The Minister has powers under the Migration Act 1958 to intervene in your case when the Minister thinks it is in the public interest to do so.
What is and what is not in the public interest is for the Minister to decide. The Minister is not legally bound to intervene or to consider intervening.
When the Minister intervenes to make a more favourable decision, this usually means that the Minister grants a visa. However, only a small number of all requests for ministerial intervention are successful.
Options that might apply to you:
- You have received a decision by a review tribunal
- You have previously been refused a protection visa or your protection visa has been cancelled
Legal Framework:
Under section 351 of the Migration Act 1958 (Cth), the Minister for Immigration and Border Protection has the power to intervene in a case, either on their own initiative or at the request of a visa applicant, where they consider it to be in the public interest to do so. The Act does not provide a specific definition of what constitutes the public interest, nor does it provide clear criteria for the exercise of this power. Rather, the decision to intervene is a discretionary one, and the Minister may take into account a range of factors.
When can a Minister consider an Intervention Request?
There are several provisions under which the Minister can consider an intervention request:
- Public interest: If the Minister believes that it is in the public interest or national security to intervene in a particular case, they may use their discretionary power to grant a visa.
- Compassionate and compelling circumstances: The Minister may intervene in cases where there are compelling and compassionate circumstances that warrant special consideration, such as cases involving serious illness, death of a family member, or a situation where an applicant may face significant harm if they return to their home country.
- Australia’s international obligations: The Minister may intervene in a case if it is necessary to meet Australia’s international obligations, such as under the Refugee Convention or other international agreements.
- Administrative error: The Minister may intervene if there has been an administrative error in the visa application process that has resulted in an unfair or unreasonable outcome.
It is important to note that Ministerial Intervention is a discretionary power, and the Minister is not obliged to intervene in any particular case, even if the circumstances appear to meet one or more of the provisions above.
What is the purpose of Ministerial Intervention?
According to the Australian Government Department of Home Affairs, Ministerial Intervention is not an extension of the visa application or review process, it is a “safety net” mechanism that allows the Minister to intervene in certain visa cases where the decision may result in “unfair or unreasonable” outcomes. This power is discretionary and is only used in unique or exceptional circumstances where it is in the public interest to do so.As initially conceived, ‘these discretionary powers were meant to balance what is an otherwise inflexible set of regulations.”
Case LawOne of the most well-known cases is the case of Mr. Puvanendran, who was granted a visa by the Minister in 2011 after he had been detained for more than two years. Mr. Puvanendran was a Tamil refugee from Sri Lanka who arrived in Australia by boat in 2009. He was initially assessed as a genuine refugee, but his visa was cancelled in 2010 on character grounds after he was found guilty of theft and assault. Despite this, the Minister exercised his power of intervention in 2011 and granted Mr. Puvanendran a visa, citing humanitarian and compassionate reasons. The case of Mr. Puvanendran is significant because it highlights the discretionary nature of Ministerial Intervention and the potential for the Minister to take into account a wide range of factors beyond the strict legal requirements of the Migration Act. Source:”Puvanendran v Minister for Immigration and Citizenship [2012] FCAFC 162″, Federal Court of Australia, 14 November 2012, available at https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2012/2012fcafc0162 |
Advantages of Ministerial Intervention: |
Disadvantages of Ministerial Intervention: |
| 1. Flexibility: Section 351 of the Migration Act 1958 (Cth) allows the Minister to consider each case on its individual merits and to take into account a wide range of factors beyond the strict legal requirements of the Act. This provides greater flexibility in decision-making and allows for a more compassionate and humane approach. [1]
2. Review and oversight: The exercise of Ministerial Intervention powers is subject to review by the courts, which helps to ensure that decisions are made fairly and in accordance with the law. [2] The High Court has held that the Minister must act in accordance with the principles of natural justice when exercising these powers. [3] 3. Protection of vulnerable individuals: Ministerial Intervention can provide a safety net for vulnerable individuals who may not be eligible for other forms of relief, such as asylum or refugee status. [4] |
1. Lack of transparency: Ministerial Intervention is a discretionary power, and there is no automatic right to request intervention. This lack of transparency can lead to uncertainty and inconsistency in decision-making. [5]
2. Political influence: The exercise of Ministerial Intervention powers may be subject to political influence, particularly in cases that receive media attention or public scrutiny. This can undermine the integrity of the decision-making process and raise questions about the fairness of outcomes. [6] 3. Delay and uncertainty: Ministerial Intervention can be a lengthy process, and the outcome is uncertain. This can be particularly challenging for individuals who are in detention or who are facing immediate removal from Australia. [7] |
[1]Migration Act 1958 (Cth), s 351, available at https://www.legislation.gov.au/Details/C2021C00136
[2] Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16, available at https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2018/16.html
[3] Minister for Immigration and Citizenship v Li [2013] HCA 18, available at https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2013/18.html
[4] Department of Home Affairs, Guidelines on Ministerial Intervention, available at https://immi.homeaffairs.gov.au/help-support/meeting-our-requirements/visa/other-ways-to-get-a-visa/minister-of-immigration-and-border-protection-guidelines-on-the-exercise-of-ministerial-intervention-in-the-public-interest
[5] Puvanendran v Minister for Immigration and Citizenship [2012] FCAFC 162, available at https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2012/2012fcafc0162/2012fcafc0162.pdf
[6] Al Kateb v Godwin [2004] HCA 37, available at https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2004/37.html
[7] The Department of Home Affairs, Ministerial Intervention, available at https://www.homeaffairs.gov.au/help-and-support/meeting-our-requirements/other-forms-of-visa-support/ministerial-intervention
Minister’s Powers to Intervene
The Act provides the Minister with powers to intervene in individual cases if he thinks it is in the public interest to do so. These are commonly referred to as the Minister’s public interest powers.
