LML6006: Migration Act 1958 - Law Assignment Help

Assignment Task:

Minister’s guidelines on ministerial powers (s351, s417, s501J) 
1. Purpose of these guidelines 
The purpose of these guidelines is to: 
• explain the circumstances in which I may wish to consider intervening in a case 
• explain how a person may request that I consider intervening in their case 
• explain when my Department should refer a case to me 
• confirm that if a case does not meet these guidelines, I do not wish to consider intervening in that case. 
2. Minister’s public interest powers 
Under s351, s417 and s501J of the Migration Act 1958 (the Act), I can substitute for a decision of a review tribunal a decision that is more favourable to a person, if I think it is in the public interest to do so. (This includes where those provisions have been saved in relation to decisions of former review bodies.) What is and what is not in the public interest is for me to determine. My power to intervene is personal and non-compellable. This means that although the powers are available to me under the Act, I do not have a duty to use or consider using any of the powers. I can only use these powers where there is an appropriate existing decision in the case from: 
• the Administrative Appeals Tribunal (Migration and Refugee Division) 
• the Administrative Appeals Tribunal (General Division) for protection visa refusals or cancellations on character grounds 
• the former Migration Review Tribunal 
• the former Refugee Review Tribunal 
• the former Immigration Review Tribunal or Migration Internal Review Office. 
Where appropriate, requests for my intervention will be referred to the Assistant Minister. 
3. Ministerial intervention principles 
The following principles apply to the intervention powers covered by these guidelines: 
• it is my general expectation that a person who has not been granted a visa through the statutory visa process will leave Australia 
• consideration of a case for intervention is at my discretion and is not an extension of the visa process 
• if a person has a visa pathway available to them, including an offshore pathway, it is generally not appropriate for me to intervene 
• I will view a case referred to me unfavourably if the person has not complied with the conditions of a previous visa, has provided false or misleading information to the Department or any other relevant authority (such as an assessing authority) or has been an unlawful non-citizen 
• I expect a person requesting my intervention to: o be a lawful non-citizen if they are in the community when they make their 
intervention request and remain a lawful non-citizen until that request is finalised o cooperate in ensuring that their travel documents are available and valid, and o continue to engage with the Department and assist with any enquiries, particularly 
those concerning their identity 
• I expect a person requesting my intervention to continue to make arrangements to leave Australia while their request is being progressed. If the request is unsuccessful, I expect any person who is the subject of the request to leave Australia. 
Cases that should be brought to my attention 
4. Unique or exceptional circumstances 
Cases that have one or more unique or exceptional circumstances, such as those described below, may be referred to me for possible consideration of the use of my intervention powers: 
• strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident 
• compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person 
• exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia 
• circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case 
• the Department has determined that the person cannot be returned to their country/countries of citizenship or usual residence due to circumstances outside the person’s control 
• a person’s particular circumstances or personal characteristics provide a sound basis for believing that there is a significant threat to their personal security, human rights or human dignity if they return to their country of origin, but the mistreatment does not meet the criteria for the grant of any type of protection visa. For example, systematic harassment or denial of basic rights available to others in their country, or the person has experienced torture or trauma in their country of origin and is likely to experience further trauma if returned to that country 
• the person is excluded from the grant of a protection visa or has had a protection visa cancelled or refused on character grounds and their circumstances have been assessed as engaging Australia’s non-refoulement obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm as provided in section 36(2A) of the Act. 5. Other relevant information 
5. Other relevant information For all cases referred to me under these guidelines, the Department will provide information on any other relevant issues, including the following: 
• circumstances that may bring Australia’s obligations under the Convention on the Rights of the Child into consideration, including the best interests of the child - which must be treated as a primary consideration, but can be balanced against other primary considerations 
• circumstances that may bring Australia’s obligations under the International Covenant on Civil and Political Rights into consideration, particularly issues of family unity, which can be balanced against other rights and interests including the integrity of Australia’s migration programme 
• whether the continued presence of the person in Australia would pose a threat to an individual in Australia or to Australian society or security or may prejudice Australia’s international relations 
• whether there are character concerns in relation to the person, particularly concerns related to criminal conduct 
• information about a person’s history of compliance with Australian laws, including migration laws, such as: o any offence or fraud against the migration or citizenship legislation o any failure to comply with their visa conditions o any periods as an unlawful non-citizen in the community o their history of cooperation and engagement with the department to resolve their 
immigration status, particularly in relation to identity and travel documents 
• details of any ongoing court proceedings challenging a decision related to the case and any outcome available before I consider the case 
• the level and nature of the person’s integration into the Australian community and the length of time they have been in Australia, both as a lawful and unlawful non-citizen. 
Cases that should not be brought to my attention 
6. When the powers are not available 
My intervention powers are not available if: 
• there is no review decision on the case by a relevant review tribunal or 
• I have exhausted my power in relation to a review tribunal decision because I have already intervened to grant a visa. 
7. Inappropriate to consider 
Cases which do not meet these guidelines for referral, and with the types of circumstances described below, are inappropriate for me to consider. The Department will finalise these cases without referral to me and advise the person or their authorised representative in writing: 
• the request is made by a person who is not the subject of the request or their authorised representative 
• the person is in the community and: o is an unlawful non-citizen and remains an unlawful non-citizen throughout the 
course of their Ministerial intervention request; and/or o does not cooperate in ensuring that a valid travel document is available (or has 
not satisfied the Department that they are stateless) 
• the person has been found not to satisfy a fraud-related Public Interest Criterion for the grant of a visa 
• the person’s visa has been cancelled because they breached their visa conditions 
• the person has had a visa refused because they did not comply with the conditions of a previous visa 
• the person has been refused a visa or has had a visa cancelled on character grounds 
