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SYDNEY NSW 2000


Email: solicitors@gmhlegal.com
Phone: (02) 9587 0458
Facsimile: (02) 9587 2936


MINISTERIAL INTERVENTION


Ministerial Intervention provides certain persons whose visa applications have been refused and who were unsuccessful at the review tribunals an opportunity to request that the Minister personally intervene and either grant the visa or make a more favourable decision than the initial refusal.

The Minister for Immigration and Citizenship has a set of public interest powers in the Migration Act 1958 that allow him to grant a visa or lift a bar to allow you to make a new Protection visa application. These powers are commonly known as ministerial intervention. Ministerial intervention requests are generally made by writing to the minister asking him to intervene in your case under one of his public interest powers.

You can make a request for ministerial intervention if you have received a decision by a review tribunal. This is because the minister’s public interest powers need a review tribunal decision to exist before he can intervene. A ‘review tribunal’ means the Refugee Review Tribunal (RRT), the Migration Review Tribunal (MRT) or, in certain circumstances, the Administrative Appeals Tribunal (AAT).

The basis for the Minister intervening is “the public interest” of Australia. That is, if the Minster believes that, based on the facts and evidence of the case, approving a visa application would be in the public interest of Australia, the minister has the ability to do so. Ministerial Intervention gives the Minister the ability to take a fresh look at a visa refusal decision from a “humanitarian” perspective. This typically considers larger-picture issues such as the interests of the public at large, the interests of the nation, and other interests such as economic, trade, or cultural interests.

However, there are certain limited circumstances where the minister cannot intervene even after a decision by a review tribunal. These include where:

  • The DIBP’s decision not to grant a visa is not a decision that can be reviewed by the relevant review tribunal;
  • the review tribunal has sent your case back to the DIBP for further consideration and one of the DIBP’s decision-makers has made a subsequent decision on the visa;
  • your review tribunal decision was made before 1 September 1994
  • a finding by the tribunal that the application made to the tribunal was invalid as it was not made within the required timeframe;
  • a decision of the AAT that is not in respect of an MRT reviewable decision or a protection visa decision.

A key element of your application for Ministerial Intervention is the preparation of your submission package to the Minister. We will prepare a complete submission package that focuses on the compelling details of your personal situation and the public interest arguments why you should be granted an Australian visa. We will also research previous legal cases that may be similar to yours and establish whether it may be prudent to include them as supporting references to your case.

Persons who apply for Ministerial Intervention may apply for a Bridging E visa, under which it is possible to obtain the right to work if a compelling need to work is established as part of the application. We will work with you to prepare your Bridging Visa application and submission package, and upon your request, a submission requesting work rights and documenting your need to work while you hold your Bridging Visa.

If your visa refusal review has been declined by the Migration Review Tribunal (MRT) or the Refugee Review Tribunal (RRT), there are strict time limits on how long you may remain in Australia if you do not file your request for Ministerial Intervention or appeal your case to the judicial system.

The first step is for you to contact one of our expert migration lawyers who will conduct a thorough assessment on your prospects for a request for ministerial intervention. We have handled many successful requests for ministerial intervention in the past and will lodge your application in a manner that puts your best case forward to the Minister.

WHO CAN WRITE TO THE MINISTER?

Anyone who:

  • has had their visa application reviewed and decided by the Migration Review Tribunal (MRT) or the Refugee Review Tribunal (RRT)1 (including cases referred by the MRT or RRT to the Administrative Appeals Tribunal (AAT)); or
  • has received an AAT decision in relation to a RRT or MRT reviewable decision (refusal or cancellation)2; or
  • is in detention (whether or not they have had their visa application reviewed and decided by the MRT or the RRT),

may write to the Minister for Immigration (‘Minister’) asking the Minister to consider issuing a visa in the “public interest”. This is generally referred to as a request for Ministerial intervention.

There are currently no guidelines available on the matters the Minister will take into account in relation to item (c) above. However, in relation to items (a) and (b), the Minister considers compassionate / humanitarian and exceptional circumstances in deciding whether or not to exercise his or her discretion.

Until further guidelines are made available, it is suggested that a person making a request to the Minister under item (c) emphasises the circumstances which are also relevant to items (a) and (b). If the Minister decides to exercise his / her discretion he or she will issue the visa which is considered to be the most appropriate. This may be a temporary or permanent visa.

MINISTERS REQUEST AND PROTECTION VISA’S

If your case has been to the Refugee Review Tribunal (RRT) and there has been a decision by the RRT to refuse you a Protection visa you can ask the Minister for Immigration and Citizenship to intervene in your case and grant you a visa. You can also ask the Minister to let you apply for a Protection visa again. These are two ways the Minister can intervene in your case.


