New Ministerial Intervention Guidelines Introduced – What You Need to Know (September 2025 Update)

Introduction

On 4th and 17th of September 2025, the Australian Government implemented significant changes to the ministerial intervention process by issuing new instructions under the Migration Act 1958 (Cth). These updates fundamentally alter how the Department of Home Affairs manages a request for ministerial intervention, establishing a new, more objective framework for assessing these cases.

For individuals facing a visa refusal or cancellation, ministerial intervention often represents the final avenue available for their case to be considered in the public interest. This guide provides essential information on these critical updates, explaining the new guidelines and what they mean for anyone preparing to submit a new request for the Minister for Immigration to intervene.

Why the Ministerial Intervention Guidelines Changed in September 2025

The High Court’s Decision in the Davis Case

The primary reason for the new ministerial intervention guidelines was the High Court of Australia’s landmark decision in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10. This case held that the Department of Home Affairs’ previous process for handling intervention requests was unlawful.

The court ruled that departmental officers were invalidly using subjective criteria and broad guidelines to decide which cases should be referred to the Minister for Immigration. It emphasised that, by law, the Minister’s public interest and personal intervention powers must be exercised personally and cannot be delegated.

As a result, the High Court’s finding left a significant backlog of around 30,000 unresolved requests, creating an urgent need for a new, legally sound framework.

The Government’s Aims for the New Framework

In response to the High Court’s ruling, the government introduced new ministerial instructions with several key objectives. This framework was designed to create a more structured and transparent process capable of withstanding legal challenges while also managing the high volume of ministerial intervention requests.

Specifically, the government’s main goals include:

• Improving integrity and efficiency: Introducing stricter criteria to discourage unmeritorious or speculative applications, which allows the Department of Home Affairs to process genuine requests more efficiently.
• Establishing clear and objective criteria: Replacing the old, subjective “unique or exceptional circumstances” test with precise standards for when a case should be referred to the Minister.
• Enhancing transparency: Setting out specific criteria so that applicants, immigration lawyers, and departmental officers understand how decisions are made.
• Creating a legally robust process: Designing the framework to be legally sound, thereby reducing the risk of future court challenges similar to the Davis case.

An Overview of the Three New Ministerial Instructions

Requests Under Sections 351 & 501J for ART Decisions

These new ministerial instructions apply to individuals who have received an unfavourable decision from the Administrative Review Tribunal (ART). Under sections 351 and 501J of the Migration Act 1958 (Cth), the Minister for Immigration has the power to intervene and substitute the ART’s decision with a more favourable one if they believe doing so is in the public interest.

This power covers most visa types following a review by the ART. Specifically:

• Section 351 provides a general power for the Minister to intervene in cases across various visa categories, such as partner, student, or skilled visas.
• Section 501J applies specifically to ART decisions related to the refusal or cancellation of a protection visa, often on character grounds.

Requests Under Subsection 46A(2) for Unauthorised Maritime Arrivals

This guideline is for Unauthorised Maritime Arrivals (UMAs) who are legally barred from making a valid visa application while in Australia. Subsection 46A(2) of the Migration Act 1958 (Cth) allows the Minister for Immigration to lift this application bar if it is deemed to be in the public interest.

Once the bar is lifted, the individual is permitted to lodge a valid application for a specific class of visa. This intervention power acts as a crucial pathway for UMAs who may have compelling protection claims or other circumstances that warrant consideration through a statutory process.

Requests Under Subsection 48B(1) for Protection Visa Re-applications

This instruction addresses individuals whose Protection Visa application was refused or whose Protection Visa was cancelled. Under the Migration Act 1958 (Cth), these individuals are generally barred from lodging another Protection Visa application while remaining in Australia. However, subsection 48B(1) grants the Minister for Immigration a personal, non-compellable power to lift this bar if it is in the public interest. Specifically:

• The Minister may lift the application bar, thereby enabling the individual to make a new Protection Visa request.
• Upon intervention, the individual is given seven working days to submit a fresh application.
• This mechanism is often invoked when new circumstances or claims arise after the initial refusal.

Key Changes to the Ministerial Intervention Process

Shift from Subjective to Objective Criteria

The new ministerial instructions, introduced on 4 September 2025, fundamentally alter how the Department of Home Affairs assesses requests for ministerial intervention. In place of the previous broad and subjective “unique or exceptional circumstances” test—which granted officers wide discretion—the instructions now rely on clear and objective criteria.

As a result:

• Previously, departmental officers evaluated requests under a flexible, subjective standard.
• Now, only those requests that clearly meet the specific criteria will be referred to the Minister for Immigration.

This shift is designed to create a more transparent, consistent and legally sound process, thereby reducing the risk of legal challenges.

How Existing & New Intervention Requests Are Handled

To address the estimated 30,000 pending cases, the government has established a clear process for both existing and future submissions. Specifically, Personal Procedural Decisions (PPDs) are being used to finalise requests lodged under the old guidelines.

The handling of intervention requests is now divided based on their submission date:

• Requests lodged before April 2023: Most unfinalised requests made prior to the High Court’s Davis decision will be closed.
• Requests lodged between April 2023 and 4 September 2025: These too will be finalised and closed, unless they already satisfy the new objective criteria.
• New requests lodged after 4 September 2025: All new submissions are assessed strictly against the objective criteria set out in the ministerial instructions.

