The Minister has powers that allow him to intervene to replace a review tribunal’s decision on a person’s case with a decision that is more favorable to that person when the Minister thinks it is in the public interest to do so. When the Minister intervenes to make a more favorable decision, this usually means he grants a visa. What is and what is not in the public interest is for the Minister to decide. The Minister has provided guidance on the types of unique and exceptional circumstances that could be brought to the Minister’s attention. The Minister is not legally bound to intervene or to consider intervening.
The Migration Act 1958 provides the Minister with non-delegable, non-compellable powers to intervene in individual cases. These are known as the ministerial intervention powers.
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
- Tribunal has found that it does not have jurisdiction to review a decision
- Tribunal has found that the review application was made outside the time limits
- Tribunal has returned the case to the department for further consideration and one of the decision-makers has made a subsequent decision on the case.
Alternative to Ministerial Intervention after unsuccessful outcome at the AAT
The Administrative Appeals Tribunal Act 1975 provides that a party to a proceeding before the AAT may appeal to the Federal Court on a question of law from any decision of the AAT in that proceeding. This means that you or your client must believe the AAT made a mistake in law in deciding your case. The only issue the Court will focus on is whether the AAT has made a legal error in making its decision and not on the merits of the case.
You must make your appeal to the Federal Court no later than 35 days after receiving the AAT’s decision. The department also has 35 days to appeal the AAT’s decision if it thinks it is wrong. If the department has not complied with an AAT decision during this time, it might be because it is considering an appeal to the Federal Court.
If you are unsure, why not contact us and we will be happy to discuss your case with you with a fresh look and provide our advice to the best option and approach you may have.