Ministerial Intervention Australia

What Is Ministerial Intervention?

Ministerial intervention allows the Minister to personally exercise a statutory power in certain cases where the ordinary migration decision-making and review processes have not provided a suitable outcome.

The Minister's powers are limited by the relevant section of the Migration Act 1958.

For example:

• Section 351 can allow the Minister to substitute a more favourable decision in certain matters after review by the Administrative Review Tribunal (ART).
• Section 501J concerns certain protection visa decisions made by the ART.
• Section 46A concerns specified persons who are barred from making a valid visa application.
• Section 48B concerns certain restrictions on further protection visa applications.

These powers should not be treated as interchangeable. The eligibility, procedure and Ministerial Instructions differ depending on the relevant statutory provision.

Ministerial Intervention Under Section 351

Section 351 is one of the main ministerial intervention provisions for migration matters.

Where the statutory requirements are satisfied, the Minister may personally intervene after an eligible review decision and substitute a decision that is more favourable to the applicant.

The power is discretionary.

Section 351 does not create a general right for every person with an unsuccessful visa application to ask the Minister to grant a visa.

How Section 351 Works

A typical section 351 matter may involve:

1. A person makes a visa application.
2. The visa application is refused or another relevant migration decision is made.
3. The person has a right to seek review.
4. The matter is considered by the Administrative Review Tribunal where applicable.
5. The ART makes a review decision.
6. The person may make a request for Ministerial intervention if the matter falls within the relevant Ministerial Instructions.
7. The Department assesses whether the request should be referred to the Minister.
8. The Minister may personally decide whether to exercise the intervention power.

A request does not guarantee that the Minister will consider the matter or intervene.

What Can the Minister Do Under Section 351?

Where section 351 applies, the Minister may personally substitute a more favourable decision in relation to an eligible review matter.

The Migration Act provides that the Minister's power under section 351 is personal and that the Minister does not have a duty to consider whether to exercise the power, whether or not a person makes a request.

The Minister may therefore decline to intervene.

Ministerial Intervention Under Section 501J

Section 501J is a separate ministerial intervention power relating to certain protection visa decisions made by the ART.

Under section 501J, if the Minister thinks it is in the public interest, the Minister may set aside an ART protection visa decision and substitute another decision that is more favourable to the applicant.

The power can only be exercised personally by the Minister.

Section 501J should not be confused with section 351.

Section 351 vs Section 501J

The correct intervention provision depends on the nature of the original visa matter and review decision.

Is Ministerial Intervention an Appeal?

No.

Ministerial intervention is not an ordinary appeal or merits-review process.

The ART is an independent merits-review body with its own statutory jurisdiction.

Ministerial intervention is a separate discretionary mechanism available only where the relevant statutory power and Ministerial Instructions permit consideration.

This distinction is important because an unsuccessful ART decision does not automatically mean that a person is entitled to Ministerial intervention.

Is Ministerial Intervention Guaranteed?

No.

There is no guarantee that a request will be referred to the Minister and no guarantee that the Minister will intervene.

The Ministerial Instructions explain the circumstances in which requests are to be assessed and referred.

The Minister's intervention powers are personal and non-compellable. The Minister does not have a duty to consider every request.

What Are Compelling or Exceptional Circumstances?

The relevant Ministerial Instructions provide the framework for assessing requests.

Depending on the statutory power and circumstances, the request should explain why the person's circumstances warrant Ministerial intervention and why the requested outcome is appropriate.

Relevant considerations may include circumstances involving:

• Australian citizen or permanent resident family members;
• Dependent children;
• Significant family separation;
• Serious medical circumstances;
• Exceptional hardship;
• Long-term establishment in Australia;
• Contributions to Australian society;
• Significant personal circumstances;
• Other factors relevant under the applicable Ministerial Instructions.

However, not every compassionate circumstance will result in intervention.

The request needs to address the applicable Ministerial Instructions and provide evidence supporting the circumstances relied upon.

Family Circumstances

Family circumstances can be relevant to a Ministerial Intervention request where they demonstrate significant consequences arising from the person's immigration situation.

Evidence may include:

• Birth certificates;
• Marriage certificates;
• Evidence of de facto relationship;
• Evidence concerning dependent children;
• Australian citizenship or permanent residence evidence;
• Medical evidence;
• Evidence of long-term family circumstances;
• Evidence of family dependency.