The Department of Home Affairs will notify individuals whose previous requests have been finalised under a PPD. Importantly, they may submit a new request, which will then be evaluated under the more stringent framework.

Circumstances for Referral Under the New Guidelines

Appropriate Circumstances for a Referral to the Minister

Under the new ministerial instructions, a request for ministerial intervention will only be referred to the Minister for Immigration for personal consideration if it meets specific, objective criteria. These conditions are designed to identify cases with compelling circumstances that warrant the Minister’s personal review.

Some of the key circumstances considered appropriate for referral include:

• Family ties to an Australian child: The individual is the parent of an Australian citizen or permanent resident child who is a minor when the intervention request is made.
• Skilled occupation: The individual possesses skills for a relevant skilled occupation, is currently employed in that role, and can provide evidence of their qualifications and employer support.
• Business investment visa history: The person previously held a Subclass 188 (Business Innovation and Investment (Provisional)) visa and now meets the residency requirements for a permanent Subclass 888 visa.
• Carer for an Australian citizen: The individual is the carer for an Australian citizen who has a significant medical impairment and has no other family members in Australia available to provide care.
• Protection finding on character grounds: The individual has been excluded from a protection visa on character grounds but has otherwise been found to engage Australia’s non-refoulement obligations.
• Long-term residence since childhood: The person entered Australia as a minor, has spent at least half their life here, and a Commonwealth medical officer confirms their health would be adversely affected if they had to return to a country where they have no family.
• Inability to return home: The individual cannot voluntarily return to their country of citizenship or usual residence because the authorities of that country refuse to cooperate, for instance, by not issuing necessary travel documents.

Inappropriate Circumstances for a Referral to the Minister

The new guidelines also clearly define situations in which a ministerial intervention request is inappropriate for referral. In these cases, the Department of Home Affairs will finalise the matter without sending it to the Minister, ensuring that personal and non-compellable intervention powers are reserved for the most exceptional cases.

A request will generally not be referred to the Minister if:

• The request is a repeat submission: A previous request from the same individual was personally considered and declined by a Minister within the last two years.
• The individual is outside Australia: The person seeking intervention has departed and is not currently in Australia.
• There is an ongoing visa application: The individual has another substantive visa application that is still being processed by the Department of Home Affairs.
• A merits review is in progress: The person has an ongoing application for a merits review of a visa decision with the Administrative Review Tribunal.
• A decision has been remitted: A court or tribunal has set aside a previous visa decision, and the matter is back with the Department for reconsideration.
• The individual can apply for a Bridging visa: An unlawful non-citizen who is not in immigration detention has the option to make a valid bridging visa application, such as a Bridging Visa E (BVE) for unlawful non-citizens, but has failed to do so.
• Claims relate only to non-refoulement: The request is based solely on Australia’s non-refoulement obligations, which are typically addressed through the protection visa process.

How to Make a Request Under the New Guidelines

Submitting a New Request for Ministerial Intervention

Individuals whose previous ministerial intervention requests were closed following the 4 September 2025 changes are permitted to submit a new request. Importantly, any new submission will be assessed strictly against the objective criteria set out in the updated ministerial instructions.

To be considered properly made, a request must:

• Be submitted in writing.
• Clearly specify which of the Minister for Immigration’s intervention powers under the Migration Act 1958 (Cth) is being invoked.
• Identify the specific criteria from the new guidelines that the case meets.
• Include all relevant information and supporting evidence to allow the Department of Home Affairs to conduct its assessment.

The Importance of Seeking Professional Legal Advice

The new framework for ministerial intervention is one of many complex migration matters, and the success rate for these requests is historically very low. Furthermore, the updated guidelines have introduced a stricter, more objective process, making it essential to prepare a thorough and persuasive submission. For these reasons, seeking professional assistance from an experienced immigration lawyer is highly recommended.

An immigration lawyer can provide significant benefits throughout the process, including:

• Assessing your eligibility: An honest evaluation of whether your case has a reasonable chance of success under the new, stringent criteria.
• Preparing a professional submission: Structuring your request to effectively highlight the most compelling factors and align your circumstances with the specific public interest criteria.
• Gathering crucial evidence: Obtaining necessary supporting documents—such as medical reports, country information, and character references—to build a strong case.
• Navigating the new guidelines: Understanding the nuances of the updated instructions and ensuring your request is correctly prepared and submitted.

Conclusion

The 4 September 2025 changes to ministerial intervention have established a more structured and legally robust framework, replacing the previous subjective guidelines in response to the High Court’s Davis decision. These new instructions introduce clear, objective criteria that determine whether a request for ministerial intervention will be referred to the Minister for Immigration, fundamentally altering the process for all new and existing visa appeals and cases.

Navigating this complex new landscape requires a deep understanding of the updated legal requirements and strict criteria. For trusted expertise and specialised services tailored to your needs, contact the experienced ministerial intervention lawyers at Moya Migration Law in Adelaide to ensure your submission is prepared effectively and presents the strongest possible case for intervention.

Frequently Asked Questions (FAQ)