Ministerial Intervention

Ministerial Intervention refers to situations in particular migration matters where the Minister, exercising the personal powers conferred by the Migration Act, decides whether to intervene and make a more favourable outcome than the original decision. Common pathways include section 351, section 417 and section 501J, together with certain provisions dealing with restrictions on visa applications or on repeat protection visa applications, such as section 46A and section 48B.

Different provisions apply to different scenarios. For example, section 351 generally relates to an unfavourable decision already made by an administrative review body; section 417 is common in protection visa matters; and section 501J may arise where a protection visa has been refused or cancelled on character grounds. Sections 46A and 48B generally concern legal restrictions on applying for a visa onshore in Australia, the focus being a request that the Minister lift a particular application bar so that the applicant has the opportunity to lodge a specific visa application.

What these powers have in common is this: they are not ordinary application rights, but rather the Minister deciding whether to intervene in the public interest. An applicant may make a request, but the Minister generally has no obligation to consider it, and no obligation to make a favourable decision.

Ministerial Intervention is a special process that stands apart from administrative review and judicial review. Administrative review is concerned with whether a visa decision should be remade; judicial review is concerned with whether a decision is lawful; while Ministerial Intervention is concerned with whether the matter involves an exceptional public interest, humanitarian factors or other unusual circumstances sufficient to support the Minister personally exercising the power to intervene.

For this reason, Ministerial Intervention is generally not suited to re-arguing matters that have already been dealt with at the administrative review stage. The application material needs to explain why the case has moved beyond what an ordinary visa or review process is able to address, and why the Minister’s personal intervention carries public-interest significance.

In most cases, Ministerial Intervention can only be considered once the matter has been dealt with by the Administrative Review Tribunal (ART) and a relevant review decision has been made. The relevant guidance also makes clear that the Minister will generally only consider matters that have already been through the administrative review process; if a matter is still within an ordinary visa application, administrative review or court proceeding, Ministerial Intervention is usually not the appropriate pathway.

If the applicant still has another available visa pathway, can still apply for administrative review, or the matter is still within an ordinary determination process, Ministerial Intervention will generally not be the preferred option. It is closer to a special request at the final stage than a part of the ordinary migration process.

If an applicant makes a Ministerial Intervention request onshore in Australia, visa status is very important. The applicant generally needs to maintain lawful residence status, for example by holding a valid substantive visa or a bridging visa. In some cases, where a visa has already expired, it may be necessary to deal promptly with a Bridging Visa E or other lawful-status issues.

A Ministerial Intervention request does not, in itself, generally extend an existing visa automatically, nor does it mean that the applicant can stop addressing departure, visa expiry or status issues. Even once a Ministerial Intervention request has been lodged, an applicant without a valid visa or lawful-status arrangement may still face migration compliance risk.

Ministerial Intervention is not a remedy for every unsuccessful matter. Generally speaking, where there is no relevant review decision, where the review body considers the matter to be outside its jurisdiction, where the review application was lodged out of time, where the matter still has another ordinary visa pathway, where an identical request is already being processed, or where the Minister has previously intervened and made a decision, it will usually be difficult for the matter to reach the stage of the Minister’s personal consideration.

In addition, if the applicant can still apply for another more appropriate visa, or the matter is still within an ordinary migration process — for example, an outstanding administrative review, court proceeding or departmental remaking process — Ministerial Intervention is generally not suited to bypassing the existing legal pathways.

In Ministerial Intervention matters, the impact on family members is often one of the important considerations. This is particularly so where the matter involves minor children, Australian citizen or permanent resident family members, long-term caring responsibilities, a background of family violence, illness, disability, mental health issues or relationships of high dependency. In such cases the application material generally needs to explain the specific consequences that may follow if the applicant departs.

More common situations include:

Where the matter involves an Australian citizen child, the material generally needs to further explain the child’s age, education, family arrangements and the impact that the applicant’s departure may have on the child’s development and stability of life.

Where the applicant or their Australian family members have serious health issues, age-related factors, mental health risks or ongoing care needs, these may also form an important part of a Ministerial Intervention request. The supporting material generally needs to include medical reports, treatment records, an explanation of care arrangements, expert opinions, and an explanation of the differences in the support available inside and outside Australia.

