Under s48B, s351, s417 and s501J of the Migration Act 1958 (the Act), The Minister can substitute for a decision of a review tribunal a decision that is more favourable to a person, if the Minister think it is in the public interest to do so. It is generally called Ministerial Intervention power for an Australian Migration Visa.
What is and what is not in the public interest is for the Minister to determine.
Minister’s power to intervene is personal and non-compellable. This means that although the powers are available to the Minister under the Act, the Minister do not have a duty to use or consider using any of the powers.
The Minister can only use these powers where there is an appropriate existing decision in the case from:
- the Administrative Appeals Tribunal (Migration and Refugee Division)
- the Administrative Appeals Tribunal (General Division) for protection visa refusals or cancellations on character grounds
- the former Migration Review Tribunal
- the former Refugee Review Tribunal
- the former Immigration Review Tribunal or Migration Internal Review Office.
Where appropriate, requests for the Ministerial intervention will be referred to the Assistant Minister.
You should not assume that your request 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.
Ministerial intervention principles – This is what the Minister Say!
The following principles apply to the intervention powers covered by these guidelines:
- it is my general expectation that a person who has not been granted a visa through the statutory visa process will leave Australia
- consideration of a case for intervention is at my discretion and is not an extension of the visa process
- if a person has a visa pathway available to them, including an offshore pathway, it is generally not appropriate for me to intervene
- I will view a case referred to me unfavourably if the person has not complied with the conditions of a previous visa, has provided false or misleading information to the Department or any other relevant authority (such as an assessing authority) or has been an unlawful non-citizen
- I expect a person requesting my intervention to:
- be a lawful non-citizen if they are in the community when they make their intervention request and remain a lawful non-citizen until that request is finalised
- cooperate in ensuring that their travel documents are available and valid, and
- continue to engage with the Department and assist with any enquiries, particularly those concerning their identity
- I expect a person requesting my intervention to continue to make arrangements to leave Australia while their request is being progressed. If the request is unsuccessful, I expect any person who is the subject of the request to leave Australia.
Unique or exceptional circumstances
Cases that have one or more unique or exceptional circumstances, such as those described below, may be referred to me for possible consideration of the use of my intervention powers:
- 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 the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person
- exceptional economic, scientific, cultural or other benefit would result from the person 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 a particular case
- the Department has determined that the person cannot be returned to their country/countries of citizenship or usual residence due to circumstances outside the person’s control
- a person’s particular circumstances or personal characteristics provide a sound basis for believing that there is a significant threat to their personal security, human rights or human dignity if they return to their country of origin, but the mistreatment does not meet the criteria for the grant of any type of protection visa. For example, systematic harassment or denial of basic rights available to others in their country, or the person has experienced torture or trauma in their country of origin and is likely to experience further trauma if returned to that country
- the person is excluded from the grant of a protection visa or has had a protection visa cancelled or refused on character grounds and their circumstances have been assessed as engaging Australia’s non-refoulement obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm as provided in section 36(2A)of the Act.
By Dinesh Weerakkody LLB; PDLP
Dlegal – Barristers & Solicitors and Migration Agent
Sources:
Migration Act 1958 and DHA information.