Ministerial intervention under sections 351, 417 and 501J

Ministerial intervention under sections 351, 417 and 501J – if your visa application has been refused and the AAT has affirmed the Department’s decision to refuse you the visa, you may request the Minister under s 351 or 417 or 501J to substitute to a more favourable.

Ministerial intervention under sections 351, 417 and 501J – 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 substitute AAT’s decision

Under the Migration Act 1958, the Minister for Home Affairs, or Minister for Immigration, can substitute a more favourable decision for a decision of a review of the AAT if the Minister considers that it is in the public interest to do so.

The Minister’s personal public interest are discretionary and non-compellable. The Minister is not legally bound to exercise or to consider exercising these powers (s 351(7); s 417(7) and s 501J(8)).

The Minister has issued Ministerial guidelines to identity cases involving unique or exceptional circumstances where it may be in the public interest to substitute a more favourable decision (Part 5-reviewable decision under s 351; Part 7-reviewable decision under s 417; and protection visa refusal or cancellation under s 501J ) to an AAT’s decision.

The power to substitute a more favourable decision under ss 351, 417 and 501J are distinct from the Minister other public interest powers such as ss 48B (lifting the bar to lodge a further protection visa application), 195A (granting detainee visa whether an application is lodged), 197AB (allowing a person to reside at a specified place instead of being held in detention centre) and 197AD (revocation or variation of residence determination in relation to s 197AB).

When will the Minister use the ministerial intervention under sections 351, 417 and 501J power?

The Minister will only consider using his discretionary public interest power where:

• The AAT has made a decision, for e.g., a decision under s 349 is necessary to trigger the power under s 351
• The decision of the AAT continues to exist, and a subsequent decision has not been made (however, the Ministerial guidelines indicate that such a case would generally be inappropriate to consider)
• The date of the AAT decision falls within the operation of the Act

What is and what is not in the public interest is for the Minister to decide.

The ministerial intervention under sections 351, 417 and 501J power can only be exercised by the Minister personally. The Minister cannot delegate that power to any other person. However, all the aspects of identifying, examining and progressing requests to finalisation may be conducted by others at the Minister’s direction.

The Ministerial guidelines identify cases which the Minister does not wish to consider. Any cases not referred to the Minister for consideration will be finalised by the Department. This does not mean that the Minister has delegated his public interest powers.

Minister does not have power to act

The Minister does not have the power to substitute a more favourable decision if:

• The AAT has found that it does not have jurisdiction to review a decision
• The AAT had found that the review application was invalid, for e.g., application made outside the time limits
• The AAT decision is not an AAT-reviewable decision or a protection visa decision
• The person in the request is not subject of a relevant AAT review

What is a more favourable decision?

Generally, when the Minister exercised the ministerial intervention under sections 351, 417 and 501J power, the decision must be more favourable to than the decision made by the AAT. For e.g., if the AAT affirmed the Department decision to refuse to grant a visa, the Minister’s decision to grant a visa, whether or not the subject of the request agreed with the grant decision or whether or not the visa granted was the same as that originally applied for, would be more favourable to than the AAT’s decision.

Is the Minister bound by the Act or Regulations?

When substituting a more favourable decision for that of the AAT, the Minister is not bound by Subdivision AA (applications for visa) or AC (grant of visas) of Division 3 of Part 2.

The Minister is bound by Subdivision AF (bridging visas) – the Minister cannot intervene to grant a bridging visa unless the person satisfies the criteria for the grant of a bridging visa.

The Minister is bound by s 41(1), if the Minister grants a visa that has  mandatory visa conditions, the Minister does not have the discretion no to impose such conditions. Similarly, the Minister cannot impose a condition that is not prescribed for that subclass of visa.

The Minister may exercise the public interest powers even if AAT did not have the power or jurisdiction to make the decision (s 351(1); s 417(1)).

The Minister may also substitute a more favourable decision regardless of the usual requirements for application and the grant of visas. For e.g.

• It is not necessary for the person to satisfy the criteria for the visa in question (for e.g. qualifications, English language, sponsorship, age, AoS or health)
• Various bars on the making of valid applications do not apply

Who can make a request?

• By a person or their representative (form 956 or form 956A must be attached to the request)
• By the Department when it considered appropriate or where removal is imminent, or the person is critically ill and unable to give authorisation
• By the AAT. If referred by AAT, the Department is to initiate a request and assess the case in accordance with the Ministerial guidelines.

Bridging visa granted with request?

Whether a bridging visa or removal of No Work condition is to be granted is decided by the Compliance officer deciding the visa application.

How many requests can be made?

You may make repeat ministerial intervention under sections 351, 417 and 501J requests if the Department is satisfied that there has been a significant change in circumstances since the previous request(s) which raises new, substantive issues that were not provided before or considered in a previous request; and the Department assesses that these new, substantive issues present unique or exceptional circumstances as described in the Ministerial guidelines.

