When the Visa Could Not Be Won: Ministerial Intervention to Keep a Family Together

The challenge

Our clients were a family who had spent well over a decade building their life in Australia. They have several children, born here, and one of them had lived their whole life in Australia and held Australian citizenship. After years of effort and a series of unsuccessful applications, they had exhausted their avenues to remain, and they now faced removal to their home country.

For this family, removal was not simply a matter of returning home. Because of the way their home country’s citizenship and dual-nationality laws operate, their Australian citizen child may have had no right to reside there at all. The family faced an impossible choice: leave Australia and risk being permanently separated from their citizen child, or take a child who had never known another country to a place where they had no secure status, and where the health system and economy were in deep crisis.

The visa application in front of us, a Medical Treatment visa, could not be won on its criteria. We knew that from the outset. Fighting it to the end would have changed nothing.

Our approach

So we did not fight it. We made a deliberate strategic decision to use the review process for what it could actually achieve.

We conceded to the Tribunal that the visa criteria were not met and asked it to decide the matter without a contested hearing. That freed the Tribunal to turn to the one avenue capable of helping this family: a referral to the Minister to consider intervening under section 351 of the Migration Act 1958 (Cth), a discretionary power to substitute a more favourable decision where it is in the public interest to do so.

We then built a detailed, evidence-based case for why this family’s circumstances were genuinely unique and exceptional. At its centre was the best interests of the Australian citizen child, a primary consideration under Australia’s obligations through the Convention on the Rights of the Child. We set out the real risk that the child could be separated from their family or effectively forced from their own country, the citizenship and residence barriers they faced in the home country, and the serious economic and health harm the family would face on return, supported by current country information.

The Tribunal accepted our submissions. While it was bound to agree with the Department’s refusal, it did agree that the case warranted the Minister’s attention and referred it, finding that strong compassionate circumstances existed that, if not recognised, would result in serious, ongoing and irreversible harm to an Australian family unit that included an Australian citizen.

The outcome

The Minister intervened.

He granted the family substituted visitor visas, restoring their lawful status in Australia. More importantly, those visas opened a door that had been firmly closed: they allowed the family to apply onshore for an employer-sponsored permanent residence visa.

A family who had been facing removal and the prospect of separation from their Australian child now had a clear and lawful pathway to remaining in Australia permanently, and together.

Why it matters

The best outcome is not always the one the visa application appears to be about, and not every case is won at the Tribunal. Knowing when to concede a point that cannot be won, and to redirect the process toward the avenue that can genuinely help, is its own form of advocacy. Ministerial intervention is a discretionary power of last resort, and persuading a Tribunal to refer a matter, and then a Minister to act on it, demands a precise and compelling case built around what the law treats as truly exceptional. For this family, that strategic judgment was the difference between removal and a future in Australia.

Details in this case study have been anonymised to protect our clients’ privacy.