Visa appeal not successful, what do I do?
Some cases cannot be won on appeal. Does this mean you do not try? Absolutely not. There are some cases where the immigration law does NOT allow the Tribunal to change the visa refusal or cancellation decision as they must follow the law. They often have no discretion.
We will assess a case at the start of an appeal process and if we see the Tribunal appeal is not likely to succeed we also look at whether the case meets the criteria for Ministerial Intervention (MI).
With Ministerial Intervention or Ministerial Request where a request is made directly to the Minister for Immigration and Border Protection, the Minister may make any decision he or she thinks is fair and reasonable. This is complex but important. It cannot be used in all situations but we can advise you. We target your Migration Review appeal to the Ministerial Intervention process from the start if we think you qualify. Can I stay in Australia while the Minister considers my request? Yes you can if you are already in Australia.
What are the criteria for Ministerial Intervention?
These generally take into account only the following:
- Where an Australian citizen or Permanent Resident will be severely affected by the decision the Minister may make a more favourable decision.
- Where the interests of Australia will be severely affected the Minister may intervene. This may include, amongst many other scenarios, an applicant’s ability to give high level and important skills to Australia.
- Where the law is clearly unsuited to a situation and it would be extremely unreasonable to apply that law the Minister may intervene.
Some examples:
- 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. - 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.
- Exceptional economic, scientific, cultural or other benefit to Australia.
- 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.
- Length of time you have been present in Australia and your level of integration into the Australian community.
- 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.
- You are unable, through circumstances outside your control, to return to your country/countries of citizenship or usual residence.
What is the cost?
There is no application fee and you are making a request for intervention, not an application. The Minister does not have to intervene. Our fees will depend on the individual circumstances of a case but can be similar to a Review appeal. We look at every case individually to assess likely costs.
Can I make a request without an appeal?
No. In almost all cases you must have been to the appeal Tribunal and been denied the visa.
What is the chance of success?
We cannot give an easy answer to that without a full assessment of your circumstance. We need to see the visa refusal decision or other documents. However, after a good review of your case we will be able to advise more. It is fair to say that the Minister intervenes in a very small number of cases but we have had some great successes.
We work hard to present a strong written argument with supporting evidence. We also work hard to help you with related temporary visas to keep you legally in Australia while you wait for a decision. Decisions can take from 1 to 15 months.