Collectively referred to as Ministerial Intervention, a number of powers exist at Sections 351, 417 and 501J of the Migration Act 1958 (Cth), whereby the Minister can substitute the decision of a review tribunal with a decision that is more favourable where the Minister thinks it is in the public interest to do so.

The Minister can only use these powers following a decision from the Migration and Refugee Division or the General Division of the Administrative Appeals Tribunal.

The Minister’s power to intervene is personal and non-compellable meaning that although the power is available, the Minister does not have a duty to use or consider using the power. The discretionary power must be exercised by the minister personally and cannot be delegated.

The Minister is not restricted in the type of substantive visa that may be granted using the powers and does not have to be satisfied that the relevant criteria in the Migration Regulations 1994 (Cth) are satisfied. Only a limited number of the total requests received by the Department of Home Affairs’ Ministerial Intervention Unit are successful in obtaining Ministerial Intervention.

Ministerial Guidelines

The Ministerial Guidelines contain procedural advice on the exercise of the Minister’s power, including the criteria for cases that may be referred to the Minister for consideration, the information required to be submitted and who may make requests to the Minister for exercise of the intervention power. The Guidelines do not bind the Minister nor is there a requirement for consideration of any of the factors published in assessment of an application for Ministerial Intervention.

The Guidelines indicate the types of matters that may be referred to the Minister are those cases with unique or exceptional circumstances, including those which may be described as follows:

• 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.
• 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.

The Ministerial Guidelines make clear that the Minister will not consider cases that contradict the public interest and include; where a person has not complied with visa conditions, where the a visa applicant has not met character requirements, where an applicant has not satisfied the public interest criteria relating to provision of misleading information, where an applicant has been identified by ASIO as a risk to national security, when a partner visa application pathway is available or where a person is either subject to a no further stay condition or is barred from applying onshore for a Partner visa.

Lex Lawyers can provide representation for Ministerial Intervention requests following a decision by the Administrative Appeals Tribunal. Lex Lawyers can provide accurate and understandable advice on prospects for success and specific advice in respect to procedural matters for making a request to the Ministerial Intervention Unit.

Immigration Law Services