Ministerial intervention is a process where the Minister for Home Affairs can intervene in your case when they believe it is in the public interest to do so. There are a range of discretionary powers available to the Minister under the Migration Act 1958 (Cth) sections 351, 417 and 501J. These powers allow the Minister to substitute a decision made by the Administrative Appeals Tribunal (AAT) with a decision more favorable to the applicant. This means if you have received a visa refusal and have had that application heard at appeal at the AAT, and if the decision has been affirmed by the AAT, you can then proceed to request ministerial intervention.
Unlike the Department and AAT, the Minister of Immigration is not bound by the rules, regulations and specific criteria prescribed for granting a visa. However, what is and what is not in the public interest is left for the Minister to decide. When you make a ministerial intervention request, it is worth keeping in mind that the Minister is not legally bound to intervene or even consider intervening. Consequentially, many ministerial intervention requests will never be specifically considered by the Minister.
Ministerial Intervention involves the applicant requesting the exercise of powers by the relevant Minister for Immigration. However, applications for ministerial intervention must first be directed through the Ministerial Intervention Office. This office will determine whether your application is appropriate and eligible to be heard or considered by the Minister.
Making the Request for Ministry Intervention
The Department of Home Affairs maintains a weblink for relevant parties to make the request for ministerial intervention. Once you have lodged your request, the Minister for Immigration will then determine whether or not to intervene in your specific case and potentially make a more favourable decision to substitute in for the previous decision of whether to grant the visa. Only a small number of requests for ministerial intervention are ultimately successful – if the Minister does not intervene in your case, there is an expectation that you will depart Australia when your current visa ceases. With this in mind, ministerial intervention is usually the last opportunity for a person to remain in Australia and seek to regularize their visa status.
Settling a request for ministerial intervention requires specialized insight into how the intervention process operates, as well as requiring a detailed submission with persuasive and compelling supporting evidence that establishes compelling, unique or exceptional circumstances that would warrant referral to the Minister for their consideration. Accordingly, ministerial intervention requests are the final stage in your migration process.
Making a Successful Request
Very few ministerial intervention requests are approved – generally you would require exceptionally strong compelling or compassionate circumstances. This blog sets out several key strategies to maximize your chances for making a successful ministerial intervention request:
1. Make The Request Before Your Visa Ceases
If you ever received an unfavourable AAT decision, it is quite likely you are at risk of your associated bridging visa expiring. This is generally a date 35 days after you have been deemed to have received the AAT determination. It is critical that you request ministerial intervention before your bridging visa ceases – upon your bridging visa expiring, you will become unlawful and the Department of Home Affairs will be under an active obligation to detain you.
Additionally, applicants who do not make the request before their bridging visa ceases will find it considerably more difficult to meet the criteria for a bridging visa with working rights after they do make their ministerial intervention request. For individuals who have been unlawful in the community for a long time, they may experience considerable difficulty establishing sufficient compelling and compassionate circumstances.
2. Make The Request Once All Other Processes Have Ceased
Judicial review of an AAT decision is a process that can proceed independently of an application for a ministerial intervention request. It is important to keep in mind that any ministerial intervention request that is made whilst a judicial review process is ongoing is likely to be delayed until after the final judicial review decision has been reached. The Minister does not wish to consider any matter that has a continuing legal matter currently progressing, and so you will need to wait until the legal matter is finally determined before a ministerial intervention request is made.
In the alternate, should the AAT decision be set aside and remitted to the department for visa grant reconsideration, then there would be no further need for a ministerial intervention request. With this in mind, the potential applicant should defer making a ministerial intervention request until after the final process has concluded.
3. The Visa Applicant, Or Applicant’s Representative, Must Make The Request
Requests for ministerial intervention which are not made by the visa applicant in question or their representative will not be considered by the Minister. For instance, community support groups, or asylum advocates that seek to have asylum-seeking families remain in Australia after having received a refusal decision, will not be considered as having made an appropriate request for consideration by the Minister.
4. Make Your Argument Compelling And Persuasive
It is worth keeping in mind that the minister’s powers are public interest powers and are exercised only once compelling and compassionate circumstances have been established by the requester. Such compelling and compassionate circumstances need to be sufficient to demonstrate the public interest benefit of the Minister intervening. As the requester cannot determine what the public interest is themselves, this question will be left for the Minister to determine.
However, the requester can establish as many circumstances as the facts will allow in order to demonstrate compelling and compassionate circumstances. The Department of Home Affairs maintains a helpful list of the types of unique or exceptional circumstances that may be deemed appropriate to satisfy the eligibility requirements, but this list should by no means be considered exhaustive of the potential circumstances that will be accepted.
5. Request a referral from the AAT
It is worth noting that the tribunal member hearing the matter at the AAT has the power to refer the matter to the Minister for consideration under the ministerial intervention powers. AAT referral can often occur in cases where it is quite clear that the applicant does not meet the necessary criteria for the grant of a visa, however the applicant’s particular circumstances raise circumstances that are appropriate and warrant consideration under the Minister’s ministerial intervention powers.
As such, when a matter is heard by the AAT, an applicant can make an explicit request for a referral to the Minister. Whilst not every tribunal member will consider such a request, in the case where it is considered a referral from the Tribunal will add significant persuasive force to any subsequent ministerial intervention request. Proactively requesting the AAT’s involvement in the ministerial intervention process increases the likelihood that the Minister will consider exercising their powers.
6. Make a request with community support
In all ministerial intervention requests seeking to establish unique or compelling circumstances, the support of the community will be critical in demonstrating both unique/compelling circumstances and public interest benefits. A potential requester should consider seeking support from high-profile public figures that include:
- Leaders in the community
- Members of State or Federal Parliament
- Spiritual leaders
- Institutional leaders
- Leaders of local ethnic groups
- Any other individual whose support may add weight (For example, principles of colleges; Deans of colleges or universities; etc.).
Members of Parliament are often reluctant to assist in matters where the person making the request is not known to them. Accordingly, we recommend that the requester reach out to their local member of parliament and establish a relationship, and then seek to request a letter of support. The nature of the relationship between the requester and the person providing the letter of support should be described in the letter itself.
How can Corney & Lind Lawyers help you?
The immigration lawyers at Corney & Lind Lawyers have extensive experience in making ministerial intervention requests, specifically following negative protection visa outcomes from the AAT. Our lawyers have an in-depth understanding of the factors that undergird successful ministerial intervention requests, and will readily assist you in approaching your local parliament member for support in writing a letter of support if you so desire. We will move quickly to gather your supporting evidence, and ultimately help take the stress out of the process for you.
Contact us today to see how we can assist you.