Ministerial intervention power to grant a visa – if you are in Australia and you do not hold a valid visa for whatever reason, you may request the Minister under s 195A to grant a visa most appropriate to your situation.
Ministerial intervention power to grant a visa – the discretionary powers given to the Minister are personal and non-compellable powers as there is no duty for the Minister to consider using any of the powers or has a duty to use any of the powers.
Normally the Minister will only intervene if the he or she thinks it is in the public interest to do so.
Ministerial intervention power to grant a visa
If you do not have a valid visa, you can request the Minister to use his discretionary power under s 195A to grant you a visa without applying for it.
If you are an unlawful non-citizen and in immigration detention under s 189, you may request the Minister to exercise his discretionary power under s 195A to grant you a visa without applying for it. Similarly, the Minister may grant you a visa of a particular class even if you have not requested or applied for it. The Minister may grant you a substantive visa or a bridging visa, including a Removal Pending Bridging visa when your removal is not reasonably practicable in the foreseeable future.
The Minister’s s 195A power is commonly known as the Minister’s detention intervention power.
The Minister will only usually use his s 195A power if it is in the public interest to do so. His intervention power is personal and non-compellable. He is under no legal obligation to exercise or consider exercising that power in a particular case.
This power is distinct from the Minister’s other intervention power under ss 351, 417 and 501J. Requesting for Ministerial intervention under s 195A does not prejudice other Ministerial interventions under other provisions of the Act.
However, the Minister will not consider using his s 195A power if you are able to apply and can be granted a visa through normal visa application processes.
Guidelines for referral of cases under s 195A
If you are in immigration detention, you can request the Minister to exercise his personal non-compellable s 195A power if you meet 1 or more of the following criteria:
- You have individual needs that cannot be properly cared for in a secured immigration detention facility. You will need confirmation from an appropriately qualified professional treating you or a person appointed by the Department,
- There are strong compassionate circumstances such that a failure to recognise them would cause irreparable harm and continuing hardship to an Australian citizen or an Australian family unit, or there is an impact on the best interests of a child in Australia.
- You do not have any outstanding primary or merits review processes in relation to your claims to remain in Australia and your removal is not reasonably practicable for reasons, including the below:
- Your identity or nationality has not been positively established
- Your home country refuses to recognise you as a national
- Your home country refuses to accept your return or issue you with a travel document to facilitate your return
- You cannot return to your home country because of ongoing conflict and/or policy regarding involuntary removals
- There are other compelling or compassionate circumstances justifying the Minister to use his public interest powers and there are no other intervention powers available to grant a visa
Before the Department refer your ministerial intervention power to grant a visa request to the Minister, the delegate must balance the above considerations against any adverse information about you arising, for e.g., from:
- Whether you pose a risk to another person or group in Australia, including health or security risks
- Whether you have a criminal history, both here and overseas, including criminal charges or convictions
- Your behaviour in immigration detention and/or the community
The Minister himself is not bound by the guidelines.
Cases that cannot be brought to the Minister’s attention
The Minister generally do not expect the following cases to be referred to him for consideration of his s 195A detention power or his ministerial intervention power to grant a visa :
- ASIO assesses the person to be directly or indirectly a risk to security
- Visa refused or cancelled under s 501 (failing character test)
- Transitory persons brought to Australia for temporary processes, including brought here for medical treatment, legal proceedings or transiting to a third country
- People with no outstanding immigration matters who are not cooperating with efforts to remove them
- People whom the Minister have previously considered under any Ministerial powers, or have previously been found not to meet any of the Ministerial intervention guidelines, and who have had no significant changes to their circumstances
- People who wish to change or have changed their Temporary Protection visa application to a SHEV, or vice versa
- Any other group of people as directed by the Minister
Information that the Minister will consider
Usually the Department will present the following information to the Minister when he considers whether to exercise his s 195A power:
- Your immigration history
- Details and nature of your family members
- Your history of compliance, and likelihood of future compliance, with Australian laws
- Your health history
- Your criminal and offending history
Making a Ministerial intervention request under s 195A
Your ministerial intervention power to grant a visa request under s 195A will initially be assessed by the Department using the Ministerial guidelines. The Minister will only consider whether to exercise his s 195A if the Department referred the request that meet the Ministerial guidelines.
The Minister will not consider exercising s 195A power if the request is not referred by the Department.
If the Minister choose to consider a s 195A request, he may ask for health, character or other assessments to be carried out. He may also request for an Assurance of Support to be arranged.
If the Minister decided to exercise his s 195A power, the person will be notified of the outcome in writing.
Removal policy
If you are in immigration detention and liable for removal, s 198 imposes an obligation on the Department to remove you remove you as soon as reasonably practicable even when you have made a s 195A Ministerial intervention request.
Ministerial intervention request is not an application for a visa and has no effect on the Department’s removal obligations.
Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) to help you with ministerial intervention power to grant a visa request, or click here to learn more about Australian visas.
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This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.