The Minister can give you a permanent visa to stay in Australia

The Minister has the power to do this under s417 of the Migration Act. Sometimes you might hear people talk about a s417 request. This is the same as making a request to the Minister to give you a visa.


The Minister can let you apply for a Protection visa again

Usually you are only allowed apply for a Protection visa once. However, in very special circumstances you can also ask the Minister for Immigration and Citizenship to send your case back to the DIAC so that you can apply for a Protection visa again. The Minister has the power to do this under s48B of the Migration Act. When you ask the Minister to send your case back to the DIAC to give you another chance to apply for a Protection visa, this is sometimes called as48B request.

The Minister for Immigration and Citizenship can only intervene in your case if particular circumstances apply.

THE MINISTER’S POWERS

There are some important considerations to understand about the Minister’s powers:

  • The Minister must make a decision about your case personally. He cannot give your case to someone else in the Department of Immigration and Citizenship to decide.
  • There is nothing in the law which says that Minister has to consider your case at all.
  • The Minister’s decision about your case is final. His decision cannot be appealed or overturned by a Court or a Tribunal.
  • Whenever the Minister intervenes in a person’s case it has to be reported back to the rest of the government and he has to explain why he intervened in each case.

If you have already applied to the Minister once and you make a second request, he usually will not personally look at your case again. This means that if you do decide to apply to the Minister you should try to make sure you give as much important information as you can the first time you apply.

SHOULD I APPLY?

Here are some things to consider when you are deciding whether or not to make a request to the Minister.


Get legal advice to help you decide

It will help you decide whether to apply to the Minister if you get some migration advice about whether your case fits the Minister’s guidelines and to get an opinion about your chances of success if you do make a request. Unfortunately if your case is funded through IAAAS there is no funding available for your migration agent to help you with the Minister, which can make it difficult to find someone to help you with your case. This means that you will either have to ask someone to help you ‘pro bono” which means that they help you without charge or you will have to pay a migration agent to help you.


Does your case fit the Minister’s guidelines?

The first step in deciding whether to ask the Minister to intervene in your case is to look at the Minister’s guidelines so that you understand what he will be looking for when he decides your case.

If you think that your situation fits into the Minister’s guidelines then it can be a good idea to ask the Minister to intervene in your case. You need to understand that just because your situation may fit the Minister’s guidelines there is no guarantee the Minister will intervene to grant you a visa.


Do you have an Australian or New Zealand Partner?

If you have a partner who is:

  • An Australian citizen.
  • An Australian permanent resident.
  • An eligible New Zealand citizen.

You might have an option to apply for a partner visa. If you ask the Minister to intervene in your case and give you a visa, his office will usually send you a letter saying that he does not want to consider your case if you have a partner visa option. If you have an Australian partner, you should check whether you are able to apply for a partner visa to stay in Australia. If you have the money to apply for a partner visa and you are eligible for a partner visa, it may be better for you to lodge a partner visa application rather than writing to the Minister and asking him to intervene in your case.

It currently costs $2,960 to apply for a partner visa if you apply onshore in Australia. If you do not have the money to pay for a partner visa, you may need to lodge a request to the Minister so that you can remain lawful. You will need to have some request current so that you can apply for a bridging visa to stay in Australia. If you do this, the Minister will usually write back and say you should apply for a partner visa, so it is a good idea to start thinking about how you will pay the partner visa application fee.


What if I have an 8503 No Further Stay condition on the visa I used to come to Australia?

This is a condition which the DIAC sometimes puts on a person’s visa when they apply to come to Australia. This condition means that you cannot make any other visa application to stay in Australia while you are still in Australia. The exception to this is that you can still make an application for a Protection visa, but you cannot apply for any other type of visa.

If you do have a partner visa option, you also need to check whether the visa you entered Australia on has an 8503 ‘no further stay’ condition on it. If there is no 8503 condition then it is no problem to apply for a partner visa. If there is an 8503 condition you will need to first apply to the DIAC asking that they lift this condition before you can apply onshore for a partner visa.


What will the DIAC consider if I ask them to lift the 8503 condition?

If you have to write to the Minister asking that they lift an 8503 No Further Stay Condition you will need to show:

  • There has been a change of circumstances since you applied for your last visa.
  • The circumstances that have developed since you were granted your last visa are both compassionate and compelling.
  • You had no control over this change of circumstances.

Some examples of a change in your circumstances which might be considered compassionate and compelling include:

  • You have had an accident or contracted a serious illness (that makes you unfit to travel) since you have arrived in Australia.
  • A close member of your family in Australia has died or become seriously ill since you applied for your last visa and this means that you have to stay in Australia to provide assistance to your family.
  • A natural disaster or some other situation since you applied for your original visa which makes it unreasonable to expect you to return

The DIAC will not accept the fact that you have fallen in love or are having a baby as reasons to lift your 8503 condition as they say that these things are “in your control”. The DIAC will only lift the 8503 condition if you can show that the change in your circumstances since you applied for your original visa is something which you could not control.


