The Migration Act 1958 gives the Minister discretion to intervene in your visa application and grant you the visa. Usually, the Minister only intervenes if it is in the public interest. The Act does not give any guidelines on what is in the public interest; it is for the Minister to decide. You can apply for Minister Intervention if AAT has refused your decision. The Act gives Minister the ultimate power to replace a decision made by the Tribunal. The Minister does not have the legal obligation to intervene or have a look at your case. Most Minister Intervention applications are not even referred to the Minister. The Minister has outlined the guidelines to decide the Minister’s Intervention applications. If your application does not follow the guidelines, then it will be rejected by the department itself without being referred to the Minister. Therefore, it is imperative that your application follow the guidelines to maximize your chances of success. Ineffective Requests When you apply for Ministerial intervention, it is not part of the normal visa process. Minister is not committed to look into your case or intervene in it. The department will inform you in writing of the outcome of the request. If the Minister declines to intervene in your case and if you do not hold any other visas, then you are expected to leave as soon as possible. You must contact your nearest immigration office if you cannot depart rapidly. If you still stay in Australia without a valid reason, there is a risk of you being detained and removed if located by the department. You may also have to pay the debt to the Government of Australia for the cost of removal.
Non Intervention by the ministerBelow described circumstances are inappropriate for the Minister and will be finalized by the Department itself.
- the request is made by a person who is not the subject of the request or their allowed 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 does not satisfy a fraud-related Public Interest Criterion for the grant of a visa
- the person’s visa has been canceled 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 Secret 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
If you leave AustraliaIf you choose to leave Australia without a return visa while your request for ministerial intervention is still in processing, we may finalise your request without further processing.
Relevant Decision can lead to minister interventionThe Minister can only intervene and exercise his or her discretionary powers when there is a relevant existing decision. This may be a decision of the AAT, the former Refugee Review Tribunal (RRT), the former Migration Review Tribunal (MRT) or the former Immigration Review Tribunal or Migration Internal Review Office. Intervention by the Minister The Minister is most likely to exercise intervention where:
- There are strong compassionate circumstances that if ignored can lead to serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit.
- There are compassionate circumstances regarding a person’s ill health that if ignored would cause irreversible harm and continuing hardship.
- Circumstances not expected by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair results in your case.
- If a person’s stay in Australia can give Exceptional economic, scientific, cultural or any other benefit.
- The person is at risk of mistreatment is returned to their country of origin, despite not meeting the criteria for refugee status.
- The person has been refused a Protection Visa oncharacter grounds and is at risk of being harmed if returned to their country of origin.
Making a request for ministerial interventionYou can make a request to the minister yourself or a lawyer can do it on your behalf. It is necessary for a person to hold a current visa while applying process applying for ministerial intervention. The person must continue to make arrangements to depart the country when the visa expires, despite awaiting a decision from the minister. Normally, you can request the Minister when received a decision from the Administrative Appeals Tribunal formerly known as the MRT. However, you cannot apply for the Ministerial Intervention, if following circumstances applies:
- If there is no decision made by the review Tribunal
- A Minister has previously intervened in your case and has granted you the visa before
- The Tribunal decided that it does not have the jurisdiction to review the decision
- Review application to the Tribunal was made outside the prescribed time limits
- if your request is not accepted or
- it does not follow the guidelines or
- the Minister believes that it is not in the public interest,