Section 48B ministerial intervention to reapply for a protection visa – if you have applied and refused an onshore protection visa application, you are barred by s 48A from lodging another protection visa application. However, you may request for ministerial intervention under s 48B to lift the bar so that you are able to make another protection visa application.
Section 48B ministerial intervention – the discretionary powers given to the Minister are personal and non-compellable powers as there is no duty for the Minister to consider using any of the powers or has a duty to use any of the powers.
Normally the Minister will only intervene if the he or she thinks it is in the public interest to do so.
Under s 48A(1) and s 48A(1AA), a person who made an application for a Protection visa that was refused cannot apply again while in Australia.
If your protection visa was cancelled, you may not apply for another Protection visa again (s 48A(1B)).
A protection visa includes a permanent Protection visa, a Temporary Protection visa or a SHEV.
However, you may make a Section 48B ministerial intervention request to ask the Minister to exercise his public interest power under s 48B to lift the s 48A bar on you making another Protection visa application. If the s 48A bar is lifted, you will have 7 working days on which the notice was given to lodge a protection visa application.
What is or what is not in the public interest is for the Minister to decide. Under s 48B(2), the Minister’s public interest power can only be exercised by the Minister personally. There is no obligation on the Minister to exercise the power (s 48B(2)).
The purpose of s 48A bar is to prevent the use of application for a Protection visa to delay their removal and to circumvent the immigration requirements of Australia.
However, s 48B allows the Minister in very limited circumstances and where there are exceptional and compelling circumstances where a person is making genuine claims that could not be raised in their previous Protection visa application.
The Minister will only consider exercising his public interest power in cases which are referred by the Department following the Ministerial guidelines.
Principles for applying s 48B Ministerial intervention
- If you do not engage Australia’s non-refoulement obligations, the Minister will not consider unless there are exceptional circumstances
- Not inclined to consider if you have made more than 1 Ministerial intervention
- Will use a risk-based approach to guide the Minister’s consideration
When will the Minister consider s 48B Ministerial intervention?
- When there is new information or significant changes in circumstances occurred subsequent to a Protection visa refusal decision.
- New information must relate to Australia’s non-refoulement obligations under Convention Relating to the Status of Refugees, ICCPR and CAT. CROC is not relevant to the consideration of whether or not the Minister will exercise s 48B power.
- When the Minister personally request for the person’s case to be referred to him for consideration
When will the Minister not consider s 48B Ministerial intervention?
- No new information or changed circumstances
- New information about a claim that was previously found not to be credible or not substantiated by objective country information, or made for the sole purpose of delaying or frustrating removal from Australia
- Request made within 6 months of a protection visa decision except in exceptional circumstances such as gender based claims, country of reference is Afghanistan, Iraq, Syria, Libya, Yemen, South Sudan or Somalia
- Unlawful non-citizen – they are expected to leave Australia
- Repeat s 48B requests because each time their claims become less compelling, owing to the opportunities already afforded to put forward all protection claims.
- Protection visa that has been cancelled unless the person engages Australia’s non-refoulement obligations. If able to meet the grant of a protection visa, Ministerial intervention should be under s 48A and s 195, otherwise just under s 195A.
Information that will be considered under Ministerial intervention
- Brief overview of the person’s circumstances, including family links or close relationship to an Australian citizen or PR
- Unresolved migration litigation
- How s 48B request meets the Ministerial guidelines
- Letters of support
- Character or security concerns
- Representations from UNHCR or Commonwealth Ombudsman, the Australian Human Rights Commissions, MPs or other key organisations
Whether the Minister has decided not to exercise Section 48B ministerial intervention power or the Department decided not to refer, or Minister has decided to exercise s 48B power, you will be notified. If the Minister decided to exercise s 48B power, you will be required to lodge a Protection visa application within 7 working days following the day of notification.
The Minister is not bound by the Ministerial guidelines.
When assessing a Section 48B ministerial intervention request, the officer is not required to assess whether you engaged protection obligation under s 36(2), instead whether your request satisfy the Ministerial guidelines or not.
There are 3 possible outcomes:
- Inappropriate to consider, eg, person is excluded by the Minister’s guidelines – unlawful non-citizen (not in immigration detention) who did not attempt to regularise their immigration status
- Does not meet the guidelines for referral to the Minister, eg no new claims presented, or new claims are not plausible or not likely to engage Australia’s protection obligations; or
- Meet the guidelines for referral to the Minister
Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) to help you make a Section 48B ministerial intervention request, or click here to learn more about Australian visas.
