Ministerial Intervention – When All Avenues Are Exhausted

When an immigrant's visa application is rejected, they can usually apply for ministerial intervention. This process is often the last resort for people who have exhausted all other avenues. However, the process is not always easy and can be quite complicated. In this blog post, we will explore what ministerial intervention is, and how to go about applying for it. We will also look at some of the benefits and drawbacks of this process. So, if you are interested in finding out more about ministerial intervention, read on!

What does it do? Why and when do we apply for one?  

The Migration Act 1958 (Cth) confers authority to the minister to determine the outcome of a visa application. Some of these provisions includes but are not limited to Migration Act 1958 (Cth) ss 351, 417. 

The Minister may substitute a decision of the Administrative Appeals Tribunal (AAT) with a more favourable decision if the Minister believes that it is in the public interest to do so. Hence, should the AAT affirm the Department of Home Affairs’ decision to refuse a visa application, the Minister may overturn that decision.  

Ministerial Intervention is supposed to be utilised only as a last resort. The visa applicant should consult with a migration agent/migration lawyer to double check whether there are other visa options suitable for him/her. This is due to two reasons. Firstly, the decision cannot be appealed to the courts or to the AAT. Secondly, should the visa applicant have other available options, they are likely to fail the eligibility requirements. More information will be provided in the following sections. 

Eligibility to ministerial intervention 

To be eligible for ministerial intervention, the visa applicant/appellant’s case must fall within the confines of “unique or exceptional circumstances”. There is no concrete definition to “unique or exceptional circumstances” but there are generally five grounds that will satisfy this requirement: 

  1. 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. 

  2. 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. 

  3. Exceptional economic, scientific, cultural or other benefit that would result from you being permitted to remain in Australia. 

  4. 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. 

  5. You cannot be returned to your country/countries of citizenship or usual residence due to circumstances outside your control. 

Please note that this is not an exhaustive list. 

Circumstances the Minister cannot consider 

The following is a list of scenarios the Minister may not consider: 

  1. If the request is submitted by an unlawful non-citizen and remains an unlawful non-citizen throughout the course of their Ministerial intervention request 

  2. If the person been found not to satisfy a fraud-related Public Interest Criterion for the grant of a visa 

  3. If the person’s visa has been cancelled because they breached their visa conditions 

  4. If the person has had a visa refused because they did not comply with the conditions of a previous visa 

  5. If the Australian Security Intelligence Organisation (ASIO) has determined that the person is a direct or indirect risk to national security 

  6. If the person could apply for a Partner visa onshore but is subject to a visa condition 8503 and a request for a waiver of that condition has not been sought or decided 

  7. If the person has left Australia 

  8. If the person has an ongoing application for a substantive visa with the Department of Home Affairs 

  9. If the person has an ongoing application for merits review with the AAT  

Further information 

Every situation is unique, please contact us for an assessment of how to present your case to the Minister. 

Agape Henry Crux Can Help You

Every situation is unique, please contact us for an assessment of which visa best suit your purposes. At Agape Henry Crux, our Accredited Specialist Immigration Lawyers and our team of immigration lawyers and migration agents are well trained to handle highly complex matters. Contact us or book one of our lawyers or agents to seek professional advice by calling 02-72002700 or email us to book in a time at info@ahclawyers.com.

Ministerial InterventionJason LingAgape Henry CruxMinisterial Intervention, AAT, Administrative Appeals Tribunal