What happens if the DIAC will not lift my 8503 condition?

If the DIAC will not lift this condition you can not apply for a partner visa while you are in Australia. You will have to leave Australia and then apply for a partner visa.


What if I am not eligible for a partner visa?

If you are not eligible for a partner visa, you can still make a request to the Minister to grant you a visa, but it is a good idea to explain to the Minister in that request, why you cannot apply for a partner visa to stay in Australia and why it is important that he intervene in your case as a result.


Going to the Minister is like a last chance for your case

If your case has already been rejected by the DIAC and the Refugee Review Tribunal (RRT) and you don’t have another visa option, then asking the Minister to intervene and either give you a visa to stay in Australia or let you apply for a Protection visa again, might be the last chance you have to stay in Australia.

It does not cost anything to make a request to the Minister, so some people decide that it is worth trying to make an application because it is the last chance for them to be able to stay in Australia.

It can be difficult to for your case to succeed at the Ministerial stage

The Minister has this power to intervene in people’s cases as a “safety net” to make sure that if there are exceptional or unique circumstances, or if a person’s situation has not been properly addressed by the migration laws, a person can be granted a visa. Because this power is used only in “exceptional” or very unusual situations, the Minister does not actually intervene in people’s cases very often.

If you do decide to ask the Minister to intervene in your case it is important to remember that he does not intervene in many of the requests he receives. It can take a long time to get a decision from the Minister and in at least 4 out of 5 cases it is a negative decision. If you do decide to apply to the Minister, it is a good idea to start thinking about what you will do if the Minister does not intervene in your case.


Is there a time limit on applying?

There is no time limit to make a request to the Minister – you can make a request at any time before you leave Australia – but if you are on a bridging visa this can affect how quickly you have to make your request. If you are going to make a request to the Minister make sure to make it before your current bridging visa expires.


My substantive visa has not expired

If the visa you came to Australia on is still valid and has not expired, then you do not have any strict time limit to ask the Minister to intervene in your case. This is because you can still stay lawfully in Australia on your original visa. If you are planning to make a request though it is a good idea to do this as soon you have been able to prepare it properly.


I am on a bridging visa

If you are on a bridging visa when you receive a negative decision from the Refugee Review Tribunal (RRT), you need to make your request to the Minister within 28 days of being notified of the RRT decision.

If you are on a bridging visa when you receive a negative decision from the Refugee Review Tribunal this bridging visa will expire 28 days after you are notified of the negative decision. Remember that if you receive the decision by fax or by email then this 28 day time limit starts the same day the fax or email is sent. If you received your decision by post then you have 7 extra working days from the date of the letter before your bridging visa will expire.


I am in detention

Deadlines do not apply in the same way in detention as they do if you are in the community as you hold no visa. However, if you intend to make a request to the Minister let the DIAC know about this as soon as you can. It is also a good idea to prepare your request to the Minister as soon as possible. If you do not make a request to the Minister the DIAC will start to prepare to remove you from Australia, so you will need to get the request to the Minister as soon as you can or keep the DIAC informed of when you will submit your request.


How much does it cost to apply?

There is no application fee to ask the Minister to intervene in your case.

HOW DO I APPLY FOR MINISTERS REQUEST?

You can make a request to the Minister by writing a letter which explains your situation and any important information about you. If you have someone helping you with your case, they can help you write that letter in your own name. If you have a migration agent helping you then they can write the letter to the Minister about you and your situation.


What should I put in the letter?

You should make sure that in your letter you explain how your situation fits into the Minister’s guidelines of what he will consider in a person’s case.

If you do make a request to the Minister it is really important to provide as much information as you can. If you just send a short one or two page request without providing evidence which supports your request – then usually your request will be refused. To give your case the best chance it is a good idea to try to gather as much evidence as you can to support your request to stay in Australia. It is a good idea to include these things in the letter you write.


Include a statutory declaration

This is a statement from you explaining in as much detail as you can information about things it is important for the Minister to know about when he is thinking about your case.

Include evidence about your integration in Australia and any special skills you have

One of the Minister’s guidelines is about whether you have integrated into the community in Australia. He will also look at whether you have special skills which mean that by allowing you to stay in Australia there will be exceptional economic, scientific or other benefit to Australia.

If you can, try to give the Minister any evidence about your special skills and the connections you have made in the community through:

  • Your work
  • Your study
  • Volunteer work
  • Involvement in a religious group
  • Involvement in community groups
  • Information about family members and friends you have in Australia
  • Information about any clubs or societies you are a member of and information about how long you have been in Australia.

You can include some of this information in your statutory declaration – but it is also a good idea to get other people to write letters of support and character and employment references to confirm these things.