For example, the applicant may be the primary carer for an Australian citizen relative with high-intensity care needs; or the applicant themselves may, because of their health, trauma or psychological condition, face a clear risk of deterioration after departure. Factors of this kind need to be proven through objective material, not merely through personal statements.

Some matters may involve a special economic, scientific, cultural, social or skills contribution by the applicant to Australia. The relevant material may include long-term employment, professional skills, employer support, an industry shortage, community contribution, business activity, research achievements or cultural contribution.

The focus of a ground of this kind is not simply that the applicant personally wishes to remain in Australia, but whether their continued presence has real significance for Australian society, the economy or the public interest. For example, where an applicant has skills in an occupation in shortage in Australia, is currently working in a relevant role, and can provide qualifications, evidence of employment and employer support material, such circumstances may more readily be taken into account in a public-interest analysis.

Ministerial Intervention may also arise in a protection visa context. For example, although the applicant was unsuccessful through the ordinary protection visa process, there may be new country conditions, humanitarian risks that were not fully addressed, family members engaging protection obligations, or an inability to actually return because the country of origin is uncooperative. Some material also notes that the Minister may consider matters involving an inability to return to the country of nationality, the existence of a protection risk, or a protection visa refused on character grounds where there is nonetheless a risk of harm.

Matters of this kind require a very careful distinction to be drawn between an ordinary protection visa claim and a Ministerial Intervention request. If the matter simply repeats the original protection grounds, without new circumstances, exceptional factors or a basis that may be considered under the Minister’s guidelines, it will generally be difficult to form an effective application.

If the applicant still has another viable visa pathway — for example, the ability to apply for a partner visa, a medical treatment visa or another substantive visa — or if an administrative review or court proceeding is still on foot, Ministerial Intervention will generally not be regarded as the appropriate pathway. Ministerial Intervention is not intended to replace the ordinary visa system, nor to obtain a result ahead of time while other processes are still unfinished.

Before preparing an application, it is generally necessary first to assess whether the existing visa pathways have genuinely been exhausted. If a more appropriate ordinary pathway still exists, a Ministerial Intervention request is very likely not to be referred for the Minister’s personal consideration.

If the applicant has previously lodged a Ministerial Intervention request that has already been considered or refused, lodging an identical or highly repetitive request again will generally be difficult to have accepted. Some guidance also makes clear that where a previous request was refused within a particular period, or where an existing request is still being processed, a repeat request will generally not be referred to the Minister.

A new request generally needs to involve substantive new circumstances — for example, a significant change in a family member’s health, a marked change in a minor child’s situation, a deterioration in conditions in the country of origin, the applicant obtaining important new evidence, or other significant material that could not previously be submitted. Without a new factual basis, a significant change in circumstances or additional evidence, simply resubmitting the same grounds will generally be unlikely to receive further consideration.

Leaving Australia will cause difficulties for one’s life, work, study, family or finances, and this can arise in many migration matters. Ministerial Intervention generally requires exceptional, compelling or unusual circumstances, rather than inconvenience in the ordinary sense.

For example, an impact on job opportunities, a decline in quality of life, difficulty readjusting to the country of origin or the interruption of a study plan will, taken on their own, generally not be sufficient. The application material needs to explain why the hardship goes beyond the usual consequences of an ordinary migration decision, and why the matter has a public-interest, humanitarian or other exceptional basis.

If the applicant has a serious criminal record, a pattern of ongoing unlawful conduct, family violence, sexual offences, violent offences or other matters that may pose a risk to the Australian community, the difficulty of obtaining Ministerial Intervention will generally increase significantly. While certain protection or humanitarian factors may still need to be considered, the application material must directly address community safety, the taking of responsibility, behavioural change, the risk of reoffending and the impact on victims.

Matters of this kind cannot rely solely on emphasising family hardship or the length of time spent living in Australia; they also need to respond directly to why allowing the applicant to remain in Australia would not create an unacceptable risk.

A Ministerial Intervention request generally needs to be submitted in writing, clearly setting out which power the applicant is asking the Minister to intervene under, which processes the matter has already been through, why it meets the Ministerial Intervention guidelines, and what exceptional facts support the request. Some material also notes that a request generally needs to include the relevant personal information, departmental file number, the family members the application concerns, the applicable provisions and the supporting material, and to ensure that any non-English material has been translated.