For example:
| under section 48B | the Minister can intervene to allow a person who has had a Protection visa (PV) refused or cancelled to make a new PV application onshore |
| under sections 351, 391, 417, 454, 501J | the Minister can replace a decision of a review tribunal with one that is more favourable to the person concerned |
| under section 345 | the Minister can replace a decision made by a review officer prior to 1 June 1999 with another decision the terms of which were agreed to by the applicant |
| under section 195A | the Minister can grant a visa to a person in immigration detention. |
The Minister’s public interest powers are:
- non-delegable – decisions must be made by the Minister personally or where appropriate by another Minister
- non-compellable – the Minister does not have a duty to consider whether to exercise the powers
- non-reviewable – ministerial decisions made under these powers are not reviewable by the tribunals and cannot be overturned by the courts
- subject to reporting to parliament – the Minister is required to table in parliament a statement of reasons when these powers are used.
Moreover, Under ss 351(1), 417(1), 501J(1) of the Migration Act 1958 (Cth), there are only two preconditions for the exercise of the power, namely, the Minister having decided to consider whether to exercise the power and the Minister thinking that it is in the public interest to do so. As there is no statutory duty to consider any request, ‘no question of procedural fairness arises when the Minister declines to embark upon such a consideration’.[1]
| Types | Supporting examples |
| · Strong compassionate circumstances that, 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) | · A statutory declaration outlining how the Australian citizen or permanent resident will suffer ongoing and irreversible harm and continuing hardship, and any reasons why you cannot apply for a visa from outside Australia
· Medical/specialist reports confirming an Australian citizen or permanent resident needs ongoing and continuous care that is not otherwise available and evidence of the efforts you or your family have made to source care from community and other support services; Supporting letter from the Australian citizen or permanent resident to whom you are providing support, or from their family members, |
| Compassionate circumstances regarding your age, health or psychological state, that if not recognised, would result in serious, ongoing and irreversible harm and continuing hardship. | · Documents to support claims that you would suffer serious, ongoing and irreversible harm and continuing hardship if you are returned to your country of origin:
o Evidence of your age (birth certificate or passport) o Evidence of your health status (recent medical/specialist reports) o A statutory declaration outlining how you will suffer irreparable harm and continuing hardship because of your age or ill-health o A letter of support from your family members or from others who are willing to provide you with ongoing care while you are in Australia indicating the nature of the support and care that they are able to provide. |
| Exceptional economic, scientific, cultural or other benefits that would result from you being permitted to remain in Australia. Have you integrated well into the Australian community? | Documents demonstrating why you would be of exceptional benefit to Australia:
· Awards or industry or peer recognition; · Letters of support from relevant national bodies- professional, industry, cultural or sporting bodies; · Evidence of your English language standard such as the results of an International English Language Testing System (IELTS) language test; · Evidence of qualifications, for example degrees or membership of a professional body; · Evidence that your skills are recognised in Australia by a relevant Australian assessment authority; · Employer references showing you have been employed in your profession or trade; · Business or financial statements. · Documents showing participation in or membership of community organisations e.g. sporting clubs, volunteer work, cultural groups |
| You cannot be returned to your country of citizenship due to circumstances outside your control. | Documents supporting your claims:
· Evidence of identity – birth certificate or a genuine travel document issued in your name · Evidence that you cannot get or you have been refused a new travel document by your country of citizenship or the country you usually live in. · Country information that relates to you fears independent information showing you would face this kind of harm. · Did not meet the criteria for the grant of any type of Protection Visa. |
Statistics
The Department of Home Affairs has not published any recent statistics on Ministerial Interventions. The most recent and publicly available statistics are from 2012/13 which shows that the Minister intervenes in 26% of cases under s417 of the Migration Act 1958 and 44% of cases under s357 of the Migration Act 1958.
[1] Plaintiff S10 (2012) 654 [50] (French CJ and Kiefel J).
Book a meeting for a commitment free briefing with our Registered Migration Agents in Melbourne to find more about your visa options.
