Section 417 Applications

417 Minister may substitute more favourable decision

(1) If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 415 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

(2) In exercising the power under subsection (1) on or after 1 September 1994, the Minister is not bound by Subdivision AA or AC of Division 3 of Part 2 or by the regulations, but is bound by all other provisions of this Act.

The Minister has published guidelines concerning the circumstances in which he is prepared to consider exercising that discretion.  The guidelines appear in Migration Series Instruction (MSI) 225.   He tends to prefer exercising that discretion in cases where the applicant has relatives in Australia and where the applicant was found to be generally credible by the RRT.  A request for humanitarian consideration should be in the form of a properly argued submission which sets out the applicant's background and how they fall within the guidelines.  A copy of the RRT decision should be attached to such a submission.  Furthermore, if an applicant can satisfy the criteria for another visa class (eg skilled) the submission should address the criteria for that visa class and append any necessary supporting documentation.

The RRT itself has a mechanism for identifying cases which should go for Ministerial consideration.  The member ticks a box on the decision summary sheet and it is sent to a special unit within the Dept.  The Minister has told the RRT that he wants its Members to identify cases for humanitarian discretion and that such cases would be taken seriously.  However, there is no guarantee that even the applicant falls within the guidelines in MSI-225 that the Minister will consider it.   The ones which pass the first sift go to a political adviser on the Minister's personal staff who then decides whether or not to pass it on to the Minister.

Cases which are supported by a Federal MP will at least get a letter personally signed by the Minister so that the case will come to his attention though once again it will usually be an adviser who drafts the correspondence.

Apparently, this present Minister has exercised his discretion in favour of applicants more than any of his predecessors.

(information provided by Roz Germov)