Ministerial Intervention – New Guidelines Released

On 4 September 2025, Minister Tony Burke signed three new Ministerial Instructions that change how requests for Ministerial Intervention are to be managed by the Department of Home Affairs.

These instructions cover:

1. Requests for the Minister’s intervention powers under sections 351 and 501J of the Migration Act 1958.
2. Processing requests for Ministerial Intervention under subsection 46A(2).
3. Processing requests for Ministerial Intervention under subsection 48B(1).

Why have the guidelines been changed?

The new framework follows the High Court’s decision in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10.

That case found the Department’s use of subjective criteria for referrals to the Minister was invalid, which left a large number of requests unresolved.

The updated guidelines aim to:

• introduce clear and objective threshold criteria;
• ensure greater transparency;
• reduce unmeritorious or speculative requests; and
• create a more legally robust process that limits the risk of further legal challenges

What is the impact to current and new requests for Ministerial Intervention?

There are currently around 30,000 Ministerial Intervention requests on hand. The new guidelines outline how these will be managed:

• Pre-Davis caseload: Existing requests affected by the Davis decision, and requests under sections 351 and 501J, will be closed using Personal Procedural Decisions (PPDs), unless exempted. Individuals whose matters are closed may reapply under the new framework.
  
• Post-Davis caseload: New requests will be assessed against the new objective criteria set out in the guidelines. Requests that meet the new standards may proceed to the Minister; those that do not will be closed.

What has changed in the guidelines?

While the three guidelines share a consistent structure, the instructions relating to sections 351 and 501J are more detailed.

Key elements across the guidelines include:

• clarification of the public interest basis for intervention;
• who can make a request and how it must be lodged;
• lists of appropriate and inappropriate circumstances for referral;
• guidance on how the Department should assess and process requests;
• use of both full and summary submissions to the Minister; and
• confirmation of when the Minister’s powers are formally enlivened

What powers have been covered?

• Sections 351 & 501J: Allow the Minister to substitute a more favourable decision than that of the Administrative Review Tribunal (ART), in the public interest. Section 501J applies specifically to refusals or cancellations of protection visas.
  
• Subsection 46A(2): Permits the Minister to allow an Unauthorised Maritime Arrival (UMA) to make a valid visa application onshore, if it is in the public interest.
  
• Subsection 48B(1): Allows the Minister to lift the section 48A bar, giving a person seven days to apply for a further protection visa while in Australia.

What this means for people who have submitted or are submitting a request for Ministerial Intervention

These guidelines represent a reset of how Ministerial Intervention requests will be handled. While they provide a clearer framework, they also impose stricter limits on when and how cases can be referred to the Minister.

Given the complexity of Ministerial Intervention and the limited circumstances in which the Minister will personally intervene, it is essential for individuals to seek legal advice before proceeding with a request for Ministerial Intervention.