Under the Migration Act 1958, the Minister for Home Affairs has the power to intervene and replace a decision made by the Administrative Appeals Tribunal on an individual’s migration case. The Minister is not legally obligated to intervene but he or she can make a decision that is more favourable to the visa applicant if he or she is of the view that it is in the public’s interest to do so and if it is a unique or exceptional case.
The Department of Home Affairs advises that only a small number of requests for ministerial intervention are referred to the Minister and an even smaller amount are successful.
The Minister’s powers are not available in the following circumstances:
- there is no review decision by a merits review tribunal
- a Minister has already intervened to grant a visa
- a tribunal has found that it does not have jurisdiction to review a decision
- a tribunal has found that the review application was made outside the time limits
- a tribunal has returned the case to the Department for further consideration and one of the Department’s decision-makers has made a subsequent decision on the case.
Examples of where the Minister intervened are below:
- A Bhutanese family faced deportation as their deaf son was previously deemed a ‘cost’ to Australian taxpayers. The family were granted permanent residency after Ministerial intervention.
- A visa applicant from Lebanon was rejected for a protection visa and a subsequent medical treatment visa. A request for Ministerial intervention was made for a number of reasons including living in Australia for 18 years and not having access to medical treatment in his home country. The visa applicant was able to remain in Australia.