Navigating the Australian immigration system can be a challenging experience, especially when visa applications are refused or cancelled. For some individuals, the final hope lies in Ministerial Intervention – a unique mechanism that empowers the Minister to intervene in cases where there are compelling and compassionate circumstances that warrant a departure from the standard visa and immigration rules.
The Stages Leading to Ministerial Intervention
Before reaching the stage of Ministerial Intervention, an applicant must typically go through several stages within the immigration system:
- Visa application: initially, an individual submits a visa application to the Department of Home Affairs (the Department).
- Appeal: if the visa application is refused, or if there is a notification to cancel a visa – the individual may be able to apply for a review of the decision with a merits review tribunal. Normally, this will be the Administrative Review Tribunal (ART). For fast track applicants in a protection visa matter, the appeal may be referred to the Immigration Assessment Authority (IAA).
- Court: should the appeal to the ART or IAA be unsuccessful, the next step could involve seeking judicial review in the courts.
If unsuccessful at point (2), or at point (3), an individual may consider and obtain advice on a Ministerial Intervention application.
What is Ministerial Intervention?
Ministerial intervention is an application requesting the Minister to intervene in an applicant’s immigration matter. Under the Migration Act 1958 (Cth) (the Migration Act), the Minister has prescribed powers that authorises the Minister to replace a decision of a merits review tribunal (such as the ART or IAA). The process aims to address cases where the application of immigration law may lead to unintended consequences such as humanitarian concerns, unique circumstances, or other compelling reasons. Ministerial intervention allows the Minister to exercise discretion and provide relief on a case-by-case basis.
It is a last resort option for an immigration matter, and an applicant should only consider applying if all their options for review are exhausted.
When can the Minister intervene?
The Minister can intervene in immigration matters where they consider that it is in the Public Interest to do.
There is no legislative framework around what constitutes the “public interest”, but broadly the Minister may intervene if doing so aligns with the broader interests of the Australian public, such as in cases where the individual has made significant contributions to the community or economy, or where there are compassionate grounds which might include situations where individuals face undue hardship, extreme health issues, or other exceptional circumstances.
It is important to note that the Minister’s decision to intervene is entirely discretionary, and the Minister is under no obligation to act.
Unique or Exceptional Circumstances
The Minister provides guidelines on unique and exceptional circumstances that may be appropriate for Ministerial Intervention, this may include:
- 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.
- The applicant cannot be returned to their country/countries of citizenship or usual residence due to circumstances outside their control.
Circumstances Inappropriate for Ministerial Intervention
The Minister provides guidelines as to which types of cases should be referred (or are inappropriate to refer) for their consideration. A list of matters that the Minster considers inappropriate include:
- 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.
If an applicant does not have one or more of the above circumstances, the request may be closed.
The Process of Seeking Ministerial Intervention
To be able to seek Ministerial Intervention, an individual must be:
- Lawfully present in Australia;
- Have received a decision at a merits review tribunal;
- Have grounds and seek Ministerial Intervention.
The process of applying for Ministerial Intervention involves several steps:
- Application: the applicant, or someone acting on their behalf, submits a request for Ministerial Intervention to the Minister’s Office. The application should include a detailed explanation of the circumstances warranting intervention.
- Assessment: the Minister’s Office reviews the application and assesses whether the case meets the grounds for intervention. This assessment considers the individual’s personal circumstances, their potential contribution to Australia, and the overall public interest.
- Recommendations: in some cases, the Department may provide recommendations to the Minister based on their expertise and assessment of the case.
- Decision: the Minister makes the final decision whether to intervene or not. This decision is typically based on the information provided in the application, any recommendations, and the Minister’s own discretion.
What are the Minister’s powers to intervene?
The Minister’s power to intervene is derived from specific sections of the Migration Act, including:
- Section 351: allows the Minister to substitute a more favourable decision if it is in the public interest.
- Section 417: this section allows for intervention in protection visa matters (excluding fast-track applicants) on public interest grounds.
- Section 501: in certain cases, the Minister can lift a bar (such as under Section 46A or Section 48B) that prevents an individual from applying for a visa.
- Section 195A: this section relates specifically to immigration detention and allows the Minister to grant a visa to a person in detention if it is in the public interest.
- Section 197AB: this section relates specifically to immigration detention and allows the Minister to authorise an individual to reside at a specified place in the community instead of being held in immigration detention.
- Section 198E: the Minister can exempt a person from being transferred to offshore processing.
The Minister also has powers to intervene on matters when there is a ‘bar lift’ (where an individual is prevented from applying for specific types of visas under section 48 of the Migration Act).
Prospects
The Minister has no obligation to consider a Ministerial Intervention request or to make an intervention. As such, Ministerial intervention requests are often unsuccessful. Cases that are well-documented and clearly demonstrate the grounds for the Minister to intervene have a higher chance of success – however, success cannot be guaranteed even in strong cases.
Decision and outcomes
The processing time for a Ministerial Intervention request will depend on the circumstances of the case, though, it normally takes 1-2 years to process.
If successful, the Minister will make a decision favourable to the individual that is within the public interest. What this looks like will depend on a case-by-case basis.
If a Ministerial Intervention request is unsuccessful, the individual is expected to leave Australia as soon as possible and before their visa expires. If a person fails to leave Australia, they will become unlawful and at risk of deportation or immigration detention.
Reapplying for Ministerial Intervention
If an individual has previously applied for Ministerial Intervention, there are limited circumstances that allow for a repeat application, including when:
- The Department is satisfied there has been a significant change in circumstances since the previous request;
- This significant change must raise new, substantive issues that were previously not provided or considered; and
- The new, substantiative issues must be assessed as ‘unique or exceptional circumstances’.
Although it is possible to make another Ministerial Intervention request, the Minister will only consider a repeat request in very limited circumstances and the threshold is high.
Conclusion
Applying for Ministerial Intervention is a difficult process and a last resort option for people who have exhausted all other methods of review.
If you need advice or assistance in seeking Ministerial Intervention or have any other immigration related queries, get in touch with our experienced team. Contact us by email at [email protected] or by phone at +61 3 9016 0484.
This document does not constitute legal advice or create an attorney-client relationship. Please consult an immigration professional for up-to-date information.
