If you have received a negative outcome from your appeal at the Administrative Appeals Tribunal, or you have previously been refused a protection visa, or your protection visa has been cancelled, you may be able to apply to the Minister for Home Affairs for Ministerial intervention to grant you a visa that allows you to stay in Australia.
Although this might seem like an easy solution if you receive an unfavourable decision, it is important to understand how this intervention power operates and the likelihood of your matter being considered at all.
The Minister has powers under the Migration Act 1958 to intervene in cases where the Minister believes there it is in the public interest to do so. However, what is and is not in the public interest is for the Minister alone to decide. Moreover, the Minister is not legally bound to intervene, or even consider intervening.
When will the Minister intervene?
The Minister will only intervene in unique and exceptional circumstances, with each case decided on its merits. Applicants considering applying for Ministerial intervention will need to be able to show that without it there will be serious, ongoing and irreversible harm to an Australian citizen, or an Australian family. Additionally, there may also be compassionate circumstances regarding an applicant’s age, or health which, without recognition by the Minister, would result in serious hardship.
It is important to note that Ministerial intervention is extremely rare, and many applications for intervention never even make it to the Minister due to refusal in the early stages by Immigration officials.
Are you eligible to apply?
In most instances an applicant needs to hold a valid visa to apply for intervention. The Minister is unlikely to consider applications for intervention from ‘unlawful non-citizens’, or people who no longer hold a visa, or may have never held one.
If you find yourself in this category of applicants, you should seek legal advice to explore the possibility of obtaining a bridging visa.
Applicants must also ensure that they have exhausted all avenues of review with the Administrative Appeals Tribunal. Before the Minister will even consider intervention, a decision must have been made on a visa application, and a merits review must have been undertaken on that decision.
If you decide to leave Australia before a decision is made by the Minister on your matter, the Department of Home Affairs will finalise the application. This means that the Minister will not deal with the issue and the application will fail.
Therefore, it is important to understand that if you apply for intervention, you must be are able to remain in the country until a decision is made or risk the entire application being refused. This is especially important, as the Minister will not consider the same matter twice.
Applying for Ministerial intervention:
The Minister has made it clear that he will only consider one request for Ministerial intervention from any applicant. Therefore, if you are getting ready to apply for intervention, it is critical to include all relevant evidence and submissions with the request.
To maximise your chances of success in seeking Ministerial intervention, you should obtain expert advice and representation.
Preparing strong submissions is particularly important, as the Minister is more likely to refuse an application, than to approve it.
The evidence included in these submissions will vary on a case-by-case basis. For example, if an applicant is suffering from an illness and is of old age, making it impossible to travel back to their home country, then medical reports would likely be necessary.
Information pertaining to why treatment cannot be sought in the applicant’s home country may also be relevant.
When the Minister decides to intervene and make a more favourable decision, this usually means that the Minister will grant the applicant a visa.
An application to the Minister might be your last option, and our team of experienced immigration lawyers can advise you on whether or not you should consider applying for ministerial intervention. At Results Migration, we are experienced in assessing these types of cases and are able to advise you about your prospects of success. Beyond this, we can assist in collating and presenting evidence and in preparing your expert legal submissions which outline why you should be permitted to remain in Australia. If you believe your situation contains unique and exceptional circumstances, call us on 1800 808 717 to book in your free consult today!
