When refused a visa to remain in Australia, you are expected to depart or to seek alternative arrangements within the confines of the immigration law.
The Minister for Immigration and Border Protection has the power to substitute, for a decision made by one the review tribunals a decision that is more favourable to yourself if it is in the public interest to do so. These powers are referred to the Ministers ‘public interest powers’.
If you have unique or exceptional reasons why you cannot depart you can request that the Minister for Immigration and Border Protection intervene in your case. To be eligible, you must also have received a negative decision by an immigration review tribunal, such as:
- former Migration Internal Review Office (MIRO - ceased operation on 31 May 1999)
- former Immigration Review Tribunal (IRT - ceased operation on 31 May 1999)
- Migration Review Tribunal (MRT - commenced operation on 1 June 1999)
- Refugee Review Tribunal (RRT) and
- Administrative Appeals Tribunal (AAT).
The Minister cannot intervene if you have an ongoing judicial review matter before the courts.
The best interests of the Australian public is served through the Australian government responding with care and compassion where your case may involve unique or exceptional circumstances.
Whether or not your case is in the public interest is a matter that can only be confirmed by the Minister. The job of your migration agent or immigration lawyer is to prepare detailed submissions and to articulate your facts in accordance with the law so that the Minister is able to exercise his public interest powers and to substitute a more favourable decision on your behalf.
Notwithstanding the above, the following factors may be relevant in assessing whether or not your case has unique or exceptional circumstances.
- Your circumstances which provide a sound basis for believing that there is a significant threat to your personal security, human rights or human dignity should you return to your country of origin.
This may include:
- circumstances where you may have been or may be individually subjected to a systematic program of harassment or denial of basic rights available to others in your country, but where such mistreatment does not amount to persecution under the Convention relating to the Status of Refugees 1951, or has not occurred or is not likely to occur for a Convention reason
- circumstances where you may have been refugees at time of departure from your country of origin, but due to changes in your country, are no longer a refugee, and it would be inhumane to return you to your country of origin because of your subjective fear. For example, a person who has experienced torture or trauma and who is likely to experience further trauma if returned to their country.
- circumstances that may bring Australia's obligations as a party to the International Covenant on Civil and Political Rights (ICCPR) into consideration. For example, iissues relating to Article 17 and Article 23.1 of the ICCPR are raised. Article 17(1) provides - "No one shall be subjected to arbitrary or unlawful interference with his privacy, family, or correspondence, nor to unlawful attacks on his honour and reputation". Article 23.1 provides - "The family is the natural and fundamental group unit of society, and is entitled to protection by society and the State"
- issues relating to Article 23.1 may be balanced against other considerations, including countervailing considerations.
- strong compassionate circumstances such that a failure to recognise them would result in irreparable harm and continuing hardship to an Australian citizen or an Australian family unit (where at least one member of your family is an Australian citizen or Australian permanent resident)
- circumstances that may bring Australia's obligations as a party to the Convention on the Rights of the Child (CROC) into consideration. Article 3 of the CROC provides - "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration." While the best interests of the child must be treated as a primary consideration, this may be balanced against other primary considerations.
- circumstances that the legislation does not anticipate
- unintended consequences of Australian immigration law
- circumstances where the application of relevant legislation leads to unfair or unreasonable results in your case
- circumstances where exceptional economic, scientific, cultural or other benefit to Australia would result from you being permitted to remain in Australia
- the length of time you have been present in Australia (including time spent in detention) and your level of integration into the Australian community
- compassionate circumstances regarding your age and/or health and/or psychological state such that a failure to recognise them would result in irreparable harm and continuing hardship to you and your family.
- where the Department of Immigration has determined that you, through circumstances outside your control, are unable to be returned to your country/countries of citizenship or usual residence
- your request is made in relation to Australia's non-refoulementobligations which would generally be considered through the Ministers powers but:
- you are excluded from the grant of a PV or had a substantive visa cancelled or refused on character grounds; and
- your circumstances have been assessed as engaging Australia's non-refoulementobligations under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the International Covenant on Civil and Political Rights (ICCPR) or CROC as stipulated in the Migration Act 1958.