In preparing the material, it is best to avoid writing a Ministerial Intervention request as an ordinary letter pleading for leniency. An effective application generally needs to be organised around the grounds that may be considered — for example, the serious impact on Australian family members, the interests of minor children, medical and care needs, an inability to return to the country of origin, a special contribution to Australia, long-term residence or other unusual circumstances.

The strength of a Ministerial Intervention request depends to a large extent on the quality of the evidence.

Personal statements should be corroborated by objective evidence. In matters involving family, health, education, employment or care factors, the corresponding supporting material often plays a decisive role.

In matters involving minor children or Australian citizen children, the evidence should not stop at birth certificates or passports. It can include:

school letters and opinions from teachers or counsellors
community support letters
medical or psychological material
an explanation of family care arrangements
and material able to show that the child has already established a stable life in Australia can all be of practical help. In some matters, support from the local community, employers or public representatives can also be brought into the application material as part of the overall public interest and community ties.

Ministerial Intervention matters generally require a combination of factors that together make up an overall exceptional case — for example, family impact, the interests of minor children, medical needs, a background of long-term residence, community ties and a contribution to Australian society.

There is no fixed processing time for Ministerial Intervention. Processing periods can vary considerably from matter to matter, and some matters may involve a long wait. Lodging a request does not, in itself, automatically resolve the applicant’s visa status, nor does it necessarily bring with it work rights or a lawful residence arrangement.

Visa-status management is therefore very important. Applicants need to confirm whether they still hold a valid visa, whether they need to apply for a Bridging Visa E, whether there is a requirement to depart, and whether they are subject to restrictions on work rights or other visa conditions.

This step is especially important in matters where there has previously been unlawful residence, visa expiry or a procedural error, because the status issue itself may further affect work, family finances and subsequent application arrangements.

In practice, many applicants only begin to consider Ministerial Intervention after experiencing a visa refusal, an unsuccessful review, a visa expiry or even unlawful residence. At that point, in addition to preparing the Ministerial Intervention material itself, it is also necessary to assess the current visa status and subsequent status arrangements at the same time.

Not every Ministerial Intervention request is actually placed before the Minister personally. Many requests are first subject to an initial screening by the Department in accordance with the Minister’s guidelines. Only matters that meet the relevant guidelines and have a sufficient basis of exceptionality or public interest may be referred to the Minister or Assistant Minister for further consideration.

If a request is referred, this does not mean the application will necessarily succeed. The Minister retains the final decision on whether to intervene. Even where a matter involves compelling humanitarian factors, this does not mean the Minister must make a favourable decision.

If a request does not meet the guidelines, it may be finalised by the Department directly and will not reach the stage of the Minister’s personal consideration. If the Minister or the relevant department decides not to intervene, the applicant generally needs to assess whether any other legal or visa pathways remain.

After Ministerial Intervention has been refused, lodging a further request generally requires the support of new, substantive material. Resubmitting the same content will usually be unlikely to change the outcome.

If the Minister decides to intervene, they may make a more favourable outcome than the original decision — for example, substituting a decision for an administrative review decision, allowing the applicant to lodge a particular visa application, or making another favourable arrangement under a particular provision. The specific outcome depends on the ministerial power used and the type of matter.

For an applicant, a successful Ministerial Intervention generally means the matter receives a special opportunity for treatment outside the ordinary process. Outcomes of this kind, however, are very limited and cannot be relied upon as a routine method of migration planning.

NS Legal can assist clients to assess whether there is a basis for a Ministerial Intervention request, to determine whether the matter already meets the procedural prerequisites, and to identify the exceptional factors that may be considered under the Minister’s guidelines.

We can assist clients to prepare structured application material, including a statement of family impact, material on minor children, medical and mental health evidence, care arrangements, evidence of long-term residence, employment and community contribution material, evidence of an inability to return to the country of origin, and other documents supporting the public interest or exceptional humanitarian factors.

If you have already completed the administrative review process and currently have no other ordinary visa pathway, we recommend contacting the NS Legal team early to assess whether Ministerial Intervention is suitable for your situation, and to address visa status, bridging visas and subsequent risks.