Simply having family members in Australia does not automatically establish a basis for intervention.

Children's Circumstances

The circumstances of children can be particularly important in appropriate cases.

A submission may need to explain:

• The child's age;
• Citizenship or visa status;
• Relationship with the applicant;
• Dependency;
• Living arrangements;
• Emotional or practical dependence;
• Medical or educational circumstances;
• Impact of continued separation.

Supporting evidence should be provided wherever possible.

Medical Circumstances

Serious medical circumstances may be relevant to a request where they demonstrate exceptional or significant consequences.

Evidence may include:

• Specialist reports;
• Hospital records;
• Medical diagnoses;
• Treatment plans;
• Evidence of ongoing care requirements;
• Evidence explaining the applicant's role in providing care;
• Evidence concerning the availability of alternative care.

Medical evidence should be current and directly relevant to the circumstances relied upon.

Australian Community Ties

Depending on the applicable intervention framework, evidence concerning a person's establishment and contribution in Australia may also be relevant.

This can include:

• Length of residence;
• Employment;
• Business activities;
• Community involvement;
• Professional contribution;
• Family connections;
• Tax history;
• Voluntary activities;
• Other relevant contributions.

These factors should be presented with objective evidence rather than general statements.

Ministerial Intervention After an ART Decision

A Ministerial Intervention request can become relevant after the ART has made a decision in an eligible matter.

However, the existence of an ART decision does not automatically create a right to Ministerial intervention.

The Department's current Ministerial Instructions determine which requests are eligible for consideration and how they are processed.

Before making a request, applicants should determine:

• What decision was made by the ART;
• Which statutory intervention power may apply;
• Whether the matter falls within the current Ministerial Instructions;
• Whether the request can be referred;
• What new or exceptional circumstances support intervention.

What Evidence Should Be Included?

A strong request should be supported by clear, relevant and verifiable evidence.

Immigration documents

• Visa refusal decision;
• Visa cancellation decision;
• ART decision;
• Previous visa grant notices;
• Bridging visa documents;
• Department correspondence;
• Previous Ministerial Intervention correspondence, if applicable.

Identity documents

• Passport;
• Birth certificate;
• National identity documents;
• Evidence of name changes.

Family evidence

• Marriage certificate;
• Birth certificates;
• Evidence of relationship;
• Evidence of children's circumstances;
• Australian family members' citizenship or visa evidence.

Medical evidence

• Specialist reports;
• Hospital records;
• Treatment plans;
• Medical assessments.

Establishment and contribution evidence

• Employment records;
• Payslips;
• Tax documents;
• Business records;
• Professional qualifications;
• Community contribution evidence.

Other supporting evidence

Any other documents directly relevant to the circumstances relied upon should be included.

Ministerial Intervention Statement

A written submission is an important part of a Ministerial Intervention request.

The submission should be:

• Factually accurate;
• Clearly structured;
• Consistent with the immigration record;
• Focused on the relevant intervention power;
• Supported by documentary evidence;
• Clear about the outcome being requested.

The submission should not simply repeat the original visa application.

It should explain why the particular case warrants Ministerial intervention under the applicable framework.

What Happens After a Ministerial Intervention Request?

After a request is submitted, the Department assesses it according to the applicable Ministerial Instructions.

The Department may:

• Determine that the request should not be referred;
• Request further information;
• Refer the request to the Minister;
• Process the request according to the applicable intervention framework.

The Minister may then decide whether to exercise the relevant power.

The Minister does not have a duty to intervene.

Can You Make a Ministerial Intervention Request More Than Once?

This depends on the circumstances and the applicable intervention framework.

Applicants should disclose previous requests and decisions.

Submitting repeated requests with substantially the same circumstances may not provide a meaningful basis for further consideration.

If circumstances have materially changed, the new circumstances and supporting evidence should be clearly identified.

Ministerial Intervention Processing Time

There is no standard guaranteed processing timeframe for Ministerial Intervention requests.

Processing depends on:

• The type of intervention request;
• The statutory power involved;
• The complexity of the matter;
• The information provided;
• Whether further information is required;
• Department workload;
• Applicable Ministerial Instructions.

Applicants should not make irreversible arrangements based on an assumed processing timeframe.

