The applicant, both in written submissions and at hearing, requested that if a decision is made to affirm the decision under review, that the Tribunal refer the matter to the Minister for Immigration and Citizenship (the Minister) to intervene and substitute a decision more favourable to the applicants.
The Tribunal notes that on 4 September 2025, the Minister issued new instructions to the Department for dealing with requests for ministerial intervention under ss 351 and 501J of the Migration Act 1958. Under ss 351 and 501J, the Minister may substitute for a decision of the Tribunal, a decision that is more favourable to an applicant if the Minister thinks that it is in the public interest. The new instructions apply to ministerial intervention requests made by an individual or the Tribunal on or after 4 September 2025.
The Tribunal notes that it has no statutory obligation to consider whether matters should be referred to the Minister for the consideration of their public interest powers, and nor is there any statutory power for the Tribunal to make a binding recommendation in this regard.
The Tribunal considers that if the request meets at least one of the criteria in Part 5, , it is to be referred to a Minister on a submission by the Department. The criteria in are prescriptive, unlike the previous instruction which required the Department to assess whether the case had 'unique or exceptional circumstances'.
The Tribunal has considered the section 13 criteria and notes that the applicant's nominated occupation is a Solid Plasterer (ANZSCO 333212) which is listed as a skilled occupation on the current Medium and Long-term Strategic Skills List, as set out in LIN 19/051. The Tribunal considers that for this reason, the applicant is an individual who has the skills that are required for a relevant skilled occupation mentioned in section 14, as prescribed by section 13.1.2.
The Tribunal further relies on the applicant's curriculum vitae, employment contracts and reference letters provided to find that the applicant is currently working in the relevant skilled occupation.
The Tribunal considers that the only evidence it does not have, that is required for ministerial intervention referral by section 14.2.1, is a past or current positive skills assessment in relation to the skills required for the relevant skilled occupation, or evidence of an appropriate qualification in those skills.
The Tribunal considers that it is still open to it to refer the matter to the Minister in the absence of this, however notes that in the meantime it would be prudent for the applicant to provide such evidence as soon as possible for the Department to consider.
The Tribunal notes that the applicant's written and oral submissions regarding ministerial intervention referral were detailed and contained submissions regarding the applicants' visa history, lengthy review process and time in Australia, cost of living and disadvantages of their uncertain visa status, significance of professional work to Australia, hardships endured as a result of proceedings, compulsory military service facing secondary applicants if they were to be returned and the difficulty of adjusting to what is essentially a foreign culture if they were to be returned to their country of origin. The Tribunal accepts all these submissions made by the applicants, however, is not satisfied that they meet one of the prescribed criteria for ministerial intervention in section 13.
The matter is referred for ministerial intervention consideration based on the applicant satisfying the section 13.1.2 criterion.
[2]
The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.
[3]
Representative for the Applicant: Mr Gergis Ayoub (MARN: 5510267)
Parties
Applicant/Plaintiff:
Bal
Respondent/Defendant:
MIMA
Cases Cited (5)
Boghdady (Migration) [2025] ARTA 2618 (29 October 2025)
The Tribunal notes the applicant's submissions made regarding the doctrine of estoppel and that it should be used to deliver consistency in decision making and justice and fairness for the applicant.
The Tribunal recognises that there are several types of estoppel that may have a role in administrative law and the Tribunal context. However, the Tribunal notes that attempts to use estoppel to waive statutory requirements, or to waive or extend timeframes in the Migration context have generally been unsuccessful. For example, the Tribunal notes the matter of Singh v MIAC [2011] FCMA 832 in which the applicant claimed that he had relied on advice from the Department to lodge his application by post, which resulted in his application being received late and therefore outside of the required timeframe as set out in the regulations. The Tribunal also notes the matter of Singh v MIAC[2010] FMCA 305 in which the Departmental notification of the refusal decision stated an incorrect timeframe for the applicant to apply for administrative review. The Tribunal found it did not have jurisdiction to review the matter as it was lodged out of time and the Full Federal Court held that administrative decision-makers did not have the power to alter timeframes set by the Migration Act and the Regulations.
The Tribunal considers that both examples, although factually different, consider similar circumstances in which the Department has provided the applicant with incorrect advice that was relied on by the applicant which directly resulted in the applicant's inability to comply with a regulatory requirement. The Tribunal relies on the reasoning of the courts in this regard and finds that it applies to the circumstances of this case to the extent that the Tribunal is not satisfied that the Department's conduct gives rise to an estoppel having the effect of altering the requirements set out in the Act and Regulations.