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INTRODUCTION

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. 

CASE STUDY 2 - SUCCESSFUL MINISTERIAL INTERVENTION REQUEST FOR A CITIZEN OF LEBANON

Our client originally entered Australia in 1993 on a work permit which expired in 1994 and has not held a substantive visa since this date. He is well known and respected in the community both in Australia and in Lebanon, however in 1995 he applied for a Protection visa which was refused. Our client sought review in the Refugee Review Tribunal which subsequently affirmed the decision made by the Department of Immigration and Citizenship not to grant him a protection visa.  In 2010, our client made an application for a Medical Treatment visa which again, was refused by the Department of Immigration and Citizenship, the Migration Review Tribunal and the Federal Magistrates Court of Australia.

Our office was not involved in any of the applications that were previously refused. As we believed their were numerous humanitarian issues associated with this case and our client has been in Australia since 1993, we decided it may be feasible to make a request directly to the Minister for Immigration and Citizenship to intervene under the Migration Act. Given our client suffered from a number of health conditions, including diabetes and high blood pressure and also takes medication to treat heart disease and minimise the risk of stroke, we made a submission that the present circumstances in Lebanon would not give confidence that returning to Lebanon at this time would be a happy prospect for our client.

We made a request directly to the Minister that  a more favourable decision is substituted on behalf of our client which we believe would be in the best interests of the Australian public. We argued that -

  • Our client has spent 18 years in Australia and has refused to return to Lebanon under any circumstances. As a result, he has not seen his wife and children since initially entering Australia. Our client’s initial protection visa application was refused on the basis his claims were “implausible and far fetched,’’ however the fact that he has made every attempt to avoid returning to Lebanon over an 18 year period adds further weight to whether or not he genuinely held a well founded fear of persecution, which could have been established in the event the initial decision maker never reached the above conclusion.
  • Our client suffers from numerous heart conditions, that can be aggravated by the anxiety associated with living in an unstable region and potentially having no home to enter.
  • Our client is a well integrated member of the Australian community, having obtained numerous references in support of his integrity and character.
  • Access to medical treatment in Lebanon, although readily available, will be costly. Our client is unlikely to obtain community support in Lebanon for treatment of his medical conditions as he has spent in excess of 18 years absent from the country. He is effectively a stranger to the community he once left behind.

The result - the Minister for Immigraion and Border Protection had decided in was in the public interest to substitute a favourable decision and to grant our client a visa.

We are proud to say that this individual has put his Australian immigration troubles behind him and is now a permanent resident of Australia.



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Migration Agent Registration Number 0851787

        

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