What is Ministerial Intervention in Australia?

The Immigration Minister has powers to intervene in a person's case under the Migration Act 1958 if the Minister thinks it is in the public interest to do so. The Minister may exercise discretion to replace a decision of a merits review tribunal on a person’s case with a decision that is more favourable to that person.

The Minister is not legally obliged to intervene nor consider any case. You should also not assume that your request for ministerial intervention will be referred to the Minister.

Migration Act 1958

Section 351

Section 351 of the Migration Act empowers the Minister to substitute the decision of the Tribunal with a more favourable decision. The more favourable decision does not have to be a decision that the Tribunal had the power to make.

Section 417

Section 417 of the Migration Act empowers the Minister to substitute the decision of the Tribunal with a more favourable decision where he or she considers it is in the public interest to do so.

A non-citizen can request that the minister consider exercising this power. However, the Minister does not have a duty to consider exercising this power when requested to do so.

Section 501J

Where the Administrative Appeals Tribunal (AAT) has refused an application for a Protection Visa, the Minister may set aside that decision and substitute it with a more favourable decision where he or she considers it is in the public interest to do so. The more favourable decision does not have to be a decision that the AAT had the power to make.

Minister's Guidelines

Guidelines have been set by the Minister to identify unique or exceptional cases that might be referred for the Minister's consideration. All requests for ministerial intervention will be assessed against these guidelines.

Circumstances, where cases do not meet the guidelines for referral, are inappropriate to consider and such requests will be finalised without further processing.

When to make a request

If you have received a decision by a merits review tribunal you might be able to request ministerial intervention. This means the AAT and, for review decisions made before 1 July 2015, the Migration Review Tribunal (MRT) and the Refugee Review Tribunal (RRT).

It is important to note that very few ministerial intervention requests are successful as the benchmark for unique or exceptional circumstances is extremely high.

When Ministerial Intervention can not be granted

Below is a list of circumstances where the Minister's powers are not available:

there is no review decision by a merits review tribunal
a Minister has already intervened to grant a visa
a tribunal has found that it does not have jurisdiction to review a decision
a tribunal has found that the review application was made outside the time limits
a tribunal has returned your case to us for further consideration and one of our decision-makers has made a subsequent decision on your case

You will be informed in writing if your request cannot be considered under the Minister’s public interest powers for one of these reasons.

When Ministerial Intervention can be granted

The Minister is most likely to consider exercising his or her discretionary powers on cases with:

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 benefits that would result from you being permitted to remain in Australia.
Circumstances not anticipated by relevant legislation; or 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.

Note that this list is not exhaustive. Providing documents or meeting one of the unique or exceptional circumstances does not mean that your request will be successful.

Visa Status

The Minister expects all applicants to hold a valid visa permitting them to reside in Australia when the application is made and throughout the processing of the Ministerial Intervention application. Requests from people in the community who are unlawful non-citizens will not be considered. This means that you must hold a bridging or other visa, or have applied for a Bridging visa C, Bridging visa D, or Bridging visa E.

If you are the partner of an Australian citizen, permanent resident, or eligible New Zealand citizen you could be eligible to make an application for a Partner visa even if you have been refused another type of visa while in Australia. The Minister has indicated that it is inappropriate to consider ministerial intervention requests from a person who may be eligible to apply for a Partner visa.

Contact us if you need further information regarding Ministerial Intervention!