Ministerial Intervention to Grant Visas
The Migration Act 1958 empowers the Immigration Minister to intervene in a case under certain circumstances. The minister has the power to substitute a decision of the Administrative Appeals Tribunal (AAT), with a more favourable decision. Ministerial intervention is entirely at the discretion of the minister. The minister is not obliged to intervene in any matter.
What provisions allow for ministerial intervention?
Three provisions of the Migration Act allow the minister to intervene to grant visas. These are:
Section 351 of the Migration Act allows the minister to substitute a decision of the tribunal with a more favourable decision. The more favourable decision does not have to be one that the tribunal had the power to make.
Section 417 of the Migration Act allows the minister to substitute the tribunal’s decision with a more favourable decision where the minister considers this is in the public interest.
A non-citizen can request the minister to consider exercising this power. However, when a request is made, the minister does not have a duty to consider exercising this power.
Where the AAT has refused a person a Protection Visa, the minister may set aside that decision and substitute it with a positive decision where they consider doing so is in the public interest. It is not a requirement that the more favourable decision be a decision that the AAT had the power to make.
When exercising their discretionary powers, the minister must provide reasons for their determination to both houses of parliament.
When can the minister intervene?
The Minister can only intervene when there is a relevant existing decision. This may be a decision of the former Refugee Review Tribunal (RRT), the former Migration Review Tribunal (MRT) AAT, or the former Immigration Review Tribunal or Migration Internal Review Office.
When the minister cannot intervene
The minister cannot exercise their discretionary powers where:
- There is no tribunal decision;
- A tribunal has found that it does not have jurisdiction;
- A tribunal has found that the person’s application was made outside of the time limit;
- A minister has already intervened and granted a visa;
- The matter has already been referred to the Immigration Department by the Tribunal and a decision has already been made.
Making a request for ministerial intervention
If a person requests that the minister consider their case for intervention, the request will probably be dealt with by the department according to the guidelines of the Immigration Minister’s. Requests for ministerial intervention that meet the minster’s guidelines are subsequently referred to the assistant minister or to the minister to consider personally.
Very few requests for ministerial intervention result in the original decision being reversed. A person who is applying for ministerial intervention must hold a current visa while they are going through the process. The person must continue to make arrangements for leaving the country when their visa expires, despite having made a request to the minister.
A request for ministerial intervention is not an extension of the visa application process. When a person still has a visa pathway open to them, it is generally not appropriate for the Minister to intervene.
A person can make a request to the minister themself or retain a lawyer to do so for them.
When will the minister intervene?
The Minister is most likely to intervent and exercise a discretionary power where:
- There are strong compassionate reasons for intervention due to one or more of the person’s family members being Australian citizens and where the person’s removal would cause those people serious harm;
- The person is ill and their removal would cause them serious harm;
- There are exceptional scientific, economic or cultural benefits to Australia if the person remains here;
- The person cannot be returned to their country because of circumstances beyond the person’s control;
- The person is at risk of mistreatment if they are returned to their country of origin, despite having been assessed as not meeting the criteria for refugee status;
- The person has been refused a Protection Visa on character grounds but is at risk of being harmed if they return to their country.
If you require legal advice or representation in an immigration law matter or in any other legal matter, please contact Armstrong Legal.