Key changes to Ministerial Intervention requests
- New legal framework and why it was introduced
- On 4 September 2025, three new Ministerial Instructions came into effect, changing how requests for MI are handled under various parts of the Migration Act.
- They were prompted by the High Court’s Davis v Minister for Immigration … decision (2023) which found that the previous criteria for when matters were referred to the Minister (especially subjective ones) were invalid. That left many requests in limbo.
- What the instructions cover
The new guidelines address these mechanisms under the Act:- MI powers under sections 351 and 501J (which allow the Minister to substitute favorable decisions, especially in public interest, including in cases involving protection visa refusals/cancellations).
- MI under subsection 46A(2) (relating to Unauthorised Maritime Arrivals being allowed to apply for visas onshore)
- MI under subsection 48B(1) (lifting the section 48A bar so someone gets seven days to apply for another protection visa while in Australia)
- What has changed in how requests are processed
- There are now clear, objective threshold criteria, which means more specific, measurable requirements, rather than broad subjective judgments.
- The guidelines define what circumstances are appropriate or inappropriate for referral.
- There is clarification on who can make a request, how to lodge it, what kind of submissions are required (full vs summary), and when the Minister’s powers are formally triggered.
- Transparency is increased: the criteria and process are more open; this aims to reduce speculative or unmeritorious requests.
- What happens to existing (pending) requests vs new ones
- Existing requests (pre-“Davis” or those implicating the Davis decision, or under sections 351 & 501J) will mostly be closed under Personal Procedural Decisions (PPDs), except those specifically exempted. People whose cases are closed will have the option to re-submit under the new rules.
- New requests (post-Davis) will need to satisfy the new objective criteria to proceed. If they don’t, they will be closed at an earlier stage.
- Impact and practical implications
- The overall number of outstanding MI requests is large (~30,000) so this reset is significant in scope.
- Because the Minister’s willingness to personally intervene is now constrained by more defined criteria, many cases that might have stood a chance under the old more open framework may no longer qualify.
NEED MORE INFORMATION?
CMT will be running a special CPD to cover the new requirements – Registration is now open – visit the link below