New Ministerial Intervention Rules from 4 September 2025
Background
On 4 September 2025, the Minister for Immigration and Citizenship, Hon. Tony Burke MP, signed new Ministerial Instructions that change how people can ask the Minister to personally look at their visa cases — a process called ministerial intervention.
These new Instructions apply to four special powers under the Migration Act 1958 (Cth):
-
Section 46A(1) empowers the Minister to allow an unauthorised maritime arrival to apply for a visa, even though they would otherwise be barred from doing so.
-
Section 48B(1) empowers the Minister to permit a person to apply for a protection visa.
-
Sections 351(1) and 501J(1) empower the Minister to substitute for a decision of a review tribunal.
The Minister can use these powers only if he personally believes it is in the public interest to do so. These powers cannot be delegated to anyone else.
Why the Changes Were Made
The new rules follow the High Court of Australia’s decision in Davis v Minister for Immigration [2023] HCA 10, delivered on 12 April 2023.
In that case, the High Court found that the Department’s old process was unlawful, because Department officers were using wide “guidelines” to decide which cases should go to the Minister — even though the law says only the Minister can decide on intervention.
To fix this, the Minister introduced new Ministerial Instructions that:
-
set clear and objective criteria for which cases can be referred to the Minister; and
-
ensure that the Minister — not Department staff — is the one exercising these powers.
The Instructions for s 351(1) were further amended on 17 September 2025 to make this process even clearer.
What Has Changed
Under the old guidelines, Departmental officers had wide discretion and could refer almost any case they thought was “compassionate or compelling”.
Under the new Instructions:
-
Only cases that clearly meet the stated criteria will be referred to the Minister.
-
Departmental discretion is now limited — staff cannot make judgment calls beyond those criteria.
-
The process is tighter and more transparent, designed to avoid legal challenges like Davis.
| Before (Old Guidelines) | Now (New Instructions) |
|---|---|
| Broad and flexible guidelines. | Clear and objective criteria. |
| Department officers had wide discretion. | Minister makes all final decisions personally. |
| Many requests could be accepted for referral. | Only specific cases that meet the criteria will be considered. |
What Happens to Existing and Future Requests
The Department of Home Affairs has confirmed the following:
-
Requests lodged before April 2023 (before Davis): All unfinalised requests will be closed.
-
Requests lodged between April 2023 and 4 September 2025: These will also be closed, unless they meet the new criteria (particularly for s 351 requests).
-
Requests lodged after 4 September 2025: Will be assessed under the new rules.
What It Means for You
If you have a pending ministerial intervention request, it may be closed unless it clearly fits the new rules.
You can still make a new request under the new process — but it must meet the strict eligibility criteria in the Ministerial Instructions.
Requests that do not meet the criteria will not be referred to the Minister.
Why This Matters
These changes are designed to make the process fair, consistent, and legally valid, while ensuring that only the most exceptional cases reach the Minister. However, it also means that fewer cases will be accepted for ministerial consideration compared to the past.
Need Help?
If you have a pending ministerial intervention request or are unsure whether you meet the new criteria, you should seek professional advice before re-lodging.
MCLP Lawyers can assist with:
-
reviewing closed or affected requests,
-
preparing new requests under the new Instructions, and
-
assessing whether your case meets the new “public interest” criteria.
This article is intended to provide general information only and does not constitute legal advice.