Navigating the Australian immigration system can be a challenging experience, especially when visa applications are refused or cancelled. For some individuals, the final hope lies in Ministerial Intervention – a unique mechanism that empowers the Minister to intervene in cases where there are compelling and compassionate circumstances that warrant a departure from the standard visa and immigration rules.
The Stages Leading to Ministerial Intervention
Before reaching the stage of Ministerial Intervention, an applicant must typically go through several stages within the immigration system:
- Visa application: initially, an individual submits a visa application to the Department of Home Affairs (the Department).
- Appeal: if the visa application is refused, or if there is a notification to cancel a visa, the individual may be able to apply for a review of the decision with a merits review tribunal. Normally, this will be the Administrative Review Tribunal (ART). For fast-track applicants in a protection visa matter, the appeal may be referred to the Immigration Assessment Authority (IAA).
- Court: should the appeal to the ART or IAA be unsuccessful, the next step could involve seeking judicial review in the courts.
If unsuccessful at point (2), or at point (3), an individual may consider and obtain advice on a Ministerial Intervention application.
What is Ministerial Intervention?
Ministerial Intervention is an application requesting that the Minister intervenes in an applicant’s immigration matter.
Under the Migration Act 1958 (Cth) (Act), the Minister has prescribed powers that authorises the Minister to replace a decision of a merits review tribunal (such as the ART or IAA).
It is a last resort option for an immigration matter, and an applicant should only consider applying if all their options for review are exhausted.
Older requests and the Minister’s Negative Personal Procedural Decisions
In the past, the grounds an individual could request Ministerial Intervention was broad, and largely based on policy colloquially referred to then as ‘Ministerial Guidelines’.
On 4 September 2025, the Minister for Immigration and Citizenship, Tony Burke MP, issued ‘Negative Personal Procedural Decisions’ (PPDs) to finalise a large number of older made under sections 351 and 501J of the Act.
The Negative PPDs were prompted by the High Court case of Davis v Minister for Immigration.
Davis was an applicant for ministerial intervention under section 351, whose request was considered and decided negatively by a delegate of the Minister. At the High Court, Davis successfully argued that the intervention powers under the Act must be exercised personally by the Minister and cannot be delegated to other officers.
The practical consequence of the High Court’s decision was that many requests that had previously been decided negatively by a delegate had to be re-opened.
The Minister stated that dealing with such a high volume of requests personally was not feasible. So, unless the Minister was already personally considering the case, all requests under section 351 of the Act submitted prior to 12 April 2023 would not be considered.
All applicants affected by the Negative PPDs were notified in writing.
Implementation of the Ministerial Instructions
Concurrently, the Minister issued new instructions to the Department of Home Affairs, replacing the Ministerial Guidelines.
The Ministerial Instructions outline more specific and more objective matters that the Minister may consider intervening in, as opposed to the “compelling and compassionate” criteria that applied previously.
As the parameters of ministerial intervention have now been made much clearer by these Instructions, Department officers can plainly identify which matters should and should not be brought to the Minister’s attention.
When can the Minister intervene?
The Minister can intervene in immigration matters where they consider that it is in the public interest to do. What is and what is not in the public interest is for the Minister to determine.
It is important to note that the Minister’s decision to intervene is non-compellable. This means that, even if the powers are enlivened, the Minister is under no obligation to act.
Requests that will not be brought to the Minister’s attention
The Ministerial Instructions clear state that the Minister deems it inappropriate to intervene in the following circumstances:
- The request is a “repeat request” (more on what this means below);
- The applicant is an unlawful non-citizen who is not in immigration detention and can make a valid bridging visa application, but has not done so at the time of lodgement of their ministerial intervention request;
- The individual could apply for a Partner visa while in Australia but is subject to condition 8503 (“no further stay”), and a request to waive the condition has not been sought or decided within three months of the lodgement of the ministerial intervention request;
- The individual is outside Australia having departed Australia;
- The individual has an ongoing application for a substantive visa with the Department;
- The individual has an ongoing application for merits review with a tribunal;
- The individual has had a visa decision remitted or set aside by a review tribunal or court and the matter remains under consideration;
- The request for ministerial intervention is made after the issuing of a notice of intention to remove the individual;
- The individual holds a Bridging Visa E with a condition 8512 (“depart by specified date”) imposed;
- The individual can make a valid application for a Medical Treatment visa and has been refused a permanent visa on health grounds, is over the age of 50 and has been assessed as being ‘unfit to depart’ Australia by a medical officer of the Commonwealth;
- The individual is an Australian citizen or permanent resident;
- The request only raises claims in relation to Australia’s non-refoulement obligations.
What is a “repeat request”?
As is noted above, the Minister would deem it inappropriate to consider a repeat request.
A current request for Ministerial Intervention would be a “repeat request” if there had been a “relevant earlier request” for the Minister to exercise their intervention powers. A “relevant earlier request” is defined as one which:
- was dealt with personally by the Minister;
- the Minister either declined to consider or declined to exercise the intervention powers;
- the Department notified the individual (or representative) of the Minister’s decision;
- the notification by the Department was made less than two years before the current request was received.