Can You Work While Waiting?

A Ministerial Intervention request does not automatically provide a person with a visa or work rights.

Work rights depend on the visa currently held and its conditions.

Applicants should check their current visa status and conditions through VEVO and obtain advice if their visa is approaching expiry.

Does Ministerial Intervention Stop Removal?

A request for Ministerial intervention does not automatically prevent immigration action or removal.

The effect of a request depends on the person's circumstances, current visa status and the relevant intervention process.

The Department's current process should be checked carefully before assuming that a request provides lawful status or protection from removal.

Ministerial Intervention and Section 48

Section 48 and Ministerial intervention are separate concepts.

Section 48 can restrict certain onshore visa applications following specified visa refusals or cancellations.

Ministerial intervention may be relevant in a different context where a statutory intervention power applies.

A person affected by Section 48 should not assume that a Ministerial Intervention request automatically removes the Section 48 restriction.

Ministerial Intervention and Schedule 3

Schedule 3 contains additional criteria that can apply to certain applicants who do not hold a substantive visa.

Ministerial intervention is a separate process.

Depending on the circumstances, an applicant may need to consider:

• Schedule 3;
• Section 48;
• Visa cancellation;
• Re-entry or exclusion periods;
• ART review;
• Ministerial intervention.

These issues should be assessed together where they overlap.

Ministerial Intervention and Character Matters

Character-related matters require particular care.

The Migration Act contains separate Ministerial powers concerning visa refusal and cancellation on character grounds, including sections 501, 501A, 501B, 501BA and related provisions.

Section 501J is also a separate intervention power concerning certain protection visa decisions.

A person with a character-related refusal or cancellation should therefore obtain advice on the exact statutory provision involved rather than referring generally to "Ministerial intervention."

Other Ministerial Intervention Powers

The Migration Act contains other intervention powers that apply to particular circumstances.

Section 46A

Section 46A concerns certain unauthorised maritime arrivals and other specified persons who are prevented from making a valid visa application.

The Minister may, in the public interest, determine that the application bar does not apply for a specified period.

Section 48B

Section 48B concerns certain people affected by the bar on making further protection visa applications.

The Minister may personally determine that the Section 48A bar does not apply in specified circumstances where the relevant statutory requirements are met.

These processes are different from the standard sections 351 and 501J ministerial intervention process.

Common Ministerial Intervention Mistakes

Assuming intervention is an appeal

It is not.

Applying without checking the relevant section

Different intervention powers have different legal requirements.

Relying only on personal hardship

The submission should address the applicable intervention framework and provide evidence.

Repeating the ART case

A Ministerial Intervention request should be specifically directed to the intervention framework rather than simply reproducing the ART submission.

Providing unsupported claims

Important claims should be supported with independent evidence.

Assuming a request creates lawful status

A request does not automatically grant a visa or work rights.

Assuming the Minister must consider the request

The relevant powers are discretionary and non-compellable.

Professional Assistance With Ministerial Intervention

Ministerial Intervention matters can be complex because they can involve several different parts of Australia's migration system at the same time.

A professional assessment can help determine:

• Which intervention power may be relevant;
• Whether the matter falls within the current Ministerial Instructions;
• Whether an ART decision is relevant;
• Whether Section 48 or Schedule 3 issues exist;
• Whether there are compelling or exceptional circumstances;
• What supporting evidence should be provided;
• How the submission should be structured.

The Visa and Education Services Pty Ltd provides personalised Australian migration assistance through Registered Migration Agent Navneet Kaur (MARN 2318181).

We can assist with:

• Ministerial Intervention assessment;
• Section 351 matters;
• Section 501J matters;
• Immigration history review;
• ART decision assessment;
• Family and compassionate circumstances;
• Medical circumstances;
• Supporting evidence;
• Written submissions;
• Department correspondence.

If you have received an unfavourable ART decision or are considering a Ministerial Intervention request, it is important to assess the available pathway carefully before submitting a request.

Contact us for a personalised assessment of your circumstances.

Important Disclaimer

Ministerial intervention powers are discretionary and are governed by the Migration Act 1958, applicable regulations and current Ministerial Instructions. A request does not guarantee referral to the Minister or a favourable outcome. This page provides general information only and does not constitute migration or legal advice.