether to intervene in a matter put before him or her. This notion of absolute discretion held by the Minister is well established in law. For example, in Plaintiff S10-2011 v Minister for Immigration and Citizenship [2012] HCA 31, the High Court confirmed that the relevant statutory provisions “operate outside the regular statutory process for determination of visa applications” and that rules of procedural fairness are not applicable to applications under sections 351 and 417 of the Act.

 

Q: How do I apply for Ministerial Intervention?

It has been the intention of the Department to keep the procedures accessible and informal: Senate Select Committee, Parliament of Australia, Ministerial Discretion in Migration Matters (2004). The applications can be submitted by:

  •  The Tribunal, where the presiding Member deems it appropriate to refer the matter to the Minister.
  •  The Applicant in writing via post or email. You must clearly write your personal identifies, including your full name, date of birth and reference numbers for your matter at the Department and the Tribunal, and provide your submission with evidence.

Should you elect to submit your matter for ministerial intervention, you may do so via post or email of the following details:

  • Email: minister@homeaffairs.gov.au
  • Postal Address: Minister for Home Affairs, Minister for Immigration, Citizenship, Migrant and Multicultural Affairs, PO Box 6022, Parliament House, Canberra ACT 2600

 

Q: Can I request for Ministerial Intervention multiple times?

You are not barred from making repeat requests for ministerial intervention. Nevertheless, you do not derive any benefits from doing so unless your circumstances have changed significantly since the last request. It is highly advisable that you submit the best possible application the first time you apply.

 

Q: Do I get a Bridging Visa pending my Ministerial Intervention request?

You can manually lodge an application for a bridging visa for the period you are waiting for the intervention request. The grant is not guaranteed, and especially more so if it is not your first request.

If the Department decides to issue a bridging visa for the interim period, it would likely be a bridging visa E. The long term migration consequences of having been issued a BVE can be extremely prejudicial. The Department expects that you maintain your lawful status only for the requisite period and to have departed Australia once the matter had been finalized.

 

Q: Can I apply for review of a decision by the Minister?

There are no statutory avenues to challenge ministerial intervention decisions. Making repeat applications in the same matter would likely be fruitless in almost all circumstances. Therefore, an adverse outcome by the Minister marks the practical exhaustion of available avenues for aspiring applicants to remain in Australia. At this point, arrangements must be made to depart from Australia in a timely manner.

If the Minister intervenes in your matter and grants you a visa which does not comport with what you had requested, the Minister will not entertain an additional request in the same subject matter. This position is clearly specified under the ministerial directions in the policy directives.

 

Q: How to write good submissions for Ministerial Intervention?

The Minister is guided to exercise his or her discretion when it is appropriate and in the public interest to do so. More precise guidance is found in the policy directives with the examples being:

  • 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.
  • Compassionate circumstances regarding the age, health or psychological state of the person, which, if not recognised, would result in ongoing and irreversible harm or hardship.
  • Whether exceptional benefit would result from the applicant remaining in Australia.
  • Relevant circumstances had not been anticipated by the legislation or where the legislation would result in unintended consequences or unfair or unreasonable results in the case.
  • The applicant cannot be returned to their usual country of residence due to factors beyond their control.
  • Evidence that the applicant will be subject to human rights abuses if returned to their home country.
  • The applicant has not been granted a protection visa on character grounds but could be considered under Australia’s non-refoulement obligations.
  • Australia’s obligations under an international covenant or treaty.
  • Level of integration of the applicant into Australian society.
  • Any character or credibility concerns applicable to the applicant.

We advise that good submission addresses the above issues as a bare minimum. However, these circumstantial examples serve merely as guidance and do not bind the Minister to exercise his or her discretion. This means even despite the good submission the Minister remains completely free to decide as he or she wishes.

 

Q: Who do I consult with for Ministerial Intervention?

If you are considering ministerial intervention, your matter is certainly highly complex. It is critical that you obtain independent legal advice at the earliest opportunity. At Visa Plan, Our team of expert migration lawyers are happy to speak with you for the best possible outcomes.

 

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