What information will be considered by the Minister

• Your details and any other persons included in the request
• Whether you are in detention, length of time in detention, incidents in detention
• Recommendations of the Ombudsman or reviews of the AAT
• Immigration history, including ongoing migration-related litigation
• Significant health issues
• Support for the request
• Debts to the Commonwealth
• If in immigration detention, any departure/removal issues
• Whether you are affected by ICCPR (International Covenant on Civil and Political Rights), particularly issues relating to family unity or CROC (Convention on the Rights of the Child), particularly the best interests of the child which must be treated as a primary consideration
• Whether your continued presence in Australia would pose a threat to an individual or the community or security or may prejudice Australia’s international relations
• Whether there are character concerns, particularly concerns relating to criminal conduct
• Your history of compliance with Australian laws, including migration laws
• How long have your been an unlawful non-citizen in the community
• Your history of cooperation and engagement with the Department to resolve your immigration history
• The level and nature of your integration into the Australian community and the length of time you have been in Australia, both as a lawful and unlawful non-citizen

If there are children involved, CROC assessment will include:

• Length of time the child spent in Australia
• Integration of the child into the Australian community
• Whether the child is an Australian citizen or PR
• Likelihood of the child being able to adapt to life in their home country (such as language, culture and stage of schooling)
• Medical conditions/disabilities requiring treatment in home country
• Views of the child
• Degree of family or other support available to the child within Australia contrasting home country
• Impact on family unity including the nature of relationship with family members including amount of contact, emotional, physical and financial dependence
• Whether the child is likely to relocate if applicant is required to depart including the child’s ability to enter, reside and integrate in home country
• Likely effect on the child of any separation from the applicant, including the length of separation, ability of the child to visit or maintain contact in other ways
• Family or other support or care arrangement available to the child if the child were to remain in Australia and the applicant departs
• The potential for the person to be able to come to Australia in the future

Non-refoulement obligations

Australia’s non-refoulement obligations arise under:

• The Convention relating to the Status of Refugees (Refugee Convention)
• The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)
• The International Covenant on Civil and Political Rights (ICCPR) and
• The Convention on the Rights of the Child (CROC)

The non-refoulement obligations under the CAT, ICCPR and CROC are absolute. Regardless of any other considerations, Australian has an obligation not to forcibly remove a person to their home country where they will face a real risk of torture or cruel, inhuman or degrading treatment or punishment or where they will be arbitrarily deprived of their life. Unless the person has a character concern which is likely to result in an exclusion or refusal of any further protection visa application. For e.g.

• Has had a protection visa refused and affirmed by the AAT after having had another substantive visa cancelled under s 501
• Is excluded by s 5H(2) because having committed against peace, a war crime or a crime against humanity or committed a serious non-political crime before entering Australia, from the grant of a protection visa and the decision has been affirmed by the AAT
• Is ineligible for the grant of a Protection visa (s 36(2C) – committed a crime against peace, a war crime … similar to s 5H(2) … and is a danger to Australia security or Australian community
• Has had a protection visa cancelled or refused on character grounds (under s 501, s 36(1B), s 36(1C)) and the decision has been affirmed by the AAT)

In the person is affected by the above, they should request for Ministerial intervention under s 501J or s 195A, or a joint s 417/s 195A request. However, the Minister does not have the power to intervene under s 417/ s 501J who is excluded from being granted a Protection visa and has not sought AAT merits review. Instead they should request for Ministerial intervention under s 195A.

Types of visa that can be granted

Generally, the Minister will not grant a visa that is constrained by availability of places under a program (requiring queuing) even if that visa is the closest fit. This is because granting such a visa may displace another applicant already queued for the visa.

Permanent visa options

As a general rule, if the Minister exercised the ministerial intervention under sections 351, 417 and 501J, the Minister will usually, if a permanent outcome is required, grant a Special Eligibility category Class CB Subclass 151 visa.

If you are onshore, you will be granted an onshore visa subclass. If you are offshore, you will be granted an offshore visa subclass.

Generally, a Partner visa will not be recommended to the Minister this is because both Partner (Temporary) and Partner (Residence) visa is made on the same application form. If the Minister decided to grant a Partner (Temporary) visa, there will be no application for the Partner (Residence) visa. In addition, granting a Partner visa would not establish the genuineness of the relationship.

Temporary visa options

If a temporary outcome is required, the Department will recommend a substituted Subclass 600 visa for the Minister to consider granting. If you are affected by s 48 bar and your Ministerial intervention is successful, the Minister may also grant you a substituted Subclass 600 visa. This visa may also have work rights if the Minister is satisfied that you have  compelling personal reasons to work. Granting you this visa will lift the s 48 bar enabling you to apply for another visa if you satisfy the visa criteria for the grant of that visa.

If a temporary visa is granted, it will exhaust the Minister’s intervention power.

Affected by 8503 condition

If your last visa is subject to the 8503 condition, you will have to apply to the Department for the No Further Application condition to be waived before making a request for Ministerial intervention. In very limited circumstances the Minister will consider waiving the 8503 condition and to grant you a temporary visa.

Substituted Subclass 600 visa

If you are granted a substituted Subclass 600 visa, you may apply for a Parent or Contributory Parent visa, if eligible and the following will not apply:

• Balance of family test
• Age requirement, however, the age concession of a Subclass 884 (Contributory Parent (Temporary)) visa does not transfer to a Subclass 864 (Contributory Aged Parent) visa. This temporary then permanent Contributory Parent pathway may not be suitable for some as they still need to meet the age requirement.
• PIC 4007 (health waiver) instead of PIC 4005 (no health waiver)
• PIC 4004 (payment of debts to the Commonwealth) but the debts will still remain at law.

Even though the above concessions apply to a holder of a substituted Subclass 600 visa, other criteria must be satisfied for the grant of that visa.

If you intend to apply for another substantive visa, you must do so before the substituted Subclass 600 visa ceased as the associated concessions will no longer be available.

If you are in a genuine relationship with an Australian citizen or PR or eligible NZ citizen and you are not eligible to make a valid application for a Partner visa onshore, the Minister may grant you a substituted Subclass 600 visa to allow you to apply for a Partner visa.

Finalising Ministerial intervention requests

If the Minister decided to intervene and grant you a visa, a statement will be presented to both Houses of the Parliament giving details of the request and the reason why the Minister exercised his public interest power.

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) to help understand ministerial intervention under sections 351, 417 and 501J or click here to learn more about other visas.