The Minister may, upon request, have the power, but not the duty, to consider whether to exercise that power, to personally intervene, if he/she considers it in the 'public interest' to do so, and substitute a more favourable decision where an applicant has appealed to a merits review authority.
Under the Migration Act, the Minister may, upon request, have the power, but not the duty, to consider whether to exercise that power, to personally intervene, if he/she considers it in the 'public interest' to do so, and substitute a more favourable decision where an applicant has appealed to a merits review authority, e.g. the AAT, and the review authority has upheld the primary decision of a delegate. If the Minister decides to exercise his/her powers in favour of the applicant, the Act requires him/her to lay before both Houses of Parliament the decision and reasons. However, the Minister must not reveal the person’s identity or any information which might lead to revelation of the person’s identity.
The powers vested in the Minister to personally intervene are in the Migration Act 1958, under
S.351 (Part 5-review)
S.417 (Part 7 review)
S.501J (AAT, on refusal or cancellation of protection visas)
Note Ministerial intervention powers are not available if the decision does not come under the above sections. For example, cancellation of business visas and review by the AAT (s.136) does not attract any entitlements to Ministerial intervention, although of course there is nothing to stop a person making representations to the Minister on any matter.
The wording of sections 351, 417 and 501J are similar. Reproduced below is the text of section 417, which deals with the Minister’s powers to intervene after a Part 7 review has upheld the primary decision:
[Section 417] Minister may substitute more favourable decision
(1) If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 415 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.
(2) In exercising the power under subsection (1) on or after 1 September 1994, the Minister is not bound by Subdivision AA or AC of Division 3 of Part 2 or by the regulations, but is bound by all other provisions of this Act.
(3) The power under subsection (1) may only be exercised by the Minister personally.
(4) If the Minister substitutes a decision under subsection (1), he or she must cause to be laid before each House of the Parliament a statement that:
(a) sets out the decision of the Tribunal; and
(b) sets out the decision substituted by the Minister; and
(c) sets out the reasons for the Minister's decision, referring in particular to the Minister's reasons for thinking that his or her actions are in the public interest.
(5) A statement made under subsection (4) is not to include:
(a) the name of the applicant; or
(b) any information that may identify the applicant; or
(c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned - the name of that other person or any information that may identify that other person.
(6) A statement under subsection (4) is to be laid before each House of the Parliament within 15 sitting days of that House after:
a) if the decision is made between 1 January and 30 June (inclusive) in a year - 1 July in that year; or
(b) if a decision is made between 1 July and 31 December (inclusive) in a year - 1 January in the following year.
(7) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances
When a person seeks Ministerial Interention, they are normally eligible for a Bridging E (050) visa. And whilst there is nothing in migration legislation specifying how many times a person may seek Ministerial intervention, the Migration Regulations do provide that if a person had previously sought Ministerial Intervention under ss.351, 417, 501J or 48B of the Migration Act, the person would no longer be eligible for the grant of another bridging E visa, although of course the person can make another request for Ministerial intervention, but without being able to get a bridging visa.
Requests for Ministerial intervention are at the first instance addressed to the Minister at Parliament House in Canberra. Once a request for Ministerial intervention is received, the practice is for a Departmental officer at the Ministerial Intervention Unit (MIU) to review the file in accordance with guidelines laid down by the Minister. The officer basically decides whether there is sufficient persuasive material to warrant consideration by the Minister. If there is, the matter is referred to the Minister with a recommendation; if there is not, the matter goes no further. Under the Migration Act, the Minister is not obliged to consider exercising the power and, further, the Minister's decision is not subject to Federal Court review.
Despite the fact that an internal Departmental review process exists, immigration practitioners are strongly counselled to advise their clients of the existence of this Ministerial power and the advantages of a specific submission to the Minister which canvasses the issues and addresses the Ministerial guidelines. Many refugee applications, which are otherwise deserving, fail because the applicant cannot meet the specific criteria of the Convention, e.g., the Tribunal may well accept that the applicant faces a real chance of persecution upon return but not for one of the Convention reasons. Section 417 gives the Minister the authority to address such a situation with a humanitarian perspective.
The Minister may, in the public interest, substitute a decision more favourable to the applicant than that made by the Tribunal. This provision is commonly referred to as the humanitarian power. The power by the Minister is a personal one, is non-delegable and non-compellable, and can only be exercised after all merits review applications have failed.
The 'public interest' in this case is not defined in the Migration Act, and must not be confused with the Schedule 4 Public Interest criteria in the Migration Regulations. By legal definition, 'public interest' means an interest common to the public at large or a significant portion of the public, and may or may not involve the personal or proprietary rights of individuals. Thus matters of public interest may include Australia’s national interest in trade, economic or cultural gains, or Australia’s commitment to international law and conventions.
The Migration Regulations have been amended to allow the Minister to, in the public interest, grant a ‘substituted 600 visa’ to certain persons who had applied for Ministerial intervention under the Migration Act.Despite its apparent visa subclass number, the 'Substituted 600 visa' is NOT a tourist visa that can be applied for.
Persons who have been granted the ‘substituted 600 visa’ may then apply for other substantive visas as appropriate, with concessions. For exampe, holders of ‘substituted 600 visas’ who have child(ren) settled in Australia may, despite not meeting the age or balance of family requirements, apply for an onshore Contributory Aged Parent (Temporary or Permanent) visa, and be subject to a reduced visa application charge and more relaxed public interest criteria.
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