Ministerial Intervention

 

Once your review application at the Tribunal has been unsuccessful you may have an option to request for a Ministerial Intervention.

Ministerial Intervention is minister’s public interest powers under sections 351, 417 and 501J of the Migration Act 1958.  Some types of cases might be referred to the Minister and some types of cases will not be referred to the Minister.

The Minister has powers under the Migration Act 1958 to replace a decision of a merits review tribunal on a person’s case with a decision that is more favourable to that person if the Minister thinks it is in the public interest to do so.

You should not assume that your request for ministerial intervention will be referred to the Minister. The Minister does not have to look at your case and does not have to intervene. Most requests are finalised by the Department in accordance with the Minister’s guidelines. Only a small number of requests are referred to the Minister.

 

When you can make a request

You might be able to make a request for ministerial intervention if you have received a decision by a merits review tribunal. This means the Administrative Appeals Tribunal (AAT) and, for review decisions made before 1 July 2015, the Migration Review Tribunal and the Refugee Review Tribunal.

The Minister’s powers are not available in the following circumstances:

  • There is no review decision by a merits review tribunal
  • A Minister has already intervened to grant a visa
  • A tribunal has found that it does not have jurisdiction to review a decision
  • A tribunal has found that the review application was made outside the time limits
  • A tribunal has returned your case to the Department for further consideration and one of the decision-makers has made a subsequent decision on your case.

The Department will let you know in writing if your request cannot be considered under the Minister’s public interest powers for one of these reasons.

You should not discontinue any application for judicial review on the expectation that the Minister will intervene in your case because only a small number of requests for ministerial intervention are successful.

 

Minister’s guidelines

The Minister’s guidelines describe the types of cases that might be referred for the Minister’s consideration. The Department assess all requests against these guidelines. Requests that do not meet the guidelines will be finalised by the Department. Most requests do not meet the guidelines and are not referred to the Minister.

The Minister has described the types of unique or exceptional circumstances in which a case might be referred for the Minister’s consideration.

The Minister’s guidelines indicate that certain cases that do not meet the guidelines for referral are inappropriate to consider . The Minister has described the circumstances of these cases in the guidelines. The Minister expects the Department to finalise such requests without further processing.

 

Unsuccessful requests

Ministerial intervention is not part of the visa process and very few requests for ministerial intervention are successful. The Minister is not obliged to consider your case or to intervene in your case.

The Department will inform you in writing of the outcome of your request.

If your request is unsuccessful, and if you have no other immigration matters ongoing, you are expected to leave Australia as soon as possible.

If there are reasons why you cannot depart promptly, you should contact your nearest immigration office. If you remain in Australia without a valid visa you risk being detained and removed if you are located by the Department. You may also incur a debt to the Australian Government for the cost of removal.

 

Your visa status is important

You are expected to remain engaged with us and, if you are in Australia, you are expected to continue to make arrangements to depart even if you have made a request for ministerial intervention.

Unless you are in immigration detention, the Minister expects you to hold a current visa throughout the processing of your request for intervention. The Minister does not want to consider requests from people in the community who are unlawful non-citizens. If you are in the community and are an unlawful non-citizen, the Department will finalise your request without further processing.

This means that you must hold a bridging or other visa, or have applied for a Bridging visa C, Bridging visa D or Bridging visa E.

 

An alternative pathway for partners

If you are the partner of an Australian citizen, permanent resident or eligible New Zealand citizen you could be eligible to make an application for a Partner visa even if you have been refused another type of visa while in Australia.

The Minister has indicated that it is inappropriate to consider ministerial intervention requests from person who may be eligible to apply for a Partner visa. The Minister expects the Department to finalise such requests without further processing.

If you have been refused a Partner visa already while in Australia, the Minister has indicated that it is inappropriate to consider your case under the public interest powers. The Minister expects the Department to finalise such requests without further processing.

 

Unique or exceptional circumstances

The Minister has provided guidance on the types of unique and exceptional circumstances that could be brought to the Minister’s attention.

Note: This list is not exhaustive. Providing the documents listed or meeting one of the unique or exceptional circumstances below does not mean that your request will be successful.

Types of unique or exceptional circumstances Examples of the different types of documents that could support claims (the types of documents will vary depending on your circumstances)
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. Documents to support your claims:

  • A statutory declaration outlining how the Australian citizen or permanent resident will suffer ongoing and irreversible harm and continuing hardship, and any reasons why you cannot apply for a visa from outside Australia
  • Medical/specialist reports where relevant to your claims
  • Medical/specialist reports confirming an Australian citizen or permanent resident needs ongoing and continuous care that is not otherwise available and evidence of the efforts you or your family have made to source care from community and other support services
  • Supporting letter from the Australian citizen or permanent resident to whom you are providing support, or from their family members, including evidence of your relationship to them.

 

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. Documents to support claims that you would suffer serious, ongoing and irreversible harm and continuing hardship if you are returned to your country of origin:

  • Evidence of your age (birth certificate or passport)
  • Evidence of your health status (recent medical/specialist reports)
  • A statutory declaration outlining how you will suffer irreparable harm and continuing hardship because of your age or ill-health
  • A letter of support from your family members or from others who are willing to provide you with ongoing care while you are in Australia indicating the nature of the support and care that they are able to provide.

Department will check any claims you make about your home country, including your access to appropriate health care.

Exceptional economic, scientific, cultural or other benefit that would result from you being permitted to remain in Australia. Documents demonstrating why you would be of exceptional benefit to Australia:

  • Awards or industry or peer recognition
  • Letters of support from relevant national bodies, for example professional, industry, cultural or sporting bodies
  • Evidence of your English language standard such as the results of an International English Language Testing System (IELTS) language test
  • Evidence of qualifications, for example degrees or membership of a professional body
  • Evidence that your skills are recognised in Australia by a relevant Australian assessment authority
  • Employer references showing you have been employed in your profession or trade
  • Business or financial statements.

 

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. Documents to demonstrate:

  • That you have circumstances that were not anticipated by the legislation relevant in relation to the visa that you were refused
  • How legislation or policy did not intend that a person in your circumstances would be refused a visa
  • How the refusal of your visa has led to an unfair or unreasonable result.
  • How the refusal of your visa has led to an unfair or unreasonable result.

 

You cannot be returned to your country/countries of citizenship or usual residence due to circumstances outside your control. Documents supporting your claims:

  • Evidence of your identity, such as a birth certificate or a genuine travel document issued in your name
  • Evidence that you cannot get or you have been refused a new travel document by your country of citizenship or the country you usually live in.

 

 

Inappropriate to consider

The Minister has indicated to the Department that cases that do not meet the guidelines for referral and which have the types of circumstances described below are inappropriate for the Minister to consider.  If your case has one or more of these circumstances, the Department will finalise it without referral to the Minister and will advise you in writing:

  • 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.