Ministerial Intervention for Visa Application
The Minister has the ability to intervene and change the decision on a case, however the Minister is not legally bound to intervene and will only consider intervening when it is in the public interest to do so. Only a small number of all applications for Ministerial Intervention are successful.
There are two scenarios whereby a visa applicant can apply for Ministerial Intervention. The first is when they have received a decision by the Administrative Appeals Tribunal or an applicant has had their Protection Visa application refused or cancelled.
All applicants must hold a visa if they wish to be considered for Ministerial Intervention. Any application lodged when the applicant does not hold a visa will not be considered.
If an application to the Minister is unsuccessful, the applicant is expected to depart Australia.
MIU – Decisions made by the AAT
If an application has been reviewed by the AAT, there may be an opportunity for the decision to be reviewed by the Minister. This also includes the former Migration Review Tribunal and the Refugee Review Tribunal if the decision was prior to 1 July 2015.
The Minister has guidelines of circumstances that may be considered and circumstances that will not be considered.
The Minister will consider cases that:
- 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.
- Compassionate circumstances regarding your age and/or health and/or psychological state, that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship.
- Exceptional economic, scientific, cultural or other benefit that would result from you being permitted to remain in Australia.
- Circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in your case.
- You cannot be returned to your country/countries of citizenship or usual residence due to circumstances outside your control.
The Minister will not consider cases that contradict the public interest and include; when a person has breached or not complied with visa condition on their current or previous visas, if the applicant has not met character requirements, the applicant does not satisfy fraud-related public interest criteria, the Applicant has been identified by the Australian Secret Intelligence Organisation as a direct or indirect risk to national security, when a partner visa application is subject to an 8503 condition no further stay condition or the person is barred from applying for a Partner visa onshore.
MIU – Refusal or Cancellation of Protection Visas
An Applicant can only apply for one Protection Visa. If this application is refused or cancelled, a second application cannot be lodged. Protection visas include permanent Protections Visas, temporary Protection Visas or Safe Haven Enterprise Visas.
Usually the only opportunity to apply for a review of a protection visa is through the Administrative Appeals Tribunal and it is expected that all the relevant information is included in the initial application. The Minister will not entertain any application that has been considered by the Department of Immigration and Border Protection (DIBP) or the Administrative Appeals Tribunal (AAT). The only reason a minister may consider intervening in the case of a protection visa is when the circumstances surrounding the protection visa claims have changed and therefore could not be addressed in the initial application or to the Tribunal.
There are certain countries where Protection Visas will not be considered including 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.
It will generally take more than six months for a Protection visa decision to be reviewed by the Minister unless the applicant is from Afghanistan, Iraq, Libya, Somalia, South Sudan or Syria.
The Minister has powers under the Migration Act to allow a person who would otherwise be barred to make another application for a protection visa.