• ASIO has determined that the person is a direct or indirect risk to national security through issuing the person with an Adverse Security Assessment (ASA) which remains in effect 
• the person could apply for a Partner visa onshore but is subject to an 8503 condition (which specifies that after entering Australia, the person cannot be granted another substantive visa other than a protection visa while they remain in Australia) and a request for a waiver of that condition has not been sought or decided 
• the person may be able to apply for a Partner visa onshore, as prescribed under regulation 2.12(1) of the Migration Regulations 1994 (the Regulations) 
• the person’s application for a Partner visa onshore, as prescribed under regulation 2.12(1) of the Regulations, has been refused and the person is now barred from applying for a Partner visa onshore 
• the person has left Australia 
• the person has an ongoing application for a substantive visa (either onshore or offshore) with my Department 
• the person has an ongoing application for merits review of a visa decision with a relevant review tribunal 
• the person has had a remittal or a set aside decision from a relevant review tribunal or a court 
• the person’s review tribunal decision was in relation to the refusal or cancellation of a Bridging visa E 
• the person has an ongoing Ministerial intervention request under any of the powers covered by these guidelines 
• a Notice of intention to remove has been issued to the person, and the Ministerial intervention request has not been initiated by the Department 
• the person holds a Bridging visa E with visa condition 8512, which specifies that the person must leave Australia by a specified date 
• the request raises claims only in relation to Australia’s non refoulement obligations. 
Requesting Ministerial intervention 
8. Who can make a request? 
A request for my intervention can generally only be made by a person who is the subject of the request or their authorised representative. My Department may initiate a request, including where a case is referred for my attention by a review tribunal. A review tribunal may refer a case to the Department if the member believes the issues involved fall within the unique or exceptional circumstances described in section 4 of these guidelines. The Department will assess the circumstances of the case and may refer the case to me where it meets my guidelines for referral. If the Department 
assesses that the case does not meet my guidelines for referral, the Department will finalise the case according to these guidelines. 
9. How to make a request 
Requests for intervention must be made to me in writing, including by email. All information relevant to the request, including accurate English translations (which should be done by a translator accredited by the National Accreditation Authority for Translators and Interpreters), must be provided at the time the request is made. The Department will assess the request based on the information available at the time of the request. If documents cannot be provided because of credible and/or compelling circumstances beyond the control of the person who is the subject of the request, the reasons must be provided in writing when the request is made and the Department will consider an appropriate response. 
10. How requests for Ministerial intervention will be progressed 
The Department will assess requests against these guidelines and will progress them as described below. 
10.1 First requests 
A request is a ‘first request’ if I or another Minister (current or previous) have not previously received a request to intervene in the person’s case (whether for the present or any previous visa decision) under any of the powers covered in these guidelines. If the Department assesses that the case has unique or exceptional circumstances such as those described in section 4 of these guidelines, it will be brought to my attention in a submission. I may consider intervening if I think it is in the public interest to do so. If the Department assesses that the case does not have unique or exceptional circumstances such as those described in section 4 of these guidelines and is inappropriate for me to consider, as described in section 7 of these guidelines, it will not be brought to my attention. If the Department assesses that the case does not have unique or exceptional circumstances such as those described in section 4 of these guidelines, and is not inappropriate for me to consider, it will be finalised by the Department without referral to me. If I do not wish to intervene or consider intervening in the case, whether or not it has been referred to me, the Department will reply on my behalf to the person or their authorised representative that I do not wish to intervene or consider intervening in that case. 
10.2 Repeat requests 
A request is a ‘repeat request’ if I or another Minister (current or previous) have 
previously received a request to intervene in the person’s case (whether for the present or any previous visa decision) under any of the powers covered in these guidelines. I do not wish to consider repeat requests. Where I or another Minister (current or previous) have declined to intervene or consider intervening in a case, I expect the person concerned to leave Australia. In limited circumstances, a repeat request may be referred to me if: 
• the Department is satisfied there has been a significant change in circumstances since the previous request(s) which raises new, substantive issues that were not provided before or considered in a previous request; and 
• the Department assesses that these new, substantive issues fall within the unique or exceptional circumstances described in section 4 of these guidelines. 
Otherwise, the Department should reply on my behalf to the person or their authorised representative that I do not wish to consider intervening in the case. 
11. Outcome of Minister’s consideration 
If I choose to consider intervening in a case, I may ask for health, character or other assessments to be carried out, for an Assurance of Support to be arranged or for further information to be provided before I determine whether I wish to intervene to grant a visa. If I choose to consider intervening in a case, I may still choose not to intervene to grant a visa. If I choose to intervene in a case to grant a visa, I will grant what I consider to be the most appropriate visa. If a case is brought to my attention, the person or their authorised representative will be advised in writing of the outcome of their request. If I choose not to intervene or consider intervening, I expect any person who is the subject of the request to leave Australia. 
12. Minister’s powers not limited by Minister’s guidelines 
My powers to intervene in an individual case, where I believe it is in the public interest to do so, exist whether or not the case is brought to my attention in the manner described above, as long as a decision has been made by a relevant review tribunal and that decision continues to exist (for example, the review tribunal decision has not been overturned by a court). I may consider intervening in cases where the circumstances do not fall within the unique or exceptional circumstances as described in section 4 of these guidelines, if I consider it to be in the public interest. Where I believe it is appropriate, I will seek further information to help me to determine whether to consider intervening in a case. 
13. Removal policy 
Section 198 of the Act imposes an obligation on officers in my department to remove a person who is liable for removal as soon as reasonably practicable, even where the person has requested my intervention. A request for me to consider intervening is not an application for a visa and unless making the request leads to the grant of a Bridging visa, the request has no effect on the department’s removal obligations. 
Peter Dutton Minister for Immigration and Border Protection 11 March 2016 
 

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