The one exception that has been made in the Ministerial Instructions is for those individuals who have indeed made a “relevant earlier request”, but in that earlier requests’s decision record it is noted that the individual is permitted to make a new request. For example, requests under section 351 which were affected by the Davis case and the Minister’s negative PPDs are not considered a “relevant earlier request”, and the notifications received by that cohort of individuals confirms this.
Requests that are to be brought to the Minister’s attention
The Minister has also made clear in their Instructions what circumstances they will consider intervening in. It is therefore important to note that an individual who does not fall within the scope of one of these is highly likely to receive a negative outcome.
The circumstances are as follows:
- The individual has evidence that they are the parent of an Australian citizen or permanent resident child, and the child is a minor at the time of the request for ministerial intervention;
- The individual:
- has skills of a relevant skilled occupation;
- can provide evidence that they are presently working in that occupation;
- can provide evidence of either a skills assessment or relevant qualification for that occupation; and
- have the support of their employer.
- The individual was previously the holder of a Business Innovation and Investment (Subclass 188) visa, and would not satisfy the criteria for the permanent Subclass 888 due to the time spent in Australia;
- The individual has provided evidence that they are the carer of an Australian citizen who needs care and has been issued with a Carer Visa Assessment Certificate (CVAC) which has an impairment rating of 30. They have also provided evidence that;
- the individual needing care has no local family members permanently residing in Australia; and
- the provision of care services are otherwise unavailable.
- The individual is excluded from the grant of a Protection visa or has one cancelled or refused on character grounds, but a protection finding has been made within the meaning of section 197C of the Migration Act;
- The individual is an immediate family member of a child who has been found to engage Australia’s non-refoulement obligations and subsequently holds a Protection visa;
- The individual is under the age of 18 and is in the care of an Australian State or Territory welfare authority;
- The individual is an adopted child and would been eligible for an Adoption (Subclass 102) visa, but for the fact their adoptive parent had not been resident overseas for 12 months at time of the visa application, and so the visa was refused for this reason;
- The individual first entered Australia as a minor and has lived in Australia for at least 50% of their life and;
- A medical officer has assessed that their mental or physical health would be adversely affected if they were to return to their country of Citizen or usual residence; and
- The individual does not have any family in their country of Citizenship or usual residence;
- The individual cannot return to their country of Citizenship or usual residence on a voluntary basis, due to authorities of that country refusing to co-operate to allow the individual’s return.
The process of seeking Ministerial Intervention
In short, to be able to seek Ministerial Intervention the individual
- must be lawfully present in Australia;
- must have ave received a decision at a merits review tribunal
- must have circumstances that fall within the scope of the Ministerial Instructions; and
- Are not in circumstances which the Minister would deem it ‘inappropriate’ to intervene
The process of applying for Ministerial Intervention involves several steps:
- Application: the applicant, or someone acting on their behalf, submits a request for Ministerial Intervention to the Minister’s Office. The application should include a detailed explanation of the circumstances warranting intervention, with reference to the Ministerial Instructions;
- Assessment: the Minister’s Office reviews the application and assesses whether the case falls within the scope of the Ministerial Instructions and is appropriate to refer to the Minister.
- Decision: the Minister makes the final decision whether to intervene or not. This decision is typically based on the information provided in the application, any recommendations, and the Minister’s own discretion.
What are the Minister’s powers to intervene?
The Minister’s power to intervene is derived from specific sections of the Migration Act, including:
- Section 351: allows the Minister to substitute a more favourable decision if it is in the public interest.
- Section 417: this section allows for intervention in protection visa matters (excluding fast-track applicants) on public interest grounds.
- Section 501: in certain cases, the Minister can lift a bar (such as under Section 46A or Section 48B) that prevents an individual from applying for a visa.
- Section 195A: this section relates specifically to immigration detention and allows the Minister to grant a visa to a person in detention if it is in the public interest.
- Section 197AB: this section relates specifically to immigration detention and allows the Minister to authorise an individual to reside at a specified place in the community instead of being held in immigration detention.
- Section 198E: the Minister can exempt a person from being transferred to offshore processing.
The Minister also has powers to intervene on matters when there is a ‘bar lift’ (where an individual is prevented from applying for specific types of visas under section 48 of the Migration Act).
Prospects
The Minister has no obligation to consider a Ministerial Intervention request or to make an intervention. As such, Ministerial intervention requests are often unsuccessful. Cases that are well-documented and clearly demonstrate the grounds for the Minister to intervene have a higher chance of success – however, success cannot be guaranteed even in strong cases.
Decision and outcomes
If successful, the Minister will make a decision favourable to the individual that is within the public interest. What this looks like will depend on a case-by-case basis.
If a Ministerial Intervention request is unsuccessful, the individual is expected to leave Australia as soon as possible and before their visa expires. If a person fails to leave Australia, they will become unlawful and at risk of deportation or immigration detention.
Conclusion
Applying for Ministerial Intervention is a difficult process and a last resort option for people who have exhausted all other methods of review.
If you need advice or assistance in seeking Ministerial Intervention or have any other immigration related queries, get in touch with our experienced team. Contact us by email at [email protected] or by phone at +61 3 9016 0484.
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This document does not constitute legal advice or create an attorney-client relationship. Please consult an immigration professional for up-to-date information.
