If your visa application has been refused by the Department of Home Affairs and the refusal has been affirmed by the Administrative Appeals Tribunal, you may either consider judicial review or ministerial intervention. For many applicants, judicial review is not a viable option by the reason of jurisdictional errors being absent in the Tribunal’s decision.
Under the Migration Act 1958, the Minister has the overarching powers to overturn decisions of the Tribunal and grant visas. Nevertheless, this discretion is not exercised lightly, with the vast majority of the applications failing well before they are personally considered by the Minister. Even if reviewed by the Minister, the intervention will only occur if the applicants establish exceptional circumstances.
What is Ministerial Intervention?
Ministerial intervention is the statutory power that may be exercised by the Minister under sections 351, 417 or 501J of the Act. These powers allow the Minister to substitute a decision of the Tribunal with one that is more favourable to the applicant. In these sections, the Minister must consider whether it is in the “public interest” to intervene in a matter.
Exercise of this discretion is non-compellable. The Minister is under no duty to consider whether to intervene in a matter put before him or her. Nevertheless, the notion of absolute discretion held by the Minister is well established in law. In Plaintiff S10-2011 v Minister for Immigration and Citizenship  HCA 31, the High Court held that the provisions relating to ministerial intervention “operate outside the regular statutory process for determination of visa applications” and that rules of procedural fairness are not applicable to applications under sections 351 and 417 of the Act.
When is Ministerial Intervention Available?
Sections 351, 417 and 501J of the Act in effect limits the Minister to intervene only in matters where the Tribunal has made a decision.
In the event of ministerial intervention having been denied, the Department’s policy and procedures manual prevents repeating requests for the intervention. The only exception to this is when your circumstances have changed significantly since the last request.
When will the Minister Exercise His or Her Discretion?
The Act implicitly guides the Minister to exercise his or her discretion when it is “in the public interest” to do so. Further guidance can be found in the policy directives. In these, the Minister has identified and stated circumstances in which intervention may be appropriate:
- 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.
- Compassionate circumstances regarding the age, health or psychological state of the person, which, if not recognised, would result in ongoing and irreversible harm or hardship.
- Where exceptional benefit would result from the applicant remaining in Australia.
The circumstances of the application were not anticipated by the legislation or where the legislation would result in unintended consequences or unfair or unreasonable results in the case.
- The applicant cannot be returned to their usual country of residence due to factors beyond their control.
- The applicant’s circumstances or characteristics provide basis for a belief that they will be subject to human rights abuses if returned to their home country.
- The applicant has not been granted a protection visa on character grounds but could be considered under Australia’s non-refoulement obligations.
A range of additional factors may also be relevant to the Minister’s consideration, including:
- Australia’s obligations under an international covenant or treaty;
- Level of integration of the applicant into Australian society;
- Any character or credibility concerns applicable to the applicant.
Ultimately these circumstantial examples serve merely as a guidance and do not bind the Minister to exercise his or her discretion. Rather, the Minister remains free to consider requests for intervention in whichever matter and manner he or she so chooses.
How do I Apply for Ministerial Intervention?
It has been the intention of the Department to keep the procedures accessible and informal (Senate Select Committee, Parliament of Australia, Ministerial Discretion in Migration Matters (2004)). Most applications are submitted via email to the Department. Alternatively, the Tribunal may refer matters to the Minister where the presiding Member deems it appropriate to do so. You may also request at your hearing at the Tribunal for the matter to be referred. In rare instances, the Minister may intervene where no request has been made.
What if my Application Fails?
Ministerial intervention decisions are generally unable to be challenged. Making additional applications for intervention is unfeasible in most circumstances as delegates of the Minister are instructed by their policy directives to dismiss repeated applications.
Refusal by the Minister marks the exhaustion of available avenues for aspiring applicants to remain in Australia. If you cannot access judicial review and have been refused ministerial intervention, there are no remaining viable options available. At this point, arrangements should be made to depart from Australia in a timely manner.
If the Minister intervenes in your matter and grants you a visa which does not comport with what you had requested, the Minister will not entertain an additional request pursuant to the same matter. This position is clearly specified under the ministerial directions found in the policy directives.
Can I Discuss my Options?
If you are seeking legal advice in relation to your visa matter, please call us on +61 3 9958 5854, or email us via firstname.lastname@example.org. If you are considering ministerial intervention, your matter is almost certainly highly complex. It is critical that you obtain independent legal advice at the earliest opportunity. Our team will happily arrange a consultation for you with one of our expert migration solicitors.