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Ministerial Intervention

Ministerial Intervention in Australia allows the Immigration Minister to intervene in specific cases under the Migration Act 1958. This intervention can result in a more favourable decision, such as granting a visa, and is entirely at the Minister's discretion. The Minister is not obligated to intervene or even consider intervening.

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Legal Provisions for Ministerial Intervention

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There are several sections of the Migration Act 1958 that empower the Minister to intervene:

  • Section 351: Allows the Minister to substitute a tribunal's decision with a more favourable one, even if the tribunal did not have the power to make that decision.

  • Section 417: Enables the Minister to substitute the tribunal's decision if it is in the public interest.

  • Section 501J: Allows the Minister to set aside a tribunal's refusal of a Protection Visa and replace it with a favourable decision, if it is in the public interest.
     

Criteria for Ministerial Intervention

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The Minister may consider intervention under certain circumstances:
 

  1. Public Interest: The Minister can intervene if it serves the public interest or national security.

  2. Compassionate and Compelling Circumstances: Intervention may occur due to serious illness, death of a family member, or potential harm if the applicant returns to their home country.

  3. Australia’s International Obligations: The Minister can intervene to meet obligations under international agreements, such as the Refugee Convention.

  4. Administrative Errors: If there has been an error in the visa application process resulting in an unfair outcome.
     

Likely Scenarios for Intervention

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The Minister is more likely to intervene in cases where:

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  • Removal would cause serious harm to an Australian citizen or permanent resident family member.

  • The person has serious health issues that would be exacerbated by removal.

  • There are exceptional benefits to Australia if the person remains.

  • The person cannot be returned to their country due to uncontrollable circumstances.

  • The person faces significant risk or mistreatment if returned, despite not meeting refugee criteria.

  • The person has been refused a Protection Visa on character grounds but is at risk of harm if returned.

  • If you seek Ministerial Intervention, the process typically involves:
     

    1. Making a Request: A person or their legal representative can request the Minister to consider their case.

    2. Review by the Department: Requests are initially handled by the Department of Immigration according to the Minister's guidelines.

    3. Referral to the Minister: If the request meets the guidelines, it is referred to the Minister or the Assistant Minister for consideration.

  • The Minister's discretionary powers cannot be exercised in the following situations:
     

    • No tribunal decision exists.

    • The tribunal lacks jurisdiction or the application was made outside the time limit.

    • A visa has already been granted through intervention.

    • The case has already been decided by the Department of Immigration.
       

Need Help with a Ministerial Intervention? Book a consultation with our experienced lawyers for expert guidance on your application.

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