My AAT was unsuccessful, what’s next? Ministerial Intervention
In our previous blogs, we explained that when a visa is refused by the Department of Immigration (DIBP), you can take the decision on review to the Administrative Appeals Tribunal (AAT) and then potentially to the Federal Circuit Court, if a legal error has been identified. This blog will explain another option you have if your review at the AAT or the court was unsuccessful.
Ministerial Intervention Requests
If your application was refused by the AAT, you will have the right to access the Minister of Immigration directly under his personal intervention powers allowed under the Australian Migration Act . You can only lodge your request after the AAT has made a negative decision on your review case. Accessing the Minister can also be done if you are unsuccessful at the court or parallel to your court case. Contrary to a court, the Minister will not consider legal errors in the AAT decisions, but will make a decision after considering what is in the public interest. The Minister is the only one who can decide what is and what is not in the public interest and he does not have to give reasons for his decision.
Ministerial Intervention Procedures
How to make a Ministerial Intervention Request
There is no prescribed form for a ministerial intervention request but your request should be in writing and posted or email to the Ministerial intervention unit. Also you should attach strong supporting documents with your request. Ministerial Intervention requests has no filing fee.
You can contact our lawyers at Teleo to assess the AAT decision and assist you with your ministerial request.
Ministerial intervention requests should be made in accordance with the Ministerial intervention guidelines, otherwise the request will not be considered by the Minister. The Minister then has the liberty to make any decision he/she wishes to decide your case. Practically, the Minister intervenes in a very small proportion of requests. The vast majority of requests are refused at the Department of Immigration level even before they get to the Minister.
Who cannot lodge a request for Ministerial Intervention
The Minister’s powers will not be available if the following applies to you:
- If your case was not reviewed at the AAT or if a decision by a merits review tribunal was not made yet;
- If a Minister has already intervened/ made a decision in your earlier request (even if it is a different Minister for Immigration)
- If the tribunal has found that it does not have jurisdiction to review a decision
- If the tribunal has found that your review application was made outside the time limits
- If the tribunal has remitted your case, i.e. your review application was successful and the Department has made another decision on your application.
Types of unique or exceptional circumstances
The Minister in his guidelines explains the types of unique/exceptional circumstances for cases that may be escalated/ referred to him. If your case falls under the following categories, you may have a choice to access the Minister.
This is a list of some of the unique/exceptional circumstances that need to apply to your case:
- 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.
- 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’s decision
If the Request does not fall under guidelines
If your case does not fall under these guidelines, the Department of Immigration will refuse to escalate your request to the Minister and will be treated as ‘inappropriate to consider’. If your request is unsuccessful, as the last resort you may not have any other legal options and you might be expected to depart Australia. You should always ensure that you have a valid visa in Australia, otherwise you may be detained and removed from the country. If your Ministerial Intervention Request was unsuccessful, contact us to see what other options you may have to return to Australia.
If the Request falls under the accepted guidelines
If the Department accepts your request and consider it according to the guidelines, your request will then be considered by the Minister. In order for the Minister to successfully consider your case, you must have unique or exceptional circumstances.
You will have a chance to submit any further supporting documents before your request is finalised. Whilst your request is being decided, you should ensure that you have a valid visa that allows you to be in Australia during this process.
If the Minister then decides that it is in the public interest to intervene in your case, he can make one of the following decisions:
- Grant you the visa you applied for;
- Grant you another temporary visa; eg. a substituted visitor visa
- Grant you a permanent visa if you are eligible for one;
- Make any other decision.
If you are successful, you may be granted a visa to stay in Australia either temporarily or permanently.
- Australian visas and court system are more complex than what you may think. We recommend you seek legal advice before lodging an application.
- If you are holding a bridging visa, it will expire 28 days after the AAT decision. You may apply for a bridging visa E once you file a Ministerial Intervention request.
- A very small proportion of cases are actually referred to the Minister and an even smaller portion of cases succeed.
- A ministerial intervention refusal decision will have an impact on your immigration status. Please contact us for more information.
About the authors
This article was written by Marial Daniel, a solicitor and a registered migration agent (MARN: 1575322) of Teleo Immigration Specialists.
Teleo has successfully represented thousands of applicants over the past 10 years, including complex matters, visa cancellations and review applications.
The director of Teleo Immigration Specialists, Dr Etienne Hugo (MARN: 0004435) has over 17 years of Australian immigration experience and is one of only 35 accredited specialists immigration lawyers in New South Wales. Etienne is admitted as a lawyer in NSW and also the High Court of Australia. He was awarded both his BLC and LLB degrees with distinction and subsequently completed a LLD (Doctor of Law degree) from the University of Pretoria. He obtained his Immigration Law certification from UTS with distinction. Dr Hugo is a Fellow of the Migration Institute of Australia and regularly presents papers on Immigration Law. He has also taught at ANU in the graduate diploma for Immigration since 2006.
If you wish to seek advice or apply for an Australian visa, please contact us on firstname.lastname@example.org .
DISCLAIMER: Immigration law is complex and is subject to constant regulatory and policy change by the Department of Immigration. The information provided here may therefore be out-dated and no longer accurate. The information provided above is a general guide only – it is not tailored for your specific circumstances or immigration purposes and you must under no circumstances rely on this information for immigration planning or the lodgement of an application with the Australian government or related bodies. In order to ensure your eligibility is accurately assessed and to allow for tactical decision making that would best suit your desired immigration outcome, it is essential that you consult with a capable immigration advisor registered with the relevant Law Society and/or OMARA. We direct new client enquiries to schedule an initial consultation with our office – email: email@example.com. During an initial consultation we have the opportunity to obtain a complete set of facts that will allow us to explore all the available options. Another reason we engage clients within the context of an initial consultation is to protect our firm from potential professional liability which may flow from providing a brief, unconsidered opinion. As a paying client you/ us have the benefit of professional indemnity insurance. Liability limited by a scheme approved under the Professional Standards Legislation.
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