The Migration Act 1958 grants the Australian Minister of Immigration the special right to personally intervene in Australian immigration visa decisions, under sections 351, 417 and 501J of the Act.

This means that even where a visa grant has been refused by the Department of Immigration and Citizenship, and is later refused by a Tribunal, the Minister is legally entitled to override that decision. These powers are intended to act as a ‘safety net’ only, and the Minister is not obliged under any circumstances to use this power. The powers conferred on the Minister in this regard are generally used sparingly and only if the Minister considers it in the public interest to intervene.

The current Australian Immigration Minister, Mr Chris Bowen, has defended his use of these special powers of intervention, in responding to accusations by an Australian migration lawyer that he is taking a tougher stance then any of his predecessors in using his right to intervene.

Mr Bowen has stated that he is careful in his decisions and has rejected any claim that he is unfair. The Ministers office released official statistics demonstrating that from mid September 2010 through to late January 2011, the Minister received 445 requests for intervention and decided to intervene and grant visas under section 417 of the Act in 101 of those cases. This data suggests a 23% average successful intervention rate.

"Ministerial intervention is intended as a last option for people who have exhausted all other avenues of review, so only a small number of cases with unique and exceptional circumstances will generally be successful," Mr Bowen said.

Minister Bowen also pointed to the individuality of each case, noting that each case has its own set of circumstances and there is no one set procedure to follow in considering whether or not to intervene.  

"I always carefully consider the entire circumstances of every case and take into account the latest relevant information, including character and health checks," Mr Bowen said. "Some believe ministerial intervention should be an automatic process, which is certainly not the case.”

The Australian Federal Magistrates court will further consider the legitimate scope and use of the Ministers powers during a case currently pending at the moment.

Haag Walker Lawyers can help you determine if the refusal of your Australian visa application warrants an appeal to the Minister for Immigration, and aid you in preparing your appeal to a high professional and legal standard, ensuring your appeal has the best possible chance of success.