Include references and letters of support

It is a good idea to get as much independent information about your situation as you can. Sometimes it can be helpful to get references from your employer, friends, family or other connections in the community.


Include information about any risks to you if you return home

If you are at risk when you return home you should provide any evidence you can to support this. If there is information or evidence about the risk to your personal security if you return home which was not given to the Refugee Review Tribunal or the DIAC when you applied for protection, you can give it to the Minister. This can include up to date information about your country of origin and other evidence about your situation.


Include information about your medical, psychiatric or psychological conditions

If there is any important information the Minister should know about your physical or mental health, you can include this with your request by asking your Doctor, psychiatrist, psychologist or other health professional to write a report about you which you can send to the Minister.

WHAT DOES THE DECISION MAKER CONSIDER?

The Minister will consider slightly different things depending on what you ask him to do. Here are the Minister’s considerations based on the two different types of requests:


A request under s 417 for the Minister to give a permanent visa

In general the Minister will only consider intervening in your case and giving you a visa under s417 of the Migration Act if:

  • Unique and exceptional circumstances apply to your case; and
  • It is in the “public interest” to give you a visa.


A request under s48B for the Minister to let you apply again

If you are making a request under s48B, you are asking for the chance to have your refugee claims considered again by a new DIAC case officer. The Minister won’t just give you a second chance. He can only do this if:

  • He thinks it is in the public interest to do so; and
  • You have significant new refugee claims or new information about your previous refugee claim; and/or
  • There has been a change of circumstances your country of nationality which makes you at greater risk; and/or
  • If your case is outside the time limit for judicial review; and/or
  • The government has a reason under its international obligations to give you a second chance to apply.

You do not have to choose between making a request under s417 and s48B. You can make a request under both of these sections at the same time in the same letter.


What if I have already applied to the Minister once before?

If you have already asked the Minister to look at your case once, then usually it will be difficult to get the Minister to look at your case again unless you can show:

  • There has been a significant change in your circumstances since your last request.
  • The change in circumstances raises new substantial issues which the Minister has not considered before.
  • These new circumstances must be unique and exceptional.
  • You must have a valid visa or have applied for one if you are not in detention.



What is considered significant new information?

  • A change of government in your country that now places you at riskof persecution.
  • Death or serious illness of a close family member where you must remain in Australia to provide assistance that can only be provided by you.
  • A natural disaster in your home country where it would be unreasonable to expect you to return.
  • War or severe political or civil strife in your home country.
  • Marriage to an Australian citizen or permanent resident.
  • Having a child with an Australian citizen or a child who is now an Australian citizen.
  • A qualification that is in high demand in Australia where you have an Australian employer willing to sponsor you.

UNIQUE OR EXCEPTIONAL CIRCUMSTANCES

The minister has provided guidance on the types of unique and exceptional circumstances he wants brought to his attention.

The table below provides the minister’s list of unique or exceptional circumstances and some examples of the type of supporting documents you may need to provide. This list is not exhaustive.

Note: Providing the documents listed or meeting one of the unique or exceptional circumstances below does not mean the minister will intervene in your case.


Changes to Unique or Exceptional Circumstances

The Migration Amendment (Complementary Protection) Act 2011 implemented on 24 March 2012. From this date Australia’s non-return obligations are assessed as part of the statutory Protection visa (PV) process rather than through Ministerial intervention. Further information about Complementary Protection is now available.

Below is a list of the types of unique or exceptional circumstances:

  • Circumstances that may bring Australia’s obligations as a party to the Convention on the Rights of the Child (CROC) into consideration.
  • Under CROC, the best interests of a child will be considered as a primary consideration. This includes you, if aged under 18, or a child with whom you have a close relationship.
  • 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 you leave the country.
  • Exceptional economic, scientific, cultural or other benefit to Australia.
  • Compassionate circumstances regarding your age and/or health and/or psychological state such that failure to recognise them would result in irreparable harm and continuing hardship to you.
  • Length of time you have been present in Australia and your level of integration into the Australian community. documents which demonstrate that you have integrated into the Australian community, including how you and your family participate in 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.
  • You are unable, through circumstances outside your control, to return to your country/countries of citizenship or usual residence. evidence of identity

MARA CODE OF CONDUCT

The Code of Conduct for registered migration agents is set out in legislation to regulate the conduct of registered migration agents. It prescribes our obligations towards our clients.

Provision for a Code of Conduct for migration agents is set out in Section 314 of the Migration Act 1958 and is prescribed in Schedule 2, Regulation 8 of the Migration Agents Regulations 1998.

You can read the Code of Conduct for registered migration agents by clicking on this link: Code of Conduct.

Call the experienced team at GMH Legal to assist you in your matter. A free consultation with GMH Legal is an opportunity to gain deep insights into your legal situation and all of your options.

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