A glimmer of hope, a golden ticket or simply delaying the inevitable?
There are times when a visa applicant might be essentially unable to fully satisfy the criteria required for a targeted visa and this will generally result in refusal of the application.
Where the applicant disputes such a decision and has material facts to support such a challenge, the Australian Government does provide a channel of recourse, via its Administrative Appeals Tribunal (ATT) but again, the application will be reviewed (through a fresh set of eyes) under close adherence to the original criteria documented for the visa in question.
It’s certainly a worthwhile avenue but it may ultimately result in further disappointment.
What is Ministerial Intervention?
Under the Migration Act 1958, the Minister for Immigration, Citizenship and Multicultural Affairs is provided with the ability to personally intervene in visa decisions, following a refusal and adverse determination by the ATT. The Minister has no legal obligation to do so but, should he (or she) believe it to be in the public interest, the Act provides for him (or her) to overrule earlier decisions by granting visas for the applicant and for any applicable family members.
Again, it must be stressed that the Minister has no obligation to intervene and as a result, the number of visas, achieved through this process, is exceedingly small.
In which cases will the Minister consider intervention?
Applications for Ministerial Intervention are subject to strict guidelines. These guidelines outline the circumstances under which the matter will, or will not, be considered.
The Minister will consider cases which fall within the following guidelines:
- Strong compassionate circumstances which, if not recognised, would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.
- Compassionate circumstances regarding the applicant’s age and/or health and/or psychological state, which, if not recognised, would result in serious, ongoing and irreversible harm and continuing hardship.
- Exceptional economic, scientific, cultural or other benefits which would result from the applicant being permitted to remain in Australia.
- Where circumstances not anticipated by relevant legislation, clearly unintended consequences of legislation or the application of relevant legislation leads to unfair or unreasonable results in the applicant’s case.
- Due to circumstances outside the applicant’s control, he or she cannot be returned to his/her country or countries of citizenship, or usual residence.
In which cases will the Minister refuse to intervene?
It would be very rare for the Minister to consider intervention for any case which does not fall within the above guidelines, nor for visa applications which contradict the public interest, including the following:
- The request is made by a person who is not the direct subject of the application, or their authorised representative.
- The applicant is already in the community.
- The applicant is an unlawful non-citizen and remains an unlawful non-citizen throughout the course of his/her Ministerial Intervention request, failing to cooperate in ensuring that either, a valid travel document is available or satisfying the Department that he (or she) is stateless.
- The applicant has been found not to satisfy a fraud-related Public Interest Criterion for the grant of a visa.
- The applicant’s visa has been cancelled because he or she breached their visa conditions.
- The applicant has had a visa refused because he or she failed to comply with the conditions of a previous visa.
- The applicant has been refused a visa or has had a visa cancelled on character grounds.
- The Australian Secret Intelligence Organisation (ASIO) has determined that the applicant person is a direct or indirect risk to national security and has issued to that person an Adverse Security Assessment (ASA) which remains in effect.
- The applicant could apply for a Partner visa onshore but is subject to a visa condition 8503 (which specifies that after entering Australia, the person cannot be granted another substantive visa other than a protection visa, while still in Australia) and a request for a waiver of that condition has not been sought nor decided.
- The applicant might be able to apply for a Partner visa onshore, as prescribed under regulation 2.12(1) of the Migration Regulations 1994 (the Regulations).
- The person’s application for a Partner visa onshore, as prescribed under regulation 2.12(1) of the Regulations, has been refused, with the applicant now barred from applying for a Partner visa onshore.
- The applicant person has left Australia
- The person has an ongoing application for a substantive visa (either onshore or offshore) with the Department.
- The person has an ongoing application for merits review of a visa decision with the relevant review tribunal.
- The applicant has received a remittal or a set-aside decision from a relevant review tribunal or a court.
- The applicant’s review tribunal decision was in relation to the refusal or cancellation of a Bridging Visa E.
- The applicant already has an ongoing ministerial intervention request under any of the powers covered by these guidelines.
- A Notice of intention to Remove has been issued to the person and the ministerial intervention request has not been initiated by the Department.
- The applicant holds a Bridging Visa E with visa condition 8512, which specifies that the person must leave Australia by a specified date.
- The request raises claim only in relation to Australia’s non refoulement obligations.
Refusal or cancellation of Protection Visas
Protection Visas include Permanent Protection Visas, Temporary Protection Visas and Safe Haven Enterprise Visas. Applicants may only apply for one such visa and if the application is refused or the visa cancelled, a second application cannot be lodged.
Reviews of Protection Visa decisions remain available through the Administrative Appeals Tribunal (AAT). The Minister will generally not entertain any intervention, where the application has already been considered by AAT, the Department of Immigration and Border Protection (DIBP) or by the Administrative Appeals Tribunal (AAT) unless it presents with significant changes to circumstances; changes which could not have been addressed in the initial or previously considered applications.
Protection Visas will not be considered for the following countries:
- Austria, Belgium, Canada, Cyprus, Denmark, Estonia, Finland, France, Germany, Ireland, Italy, Japan, Malta, Netherlands, New Zealand, Norway, Portugal, South Korea, Spain, Sweden, Switzerland, United Kingdom and the United States of America.
Unless the applicant is from Afghanistan, Iraq, Libya, Somalia, South Sudan or Syria, processing times for Protection Visas generally extend beyond six (6) months.
When may an applicant apply for Ministerial Intervention?
The short answer, “when all other avenues have been exhausted”.
Should he or she choose to do so, the Minister can only intervene and consider discretionary powers where there is an existing (final) decision, derived from the AAT, the Migration Internal Review Office or the former Refugee Review Tribunal, Migration Review Tribunal or Immigration Review Tribunals.
All applicants for Ministerial Intervention must hold a valid visa permitting them to reside in Australia at the time the application is made and throughout the intervention process. In most cases this would be a Bridging Visa E (BVE).
A glimmer of hope, a golden ticket or simply delaying the inevitable?
Definitely not a “one size fits all,” any decision to apply for Ministerial Intervention must be carefully considered, based upon its individual merits, convincing logic and opportunities for success. On many occasions, for one reason or another, even those which appear openly meritorious may fail in capturing the required attention; having already accrued two rejections, the percentage of success in this last recourse is by no means high and of course, with rejection comes a requirement to exit Australia.
A comprehensive and persuasive case
A professionally prepared and comprehensively detailed application affords the best opportunity for consideration. At Sellanes Clark, we understand the complexities of the process; we can assist with preliminary evaluation and advice, full preparation then where required, final submission.
For more information on this or on any relating issues, contact the friendly migration experts at Sellanes Clark Law Firm – specialising in all immigration law matters.