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It is important to note two things:
Under s 417 of the Migration Act, the Minister for Immigration ("the Minister") has the power to substitute a refusal of the RRT for a more favourable decision, if the Minister thinks that it is in the "public interest" to do so. The Minister may decide to substitute a decision and grant a visa to the applicant. There are Guidelines for the identification of cases which may be considered unique or exceptional (see further below). Note that the Minister cannot substitute a primary decision (i.e. made by a DIMIA officer) to refuse a Protection visa. An applicant must have exhausted review rights at the RRT (and, if applicable, judicial review) for the Minister to consider exercise of the power under s 417. In other words, an applicant should either lodge a s 417 submission after an RRT refusal (if not seeking judicial review), or after refusal at the Federal/High Courts. The power is a discretionary power and is personal to the Minister. It is generally considered to be a non-compellable and non- appellable power (See Minister for Immigration and Multicultural Affairs and Bronwyn McNaughton v Tosn Ozmanian (Full Federal Court) (1996) 141 ALR 322; and Tosn Ozmanian v Minister for Immigration, Local Government & Ethnic Affairs (1996) 137 ALR 103). Neither the Act not the Migration Regulations provide any detail or direction as to when the power should or should not be exercised. The "public interest" was considered by the Court in Chaudhary v Minister for Immigration and Ethnic Affairs (1994) 121 ALR 315. There is no limit on the number of s 417 "applications' which may be lodged. However, repeat requests subsequent to an initial refusal by the Minister to intervene do not entitle the applicant to a Bridging Visa. Consequently, an applicant who makes a repeat request is liable for detention and removal from Australia at any time, whether or not the Minister has made a decision on the further request. In short, repeat requests do NOT protect an applicant from detention or removal. Requests to the Minister under s 417 should be made in writing to the Minister. It may also be useful to send a copy of the request to both the Departmental case officer who made the original decision on the application, and also to the Manager, Ministerials & Decision Support, DIMIA, Onshore Protection, in the relevant state or territory. It is critical that s 417 requests specifically and clearly address relevant matters which fall under the Ministerial Guidelines, or which otherwise could found a compelling argument that the applicant's circumstances are unique or exceptional and that intervention would be in the public interest. A useful approach is to structure the submission according to relevant issue headings derived from the Ministerial Guidelines. In addition, it is important to avoid merely re-submitting that the applicant is, in fact, a 'refugee' and should have been so found by the RRT (e.g. re- arguing the case). While there may be circumstances where matters relevant to the RRT's findings (including errors or omissions of the RRT) could be referred to, in general, the point of the submission is to indicate why, although the applicant was found not to meet the "narrow' definition of a refugee, there are nevertheless compelling humanitarian grounds for intervention which justify the grant of a visa. It is also important to provide as much supporting evidence as possible. This may include support letters from the community (e.g. local religious/church group; local MP; community leaders), as well as any evidence which has come to light since the RRT decision which may strengthen the claims of the applicant. If there were adverse credibility findings at the RRT, evidence which addresses such concerns may be particularly useful. In general, adverse credibility findings at the RRT may provide a significant additional obstacle to the Minister intervening. Thus, the more evidence the better which refutes or otherwise satisfactorily explains any adverse credibility findings at either the Departmental and/or RRT stage of the process. PROVIDING ASSISTANCEYou should only write supporting letters for people if you believe they do genuinely require the Minister's discretion on humanitarian grounds writing a 417 support letter should be considered akin to writing a character reference.Remember - the text of letter is persuasive rather than legal: why should the Minister exercise his discretion in this particular case? What is the public interest? This page last updated 4th May 2004 |