December 8, 2020
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:
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.
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.
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.
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:
|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:
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:
|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:
|You cannot be returned to your country/countries of citizenship or usual residence due to circumstances outside your control.||Documents supporting your claims:
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: