In some limited circumstances, the Minister for Immigration and Citizenship has the power to grant a visa even if the person has been in Australia on expired visa provided the Minister believes in his own discretion that there is public interest involved and the case falls under the minister’s guideline of being ‘unique and exceptional’.
I handled a case where the couple arrived in Australia ten years ago along with two young children. The husband on his own filed a refugee application or protection visa claiming persecution by a union organisation as he was suspected of providing information on union activities to the management. His application was denied by the Department of Immigration & Citizenship (DIAC) and his appeal was likewise refused by the Refugee Review Tribunal. The family did not depart Australia and all those years the parents managed to send their children to school until they were eighteen years old. After ten years, my assistance was sought as they were arrested by DIAC compliance officer at their residence for having stayed in Australia illegally. I successfully argued to the Minister that the family be granted permanent visa as the children have spent their formative years in Australia – having arrived in the country as minors and at the time of their arrest, they are 18 years old already, outstanding students and the parents have integrated within the Australian society and they have skills back home which are on demand in Australia.
In another case, my client who was in Australia on expired visa was granted permanent residence by the Minister because she was the guardian of an orphan child whose mother died leaving the sister as the only carer of the orphan Australian citizen child.
My case of a 65 year old widow was exceptional and unique. She was sponsored on aged dependent relative visa by his family in Australia and when her case was finalised in five years time, she was diagnosed with cancer. Therefore, her application was in jeopardy as she did not pass the health criteria. I raised her case to the Minister after refusal of her application by MRT contending that she passed the medicals when she originally lodged her application. Further, I submitted to the Minister that it would be in the public interest to grant her permanent residence visa as she became support person of women afflicted with cancer and a volunteer in a cancer clinic. I also argued to the Minister that she was not a burden to the Australian community as she has a private health fund and the fact that it would be difficult to return to the Philippines as all her children are already in Australia.
Under the law, the Minister can substitute a decision which is more favourable to the applicant on public interest grounds provided the applicant has appealed the refusal of DIAC to the Migration Review Tribunal or Refugee Review Tribunal or Administrative Review Tribunal which is also refused. There is no time limit within which to request the Minister to intervene or make a letter of representation.
The Minister might personally intervene on a case if there are unique or exceptional circumstances:
• A young Australian child is involved. For example no relative can take care of the child except the applicant and the best interest of the child can be served if the child is looked after by the applicant.
• Continuing hardship to the Australian citizen if the applicant will leave Australia. This might be relevant on carer visa application.
• Those with exceptional talent or skills of benefit to Australia.
• If you have the real threat of being tortured if returned to your home country.
• Compassionate circumstances taking into consideration the length of time the applicant is in Australia and his/her integration to the Australian community.
• Denial of human rights, those subjected to systematic fear but did not amount to persecution under the International Convention for Refugees.
• Application of the relevant legislation leads to unfair or unreasonable result.
The above situations are not exhaustive and the applicant can make representations if she/he believes that there are exceptional circumstances that warrants ministerial intervention. How to request the Minister:
First: Check whether your application has been denied by the Migration Review Tribunal or Refugee Tribunal or in certain circumstances by the Administrative Appeals Tribunal.
Second: Evaluate whether your case is unique or exceptional that warrants personal intervention by the Honourable Minister for Immigration & Citizenship.
Third: Write a letter directly to the Minister for Immigration Citizenship, Parliament House, Canberra ACT 2600. Make submissions to the Minister that your case is exceptional and it is in the public interest that you will be granted a visa to stay in Australia permanently. Provide proof or evidence or document to back up your claim. For example, in the case of family illegal for 10 years – submit copy of passport where the child were minors when they arrived in Australia; proof of their school attendance and any certificate of commendations and argue that their formative years has been spent in Australia and it will be very difficult to return to the Philippines because of language and cultural barriers or argue that most of their relatives are in Australia. If the parents are skilled persons, submit proof of credentials and certificate of any special skills. Support from community orgnisations or individual might assist the representations.
In your letter attach a copy of your passport and the refusal letter from the Review Tribunal.
The good thing with this letter request is that there is no filing fee and not subject to time limit.
For those who require all aspects of immigration issues, this writer provides free initial telephone consultation and he can be contacted on 0412 269 439.
Jessie Icao is a practising solicitor in New South Wales and registered migration agent since 1993 (MARN 9367993). He is admitted as a lawyer in the Philippines. The information provided is of general nature and cannot be relied in its entirely. I suggest that you consult a registered migration agent or refer to the relevant law.