Ministerial Intervention For a More Favorable Decision

For those who seek Ministerial Intervention for a more favorable decision regarding their Visa applications that has been refused by the Department of Home Affairs.

Ministerial Intervention For a More Favorable Decision

Introduction

Under Sections 351, 415 and 501J of the 'Migration Act 1958', the Minister has power 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.

Provisions for Ministerial Intervention

Section 351: Allows the minister to substitute a decision of the tribunal with a more favourable decision. The more favourable decision does not have to be one that the tribunal had the power to make.
Section 415: Allows the minister to substitute the tribunal’s decision with a more favourable decision where the minister considers this is in the public interest.A non-citizen can request the minister to consider exercising this power. However, when a request is made, the minister does not have a duty to consider exercising this power.
Section 501J: Where the AAT has refused a person a Protection Visa, the minister may set aside that decision and substitute it with a positive decision where they consider that doing so is in the public interest. It is not a requirement that the more favourable decision must be a decision that the AAT had the power to make. When exercising their discretionary powers, the minister must provide reasons for their determination to both houses of parliament.

Minister's Guidelines

It is not necessary 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.

The Minister’s guidelines describe the types of cases that might be referred for the Minister’s consideration. Ministerial staff assess all requests against these guidelines, and requests that do not meet the guidelines will be finalised by us. 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 us 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. If your request is unsuccessful, and there are no other immigration matters ongoing, then you are expected to leave Australia as soon as possible.

Unique or Exceptional Circumstances for Ministerial Intervention

Introduction

The Minister has issued guidelines on the type of unique and exceptional circumstances that could be brought to the Minister's attention. Next section describes circumstances inappropriate to consider for Ministerial Intervention.

Types of Unique or Exceptional 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.

- 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.

Inappropriate to Consider for Ministerial Intervention

Introduction

If your case does 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, your application will be finalised without referral to the Minister and you or your authorised representative will be advised of it 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; and 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..

Miniterial Intervention Application Document Checklist

Documents to support your claims of strong compassionate circumstances
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.
Documents to support claims that you would suffer serious, ongoing and irreversible harm and continuing hardship
Evidence of your age (birth certificate or passport); and 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.
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, and Business or financial statements.
Documents to demonstrate circumstances not anticipated by relevant legislation
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.
Documents supporting your claim that You cannot be returned to your country
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.