Ministerial Intervention requests: are they worth it?

Up until early 2016, many people who had exhausted all other immigration actions (visa applications, tribunal review, judicial review) but were not yet ready to leave Australia and were still holding onto a hope that they may be allowed to stay, had a viable option to approach the Minister for Immigration and Border Protection via a Ministerial Intervention request.

Since 2016, though, it’s increasingly less often reasonable to suggest that a Ministerial Intervention Request is something worthwhile for applicants to spend time and money on preparing or having a representative prepare. Unless the applicant’s circumstances are genuinely unique or exceptional and additionally fit within the narrowed “Minister’s Guidelines” for intervention requests, the request is likely to be decided against them, or in many cases not even considered, and will be finalised within just a few weeks.

Over the few years immediately preceding 2016, Ministerial Intervention, never an easy thing to succeed with, had become progressively more difficult with the advent of each newly appointed Minister. Cases which 5 years ago would have shown promise of an actual favourable result, became far more frequently a slow slog towards failure. In some instances, applicants were aware that this was likely, but just wanted to spend the period in Australia (back then frequently between 3-12 months or more) that the applications took to process. Sometimes they were buying themselves enough time here to allow for another process to be commenced, such as a Partner visa application based on at least 12 months living together, or a child born in Australia reaching the 10 year milestone that saw them granted citizenship.

Since the early 2016 changes, Ministerial Intervention requests probably should be approached as the exception rather than the rule, in planning case strategies beyond tribunal or court matters. There are a few reasons for this. For example,if you have held a Bridging Visa A throughout your visa application, tribunal review and court appeal stages, it will not continue to be extended for a Ministerial Intervention request. You will instead have to start engaging with the Department of Immigration and Border Protection’s “Compliance” unit and applying for Bridging Visas E, to keep you lawfully in Australia while the Ministerial Intervention request is considered. A downside to this is that if the request is unsuccessful and you then have to leave Australia, as the holder of a Bridging visa E you will face a 3 year bar on being granted most temporary visas to Australia.

Some other problems people face is loss of work rights and Medicare if the Ministerial Intervention request is not lodged before their existing visa expires or if they fail to attend Compliance and apply for the Bridging E visa as soon as the existing visa does expire, possible immigration detention if the Ministerial Intervention request is not within the guidelines and/or is made in circumstances that the assessing officer does not believe the applicant will comply with conditions on a visa grant, money outlaid on representation and the stress of the ongoing Compliance visits with little chance for success.

On the other hand, if you have exhausted all other immigration options and you believe that you really do have circumstances that are unique or exceptional that may warrant the Minister intervening in your case, you probably should seek advice from an immigration representative with experience in Ministerial Intervention cases. They will be able to consider your circumstances in relation to the guidelines and any other applicable law and policy and advise you on whether your case has any possibility of succeeding. Because Ministerial Intervention cases are so difficult, they are probably best not handled alone.

Michele Clayton MARN 0957773
Legal Practitioner NSW 55486

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