New Ministerial Intervention Guidelines Introduced – What You Need to Know (September 2025 Update)
On 4 September 2025, Minister Tony Burke signed three new Ministerial Instructions (MIs) that significantly change the framework for Ministerial Intervention requests under the Migration Act 1958. These new guidelines apply to:
Requests for the use of the Minister’s intervention power under sections 351 and 501J
Processing of requests under subsection 46A(2) (Unauthorised Maritime Arrivals)
Processing of requests under subsection 48B(1) (Protection visa re-applications)
These reforms come in response to the 2023 High Court decision in Davis v Minister for Immigration, which invalidated the use of subjective criteria by departmental officers in referring matters to the Minister. The result is a new, more objective and structured framework designed to reduce legal challenges and clarify how requests should be handled.
Why These Changes Matter
The Davis decision significantly impacted the Department’s ability to finalise many MI requests, particularly where subjective judgment was previously used. As a result, around 30,000 pending Ministerial Intervention requests were left unresolved. The new guidelines are intended to:
Set clear, objective referral criteria
Enhance transparency in decision-making
Discourage unmeritorious applications
Establish a legally robust process for departmental officers and applicants
Breakdown of the Three New Ministerial Instructions
1. Ministerial Intervention under Sections 351 and 501J
Applies to Administrative Review Tribunal (ART) decisions.
Allows the Minister to substitute a more favourable decision if it’s in the public interest.
Requests can be made directly by the affected applicant or by the tribunal itself.
Excludes unlawful non-citizens under subsection 197E(1).
The Minister can decline to consider a request or choose not to intervene, even after consideration.
This is the only guideline of the three that includes transitional provisions, ensuring continuity in the assessment of pre-existing requests.
2. Ministerial Intervention under Subsection 46A(2)
Applies to Unauthorised Maritime Arrivals (UMAs) who are barred from applying for a visa while in Australia.
Under this guideline, the Minister may lift this bar in the public interest, allowing a valid visa application to be made.
Requests must meet the detailed Part 5, section 11 criteria of the new guideline.
3. Ministerial Intervention under Subsection 48B(1)
Applies to individuals who have had a Protection Visa (PV) refused or cancelled and are prevented from reapplying onshore.
The Minister may lift this bar if it's in the public interest, enabling the person to lodge a new PV application within 7 days.
Requests must meet the same Part 5, section 11 criteria as 46A(2) cases.
✅ Overview of the New Ministerial Intervention Guidelines (Effective 4 September 2025)
| Ministerial Power | Relevant Section | Applies To | Minister’s Authority | Key Changes in the New Guidelines |
|---|---|---|---|---|
| Section 351 | s351 of the Migration Act 1958 | Decisions by the Administrative Review Tribunal (ART) | Minister may substitute a more favourable decision if in the public interest |
|
| Section 501J | s501J of the Migration Act 1958 | ART decisions involving Protection Visa refusal/cancellation | Minister may substitute a more favourable decision if in the public interest |
|
| Subsection 46A(2) | s46A(2) of the Migration Act 1958 | Unauthorised Maritime Arrivals (UMAs) barred from applying for visas | Minister may lift the bar to allow a valid visa application if in the public interest |
|
| Subsection 48B(1) | s48B(1) of the Migration Act 1958 | Applicants previously refused or had a Protection Visa cancelled | Minister may allow a new PV application within 7 days if in the public interest |
|
How Pre-Existing and New Cases Are Being Handled
Pre-Davis Caseload (Before April 2023)
Affected MI requests will be closed using Personal Procedural Decisions (PPDs).
Applicants may submit a new request under the updated guidelines.
Post-Davis Caseload (After April 2023)
Requests will be assessed under the new objective framework.
Applications that do not meet the new criteria will be closed.
Valid requests will progress for Ministerial consideration.
Key Features of the New MI Guidelines
Across all three instructions, the following components are clearly outlined:
Clear definitions of public interest in Ministerial decisions
Who may make a request and how to do so
Detailed lists of appropriate vs inappropriate circumstances for referral
Guidelines for submission quality, including what to include in summary and full supporting submissions
Procedural pathways for how the Department should handle and assess requests
The guidelines are particularly detailed for s351 and s501J requests, outlining specific procedural steps and assessment expectations.
Professional Development for Migration Agents
Due to the complexity and scale of these changes, the Migration Institute of Australia (MIA) has announced a members' information session on 19 September 2025. Updated CPD (Continuing Professional Development) sessions will also be available soon to assist registered migration agents in adapting to the new framework.
Frequently Asked Questions (FAQs)
Q1: Can I reapply if my Ministerial Intervention request was closed under the new rules?
A: Yes. If your previous request was affected by the Davis case and closed, you can lodge a new MI request under the updated guidelines.
Q2: What is the main difference in the new Ministerial Instructions?
A: The key change is the use of objective criteria for referrals, reducing the role of subjective assessments.
Q3: Does this affect Protection Visa applicants?
A: Yes. If your PV was refused or cancelled, the new 48B(1) guideline outlines when the Minister may lift the reapplication bar.
Q4: Will all requests be personally reviewed by the Minister?
A: No. Due to the volume of cases, only requests that meet the new threshold conditions will be considered.
Q5: Where can I get help understanding the new process?
A: Migration agents can attend upcoming MIA sessions, and individuals should seek professional immigration legal advice.
Useful Links
Migration Act 1958 – Ministerial Powers
Davis v Minister for Immigration 2023 HCA 10
Migration Institute of Australia (MIA)
Department of Home Affairs – Ministerial Intervention
Need Help With a Ministerial Intervention Request?
Navigating a Ministerial Intervention application under these new rules can be complex. At One Planet Migration, we stay up to date with the latest immigration law changes and are ready to help you understand your options.
📞 Contact us today for a consultation to review your eligibility and plan your next steps.
