When would you lodge an appeal to the Hon Minister?
How would you lodge an appeal to the Hon Minister?
When the DIBP either refuses or cancels your visa and if you have the option to go to the AAT for review, and if the AAT does not give you a favourable decision, you will have 2 options:
- You can lodge a further appeal to the Federal Circuit Court, which is a very costly process, and if you lose you will be liable to the legal costs as directed by the court
- You can lodge an appeal to the Hon Minister for which there is no application fee (you can lodge Minister Appeal at any time, however the Minister is not obliged to consider your appeal.)
The appeal to the Minister can be lodged simply in writing, and sent to the address provided by the DIBP. If you are not confident or not in a position to express yourself well to the Hon Minister, it is advisable that you seek assistance from an experienced Registered Migration Agent, and then lodge an appeal to the Minister. However there is no guarantee that the Minister is obliged to consider your appeal, although the Hon Minister will give due consideration to each and every case.
Who Can Make A Request For Ministerial Intervention?
You can make a request for ministerial intervention if you have received a decision by a review tribunal, typically the AAT, or for cases prior to 1 July 2015, a merits review tribunal decision also included decisions from the Migration Review Tribunal and the Refugee Review Tribunal. This is because the minister’s public interest powers require a review tribunal decision to exist before he can intervene. However, there are certain limited circumstances where the minister cannot intervene even after a decision by a review tribunal.
These include where:
- the decision of the DIBP not to grant a visa is not a decision that can be reviewed by the relevant review tribunal
- the review tribunal has sent your case back to the department for further consideration and a departmental decision-maker has made a subsequent decision on the visa
- your review tribunal decision was made before 1 September 1994
- a finding by the tribunal that the department’s decision is not reviewable by it
- a finding by the tribunal that the application made to the tribunal was invalid as it was not made within the required timeframe
- a decision of the AAT that is NOT in respect of an MRT reviewable decision or a protection visa decision.
The Minister’s Intervention Powers
When a visa is refused (or cancelled) by the DIBP and visa applicants then appeal to the AAT (Migration Review Division), who affirm the decision of DIBP, visa applicants have the option to appeal to the Hon Minister for Immigration and Border Protection under public interest. The public interest powers are contained in sections 351, 417 and 501J of the Migration Act 1958. These powers can only be used by the Minister and are non-compellable. This means they act as a ‘safety net’ only and the minister is not legally bound to intervene, or consider intervening.
Unique or Exceptional Circumstances
The Minister has provided guidance on the types of unique and exceptional circumstances he wants brought to his attention. The table below provides the Minister’s list of unique or exceptional circumstances and some examples of the type of supporting documents you may need to provide. This list is not exhaustive. Please not that providing the documents listed or meeting one of the unique or exceptional circumstances below does not mean the Minister will intervene in your case.
| Types of unique or exceptional circumstances | Examples of the different types of documents (documents will vary depending on your circumstances) |
| Circumstances that may bring Australia’s obligations as a party to the Convention on the Rights of the Child (CROC) into consideration. Under CROC, the best interests of a child will be considered as a primary consideration. This includes you, if aged under 18, or a child with whom you have a close relationship. Example: Your child, stepchild. |
· Documents which support your relationship to the child. Example: Birth certificate.· If you do not have custody of the child, evidence of your contact with the child. Example: Parenting agreement, support payments.· Documents supporting why it would not be in the child’s best interest for you/the child to depart Australia.Where relevant:· a statutory declaration outlining the impact on the child. · medical or psychological reports, where claims raise health issues. · supporting letter from the child’s custodial parent, where available. Note: The department will access information to confirm the situation in your home country. |
| Strong compassionate circumstances such that failure to recognise them would result in irreparable harm and continuing hardship to an Australian citizen or permanent resident should you leave the country. | · supporting documents may include birth certificate(s), Australian citizenship papers, marriage certificate, joint utility bills, joint saving accounts.
Where relevant: · a statutory declaration outlining how the Australian citizen or permanent resident will suffer irreparable harm and continuing hardship and/or why you cannot make an application for a visa outside Australia. · medical or psychological reports, where claims raise health issues. · medical/specialist reports confirming an Australian citizen or permanent resident requires ongoing and continuous care that is not otherwise readily available. · supporting letter from the Australian citizen or permanent resident or their family members. |
| Exceptional economic, scientific, cultural or other benefit to Australia. | · documents supporting why you would be of exceptional benefit to Australia.
· awards or industry/peer recognition. · letters of support from relevant national bodies · evidence of qualifications · where requested, skills recognition documents by the relevant Australian assessment authority. Information on obtaining assessment of skills and qualifications is available on the department’s website. · employer references showing you have been employed in your profession or trade. Where relevant: · business/financial statements |
| Compassionate circumstances regarding your age and/or health and/or psychological state such that failure to recognise them would result in irreparable harm and continuing hardship to you. | · documentation supporting irreparable harm and continuing hardship to you if you are returned to your country of origin
· evidence of your age, and/or health or psychological state. Where relevant: · evidence of age · medical/specialist/psychological reports. · a statutory declaration outlining how you will suffer irreparable harm and continuing hardship for reasons of your age and/or health or psychological state. · letter of support from family or others willing to provide you with ongoing care while in Australia. Note: The department will access information sources to confirm the situation in your home country, including access to appropriate health care. |
| Length of time you have been present in Australia and your level of integration into the Australian community. | · documents which demonstrate that you have integrated into the Australian community, including how you and your family participate in the Australian community Example: Business ownership records, membership of community organisations, record of enrolment of children in the Australian educational system.· supporting letters from community organisations. |
| Circumstances that the legislation does not anticipate or clearly unintended consequences of legislation or the application of relevant legislation leads to unfair or unreasonable results. | Provide reasons:
· why your circumstances are unique or special and were not anticipated by the legislation for the type of visa you sought · how legislation or policy did not anticipate a person in your circumstances being refused a visa · how the refusal of your visa has led to unfair or unreasonable results. |
| You are unable, through circumstances outside your control, to return to your country/countries of citizenship or usual residence. | · evidence of identity Example: Birth certificate, genuine travel document previously issued in your name.· evidence that you are unable to obtain or have been denied a new travel document/entry by your country of citizenship or usual residence. |
How BMS Global Can Help You Apply for Ministerial Intervention
- We at BMS GLOBAL have 16 years of actual practical hands on experience in processing and lodgement of visa applications, and when required appeals were made to the Hon Minister
- We are aware of complexities and changing nature of Immigration Laws so that we can prepare you and your appeal and make your appeal to the Minister on solid grounds based upon the public interest criteria
- We can assist you in preparation of documents, liaise with the DIBP and the Hon Minister, also we will obtain your DIBP file under Freedom of Information (FOI) so that the appeal process can go smoothly and so that you have the best chance of success, however no guarantee can be given as to whether the Minister will consider our appeal or not
- We can provide you frank and candid opinions with expert’s advice if needed about your appeal well in advance and about any other options you may have to lodge further applications onshore or offshore. Also about any matters regarding a visa ban period and how to meet the criteria for any future visas.
- The Minister Appeal may take a long period of time and during this process we will keep you informed of any Immigration Law changes and assist you to meet with the further requirements, until your appeal is given a final outcome by the Hon Minister.
Please feel free to contact us anytime suitable to you and we can discuss with you the work and costs involved in applying for Ministerial Appeal.