Who can Make a Referral for Ministerial Intervention for Protection Visa Refusal or Cancelled?
Suppose you have an application for a Protection (Subclass 866) Visa, a Temporary Protection visa or a Safe Haven Enterprise visa that has been refused or cancelled. In that case, typically, you are not eligible to apply for another protection visa. However, you may still have a limited option to request Ministerial Intervention under section 48B of the Migration Act 1958. This process is complex and only applies in exceptional circumstances, so it is important to understand who is eligible, when it can be used, and what to include.
What is a Section 48B Request?
A section 48B request asks the Minister of Immigration to consider allowing you to lodge a new Protection (SC866) visa application, despite the legal restriction after a refusal or cancellation. This power is discretionary to the Minister and is used only in rare and compelling situations.
Who Can Make a Referral for Ministerial Intervention for Protection Visa Refusal or Cancellation?
You may be eligible to make a Ministerial Intervention request under section 48B if:
Your protection visa (SC 866) visa was refused or cancelled; and
You now have new and compelling claims that you could not raise in your original application.
What Are Included As “New and Compelling Claims”?
You only have one opportunity to present your matter under section 48B. Your claims must:
Be genuinely new and not available or known to you at the time of your original application.
Raise serious risks to your life or safety if you return to your home country.
Be credible, evidence-based and specific to your situation.
The Minister will not consider protection claims that:
Have already been assessed in your original application or the Administrative Review Tribunal (ART) or the AAT.
These are repeated or previously rejected claims.
What is the Timing of Ministerial Consideration?
In general, the Department will not refer your case to the Minister within:
6 months of your Protection visa refusal, or
6 months of an ART or AAT decision, unless you are a national of one of the following countries:
Eligible for early referral (within 6 months):
Afghanistan
Iraq
Libya
Somalia
South Sudan
Syria
Nationals of the following countries are not eligible for referral for Ministerial Intervention under section 48B:
Austria
Belgium
Canada
Cyprus
Denmark
Estonia
Finland
France
Germany
Ireland
Italy
Japan
Malta
Netherlands
New Zealand
Norway
Portugal
South Korea
Spain
Sweden
Switzerland
United Kingdom
United States of America
If you are from one of these countries and your protection visa (SC 866) has been refused, we suggest that you speak with an Accredited Specialist in Immigration Law if you want to continue to stay in Australia. For your visa matter, speak with Jason Ling or Angela De Silva, our Accredited Specialist in Immigration Law.
How Can Agape Henry Crux Help
At Agape Henry Crux, we are spearheaded by two Accredited Specialists in Immigration Law who provide tailored and creative strategies for complex matters to meet individuals’ visa goals. The team of immigration lawyers specialise in handling highly complex matters. You can schedule an appointment with one of our lawyers or agents to seek professional advice by calling 02-8310 5230 or emailing us at info@ahclawyers.com.
We speak fluent English, Mandarin and Cantonese. We can also help you arrange an interpreter if this isn't your language.
This article/presentation (“publication”) does not deal extensively with important topics or changes in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you find this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances, please contact our office.
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