Ministerial Intervention Request: Australian Immigration Law Report

This report analyzes a request for ministerial intervention in Australian immigration law, specifically focusing on a protection visa application (subclass 866) under the Migration Act 1958. The case involves Arezoo Esfahani, who faced rejection from the Department of Home Affairs and the Administrative Appeals Tribunal (AAT) due to insufficient evidence of violence in her home country of Iran. The report highlights the applicant's claims of domestic violence, societal discrimination against her and her child born out of wedlock, and the impact of post-traumatic stress disorder (PTSD) on her ability to communicate effectively. It references relevant sections of the Migration Act, including sections 35, 48A, and 48B, to argue for ministerial intervention. The report emphasizes the potential for significant harm if the applicant is returned to Iran, citing degrading treatment and the lack of state protection. The applicant's migration agent requests the Minister to consider the application under Section 48B of the act and intervene in her capacity as Minister. The report highlights the applicant's vulnerability and the potential for further atrocities, including loss of life, if intervention is not granted.

Running head: AUSTRALIAN IMMIGRATION LAW
AUSTRALIAN IMMIGRATION LAW
Name of the Student
Name of the University
Author Note

1AUSTRALIAN IMMIGRATION LAW
Arezoo Esfahani
Dated: 02. 05. 2018
Dear Minister,
Request for Ministerial Intervention: Application ID __________ / File Number________
Through this letter I would like to request Ministerial Intervention as per the provisions
of Section 48B of the Migration Act, 1958.
Arezoo Esfahani arrived in Australia in April 2018 and applied for a protection visa
(subclass 866) as provided for by the provisions of Section 36 of the Migration Act, 19581. This
application was dismissed by the AAT on the grounds of credibility as Arezoo Esfahani refrained
from going into the details of the violence faced by her in her place of domicile. Mrs. Esfahani
had been married through a religious ceremony in Iran in 2014. She subsequently conceived a
child (Hamid Tajik). However, the Iranian authorities do not consider her marriage to be valid
one and her child is considered to be born out of wedlock. Due to this lack of recognition her
marriage is considered void and resultantly she had faced atrocities against herself and her child.
It is pertinent to note that since her marriage is considered void and her child is considered to be
born out of wedlock both of them face societal discrimination in Iran. It must also be considered
that the Iranian authorities did not cease inflicting such violence upon them and the threat of
continual conduct of the same kind is imminent.
Mrs. Arezoo Esfahani’s application was dismissed by the Department of Home Affairs
and the Administrative Appeals Tribunal on the ground that her contention of mental and
physical violence against her was not sufficient for grant of a protection visa as per the
1 Aleinikoff, T. Alexander, and Douglas Klusmeyer, eds. From migrants to citizens: Membership in a changing
world. Brookings Institution Press, 2013.

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provisions of Section 35 of the Migration Act, 1958. Thus, she has been granted a Bridging E
visa.
Section 35 (2) (aa) of the act provides that protection visas are granted where the minister
feels that removal of such a non-citizen would result in substantial harm. Section 35 (2A) of the
act defines significant harm and includes arbitrary loss of life [Section 35 (2A) (a)], torture
[Section 35 (2A) (c)], cruel or inhuman treatment or punishment [Section 35 (2A) (d)], degrading
treatment or punishment [Section 35 (2A) (e)]2. Thus when any or all of these conditions are met
the Australian government would have a protection obligation and thus would be duty bound to
issue a protection visa for such a person. Section 35 (2C) of the act deals with ineligibility for
protection visas this part of the act states that a person would be ineligible for a protection visa if
the minister feels that such a person has committed a crime against peace, a war crime or a crime
against humanity [Section 35 (2C) (a) (i)], a serious political crime before entering Australia
[Section 35 (2C) (a) (ii)] or is guilty of acts that are in contravention of the prescriptions of the
United Nations [Section 35 (2C) (a) (iii)]3. A person also becomes ineligible for a visa of this
class if the minister believes that the person is a danger to Australian security [Section 35 (2C)
(b) (i)] or the person was accused and convicted of a serious crime and is a danger to the
Australian community [Section 35 (2C) (a) (ii)]4.
Section 48A of the Migration Act, 1958 mandates that when a matter has been disposed
off by the AAT and there is no jurisdictional issue with the judgment then it shall be binding and
no right of appeal would be available in such a case5. Thus the person would be barred from
2 Schuck, Peter H. "Law and the Study of Migration." Migration Theory. Routledge, 2013. 247-266.
3 Piper, Nicola, ed. New perspectives on gender and migration: Livelihood, rights and entitlements. Routledge,
2013.
4 Migration Act, 1958.
5 Freilich, Joshua D., and Moshe Addad. Migration, culture conflict and crime. Routledge, 2017.

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applying for protection visas of this class in practicality. However in such a case ministerial
intervention is allowed as provided for by the provisions of Section 48B of the act. The DOHA
and the AAT’s disposal were purely based on the contentions of the applicant not being
successfully established adequately.
It has been determined through the expert report by Dr. Nasima Jahandar that Mrs.
Arezoo Esfahani is currently suffering from post-traumatic stress disorder (PTSD) and people
suffering from such a problem would not be able to communicate adequately about matters
relating to the circumstances that caused such a trauma. Mrs. Arezoo Esfahani has further stated
that she feels uncomfortable discussing violent acts in the presence of a male (which is evidence
of adverse institutionalization and her PTSD) and the tribunal member who presided over the
case of her visa application was a male.
Thus from the above circumstances it can be inferred that Mrs. Arezoo Esfahani would
be barred from obtaining or applying for protection visas as per the provisions of Section 48 (1)
of the Migration Act, 19586. She also states that she is still a victim of domestic violence at the
hands of her husband. As provided for by the provisions of Section 35 (2A) the treatment faced
by her in the past constitutes significant harm7. Additionally it has been reiterated that she would
continually fact the same treatment if she was removed to Iran. She is also not given the state
prescribed protection to married woman as her marriage is deemed void and her son is also not
given the state funded education he has a right to which is degrading treatment and would further
strengthen her claim to such a visa. Since she is from Iran the minister also has a statutory
obligation to consider the obligation. As per the provisions of Section 35 (2C) she would also not
6 Sonn, Christopher C., et al. "Negotiating belonging in Australia through storytelling and encounter." Identities 21.5
(2014): 551-569.
7Castles, Stephen, Graeme Hugo, and Ellie Vasta. "Rethinking migration and diversity in Australia:
introduction." Journal of Intercultural Studies 34.2 (2013): 115-121.

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be ineligible as she does not fall under any of the categories mentioned in the subsections and
cannot be reasonably presumed to belong to any such category8.
Thus, due to the facts explained above and the fact that her determination was made
through a process that she was uncomfortable with the judgment delivered by the AAT cannot be
construed to be adequate and cannot be deemed to have substantially addressed all the issues in
this application. Thus as her registered migration agent I humbly urge you to consider this
application under Section 48B of the act and intervene in your capacity as Minister. Refraining
from doing so would subject Mrs. Arezoo Esfahani and her child to further atrocities and may
even lead to the loss of life. Your applicant, as is duty bound prays for this relief.
I ask that you take the above into consideration when assessing my request for Ministerial
Intervention and am grateful for this consideration.
Yours sincerely,
[signature]
[Full name]
8 Argent, Neil, et al. "The amenity principle, internal migration, and rural development in Australia." Annals of the
Association of American Geographers 104.2 (2014): 305-318.