Ministerial Intervention - When All else Fails

 

 

In certain circumstances persons who are aggrieved with migration related decisions may be able to apply to the Minister for intervention in their case.

However, the process is not easy. As a starting point, eligibility to make application to the Minister is determined by reference to a number of sections within the Migration Act. Although there are six sections of the act dealing with referrals to the Minister, by far the most common situations where a referral arise are those where a visa applicant who is onshore has been refused a visa by the Department of Immigration and then either the Migration Review Tribunal or the Refugee Review Tribunal.

The Minister has indicated that applications for intervention must be able to demonstrate that unique or exceptional circumstances exist, and has published a set of guidelines indicating the types of situations that he would be prepared to consider under his public interest powers. In brief, these are:

- Circumstances that may bring Australia’s obligations as a party to the Convention on the Rights of the Child into consideration,

- Strong compassionate circumstances such that failure to recognise them would result in irreparable harm and continuing hardship to an Australian citizen or permanent resident should the visa applicant leave the country,

- Exceptional economic, scientific, cultural or other benefit to Australia,

- Compassionate circumstances regarding the applicant’s age and/or health and/or psychological state such that failure to recognise them would result in irreparable harm and continuing hardship to the applicant,

- Length of time the applicant has been present in Australia and the level of integration into the Australian community,

- Circumstances that the legislation does not anticipate or clearly unintended consequences of legislation or the application of relevant legislation leads to unfair or unreasonable results,

- The applicant is unable, through circumstances outside his or her control, to return to the country of citizenship or usual residence,

- Where the applicant’s circumstances have been assessed as engaging Australia’s non-return obligations but the applicant was excluded from the grant of a PV or had a substantive visa cancelled or refused on character grounds.

It should be remembered that the Minister is under no obligation to intervene in a case and generally will only do so if an applicant can demonstrate that any of the guidelines referred to above can be met. This means that anyone considering making an application to the Minister needs to think carefully about the guidelines and be able to demonstrate which of them apply to their situation.  All claims for intervention need to be presented in clear and concise terms and should be accompanied by relevant supporting documentation. If it is not possible to provide supporting documents, reasons should be given for not being able to do so.

The Minister will generally only consider requests from persons who are on valid bridging visas. If an applicant has allowed his or her visa to lapse, it is important to contact the department and arrange for a bridging visa to be granted as a matter of urgency.

Because the Minister is under no obligation to consider an application, and because the guidelines are tightly prescribed, it is of utmost importance that great care be taken in preparing submissions for the attention of the Minister, and if an applicant has any doubt about the ability to convey a clear and concise summary of his or her circumstances, professional assistance should be obtained.