It’s a hot topic in the news at the moment that the Minister has intervened with someone’s visa status, ruling for a favourable result. What exactly are the Minister’s powers? Should you make a request to the Minister? The Minster, The Hon Mr. Dutton, has his own guidelines drawn up in advance so everyone knows what the playing field is and that the decision making process is transparent. The following information is taken from those very guidelines and considering what you have heard in the news lately, our readers should find them very interesting.
Keep in mind the hypothetical scenario of an Au Pair girl, caught in Australia working whilst holding a Tourist Visa which does not have permission to work. Her visa is subsequently cancelled but she appeals that decision to the AAT and remain in Australia for the outcome of that review. The review is negative and the AAT affirms the decision of the department that her visa should be cancelled. She then approaches a migration agent (like me) who asks her case to presented to the Minister. So what should I say to her? Read on.
Should the Minister believe that it is in the public’s interest to do so, the Minister may substitute a decision made by Administrative Appeals Tribunal (AAT). If the following exist circumstances exist, the Minister is unlikely to make a favourable intervention. Such circumstances include:
- The applicant having not complied with the conditions on a previous visa
- The applicant having provided false or misleading information to the Department or any other relevant authority, such as an assessing authority e.g. VETASSESS or a RDA
- The applicant has at some point been an unlawful citizen
There are more situations in which you it is not appropriate to request for Ministerial intervention that will be covered further in the article. Keep in mind that if another visa pathway exists for the applicant, including those that required the applicant to apply for a visa from overseas, it is highly unlikely that the Minister will intervene.
Otherwise, through the Minister’s review, there are expectations on the applicant:
- The applicant remains a lawful non citizen when they make their intervention request and remain a lawful non citizen until the request to the Minister is finalised
- The applicant ensures that their travel documents are available ad valid
- The applicant continues to maintain communication with the Department and assist with any enquiries, particularly those concerning their identity
- The applicant should continue to make their arrangements to leave Australia whilst their case is being reviewed by the Minister so that is their request is unsuccessful, they will leave Australia
Unique or exceptional circumstances
Cases that the Minister may consider review would include those where:
- 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 the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person
- Exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia
- 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 a particular case
- The Department of Home Affairs (DOHA) has determined that the person cannot be returned to their country/countries of citizenship or usual residence due to circumstances outside the person’s control
- A person’s particular circumstances or personal characteristics provide a sound basis for believing that there is a significant threat to their personal security, human rights or human dignity if they return to their country of origin, but the mistreatment does not meet the criteria for the grant of any type of protection visa. For example, systematic harassment or denial of basic rights available to others in their country, or the person has experienced torture or trauma in their country of origin and is likely to experience further trauma if returned to that country
- The person is excluded from the grant of a protection visa or has had a protection visa cancelled or refused on character grounds and their circumstances have been assessed as engaging Australia’s non-refoulement obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm
In simpler terms, this is where either unfortunate and unforeseeable circumstances has resulted in change of a person’s situation in which they would be put in danger, or where their refusal of a visa would, to an extenuating degree, hurt the applicant, an Australian citizen, permanent resident or Australian family unit, or if Australia would significant benefit from the applicant’s presence in Australia, economically, scientifically, culturally or otherwise, that applicant should present their case to the Minister for review.
Factors in considering a case
The factors that would affect the review of a case by the Minister, whether positively or negatively, would include:
- Circumstances that may bring Australia’s obligations under the Convention on the Rights of the Child into consideration, including the best interests of the child – which must be treated as a primary consideration, but can be balanced against other primary considerations
- Circumstances that may bring Australia’s obligations under the International Covenant on Civil and Political Rights into consideration, particularly issues of family unity, which can be balanced against other rights and interests including the integrity of Australia’s migration programme
- Whether the continued presence of the person in Australia would pose a threat to an individual in Australia or to Australian society or security or may prejudice Australia’s international relations
- Whether there are character concerns in relation to the person, particularly concerns related to criminal conduct
- Information about a person’s history of compliance with Australian laws, including migration laws, such as:
- Any offence or fraud against the migration or citizenship legislation
- Any failure to comply with their visa conditions
- Any periods as an unlawful non-citizen in the community
- Their history of cooperation and engagement with the department to resolve their immigration status, particularly in relation to identity and travel documents
- Details of any ongoing court proceedings challenging a decision related to the case and any outcome available before I consider the case
- The level and nature of the person’s integration into the Australian community and the length of time they have been in Australia, both as a lawful and unlawful non-citizen.
When you should not request for Ministerial intervention
Why is it important to understand when you should not request for the Minister’s intervention? After all any attempt to improve your chances should be attempted. However this may create false expectations and it is incredibly important that you do not, in the course of hoping on an intervention, create a situation in which further applications are made more difficult. Understanding when it is not appropriate to make a request will allow you to focus on another visa pathway.
- If the AAT has not as yet made a decision on your application, the Minister cannot intervene.
- The request is made by a person who is not the subject of the request or their authorised representative
- The person is in the community and:
- Is an unlawful non-citizen and remains an unlawful non-citizen throughout the course of their Ministerial intervention request; and/or
- Does not cooperate in ensuring that a valid travel document is available (or has not satisfied the Department that they are stateless)
- The person has been found not to satisfy a fraud-related Public Interest Criterion for the grant of a visa
- The person’s visa has been cancelled because they breached their visa conditions
- The person has had a visa refused because they did not comply with the conditions of a previous visa
- The person has been refused a visa or has had a visa cancelled on character grounds
- ASIO has determined that the person is a direct or indirect risk to national security through issuing the person with an Adverse Security Assessment (ASA) which remains in effect
- The person could apply for a Partner visa onshore but is subject to an 8503 condition (which specifies that after entering Australia, the person cannot be granted another substantive visa other than a protection visa while they remain in Australia) and a request for a waiver of that condition has not been sought or decided
- The person may be able to apply for a Partner visa onshore
- The person’s application for a Partner visa onshore, as prescribed under regulation 2.12(1) of the Regulations, has been refused and the person is now barred from applying for a Partner visa onshore
- The person has left Australia
- The person has an ongoing application for a substantive visa (either onshore or offshore) with my Department
- The person has an ongoing application for merits review of a visa decision with a relevant review tribunal
- The person has had a remittal or a set aside decision from a relevant review tribunal or a court
- The person’s review tribunal decision was in relation to the refusal or cancellation of a Bridging visa E
- The person has an ongoing Ministerial intervention request under any of the powers covered by these guidelines
- A Notice of intention to remove has been issued to the person, and the Ministerial intervention request has not been initiated by the Department
- The person holds a Bridging visa E with visa condition 8512, which specifies that the person must leave Australia by a specified date
- The request raises claims only in relation to Australia’s non refoulement obligations
Read: Conditions 8503 and 8558
The advice I need to give for the Au Pair sitting in my office? Well of course she has breached the conditions of her visa and whilst she may have friends in high places that can call the Minister and put in a good word for her, as a Migration Agent I am bound to tell her that she would normally have no chance of success.
However she can instruct me to lodge the request tho the Minister despite my advice for she obviously knows something about her contacts in Australia that I do not. In reality I don’t want to know anyway, for as far as most people in this country think, the rules should apply to everyone equally and fairly. As one former Police officer to another Mr. Dutton, please keep this in mind.
If you have a genuine case and need help to negotiate these guidelines, please make a time to come and see us.
Book a consultation to speak one of our highly experienced migration specialists. Call +61 2 8054 2537, 0434 890 199 or book online.