Section 195A — Minister may grant visa to detainee
Text of provision
application) Persons to whom section applies
(1) This section applies to a person who is in detention under section 189. Minister may grant visa
(2) If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).
(3) In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act. Minister not under duty to consider whether to exercise power
(4) The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances. Minister to exercise power personally
(5) The power under subsection (2) may only be exercised by the Minister personally. Tabling of information relating to the granting of visas
(6) If the Minister grants a visa under subsection (2), he or she must cause to be laid before each House of the Parliament a statement that (subject to subsection (7)):
(a) states that the Minister has granted a visa under this section; and
(b) sets out the Minister’s reasons for granting the visa, referring in particular to the Minister’s reasons for thinking that the grant is in the public interest. Migration Act 1958 323 Part 2 Arrival, presence and departure of persons Division 7 Detention of unlawful non-citizens
(7) A statement under subsection (6) in relation to a decision to grant a visa is not to include:
(a) the name of the person to whom the visa is granted; or
(b) any information that may identify the person to whom the visa is granted; or
(c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the grant of the visa—the name of that other person or any information that may identify that other person.
(8) A statement under subsection (6) is to be laid before each House of the Parliament within 15 sitting days of that House after:
(a) if the decision to grant the visa is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
(b) if the decision to grant the visa is made between 1 July and
Plain English
Section 195A provides that the Minister may, in the public interest, grant a visa to a person who is in immigration detention even if the person has not applied for a visa and does not meet the usual criteria. This power is exercised at the Minister's personal discretion and is not subject to merits review. The Minister is not required to consider exercising this power and is not required to explain why they did not act.
Practical effect
Section 195A is one of several "last resort" ministerial intervention powers in the Migration Act (alongside s 351, s 417, and s 501J). These powers exist to provide relief in compelling individual cases that fall outside the standard framework. Applications for ministerial intervention are not applications in the statutory sense — they are requests. The Minister's failure to exercise the power cannot be challenged by judicial review. The decision to grant must meet public interest criteria, and the Minister publishes guidelines on the types of cases that may attract consideration.