Ministerial intervention under section 351 after a failed ART appeal

Ministerial intervention after a failed ART appeal is a request that the Minister personally substitute a decision more favourable to you than the Tribunal’s, if the Minister considers that to be in the public interest. It is a discretionary power, and the Minister cannot be compelled to consider a request. Since 14 October 2024 the relevant power is section 351 of the Migration Act 1958. Since September 2025 the Department has decided which requests reach the Minister by applying published Ministerial Instructions, which replaced the former “unique or exceptional circumstances” test.

Many people treat a ministerial request as an assured fourth chance. It is a narrow remedy. A request that fits one of the listed criteria and is lodged while you are still lawful can succeed. A request lodged as a reflex, after your bridging visa has ended, is finalised without ever being read by the Minister.

Section 351 after the repeal of section 417

Section 351 lets the Minister substitute a decision that is more favourable to you than a decision of the Administrative Review Tribunal (and earlier tribunal decisions, as the Department’s page describes). Section 417, which did the same job for protection visa decisions of the former Refugee Review Tribunal and the AAT, was repealed with effect from 14 October 2024, the day the ART commenced. Protection decisions of the ART are now reviewed in its Protection jurisdictional area, and section 351 covers them. The Department of Home Affairs confirms on its ministerial intervention page that although section 417 has been repealed, the Minister can still exercise the section 351 power for a person whose section 417 power was enlivened by an earlier tribunal decision. The Migration Regulations now refer to “repealed section 417” for the same reason.

Two features define the power, and both work against the applicant.

First, it is non-compellable. Section 351(7) provides that the Minister does not have a duty to consider whether to exercise the power, whether or not asked to do so. The Minister can decline to look at your request, and a court cannot order otherwise. The text is in the Migration Act 1958.

Second, it is personal to the Minister and cannot be delegated. A departmental officer cannot exercise it. What officers do instead is apply the Minister’s Instructions, which determine whether a request is ever put in front of the Minister at all. Most requests are finalised at that stage.

The upside, when the power is exercised, is significant. The Minister can grant a visa you would not otherwise qualify for, and the Instructions state that the Minister will grant whatever visa the Minister considers most appropriate (paragraph 9.2).

The power is only enlivened by a Tribunal decision

A ministerial request is available only once the Tribunal has made a decision on your case. Section 4 of the Instructions puts it directly: the intervention powers are enlivened when a review decision is made (paragraph 4.1), and they cease to be enlivened if a Minister has already intervened by granting a visa, a court has quashed the review decision, or the Tribunal remitted the matter and a departmental officer has since made a fresh decision (paragraph 4.2). Skipping merits review to go straight to the Minister does not work, because there is no decision for the Minister to displace.

This is where timing becomes unforgiving. The deadline to apply to the ART is fixed by the Migration Act and the regulations, and it is jurisdictional. If you miss it, the Tribunal has no power to review your case, however sympathetic the facts. The Federal Court confirmed the strict nature of a statutory time limit of this kind in Khabra v Minister for Immigration and Border Protection [2015] FCA 1405. A late review application is not cured by later asking the Minister to intervene. A missed deadline usually means the section 351 power is never enlivened, because there is no Tribunal decision to substitute.

Ministerial intervention is no fallback for a missed appeal deadline. Lodge the ART application in time, run it properly, and keep the ministerial request as a considered last option. Our visa appeals page sets out the review deadlines.

The September 2025 Ministerial Instructions

On 4 September 2025 the Minister for Immigration and Citizenship issued new Ministerial Instructions for requests under sections 351 and 501J, and issued an amended version on 17 September 2025. They replace the Minister’s Guidelines of 11 March 2016, which had asked officers to look for unique or exceptional circumstances. The Department’s assessment page states that the Instructions do not allow it to assess “unique or exceptional circumstances” or to initiate requests on a person’s behalf. The Instructions themselves are published as a PDF on the Department’s ministerial intervention page, and the section numbers below are taken from that document.

Section 8 of the Instructions sets out a four-step assessment, applied in order:

1. Are the intervention powers enlivened? The Department checks that a review decision exists and the power has not ceased to be enlivened under section 4 (paragraphs 8.2 and 8.3).
2. Is the request properly made? The request must comply with Part 2 (paragraphs 8.4 and 8.5). Under section 6 a direct request must be in writing and must specify which intervention power is relied on, the review decision, and the section 13 criteria relied on, accompanied by the information relevant to those criteria, with English translations of anything not in English.
3. Is the request inappropriate to refer? If any of the section 12 circumstances applies, the request is finalised without referral (paragraphs 8.6 and 8.7).
4. Does the request meet one of the section 13 criteria? If it meets none, it is finalised without referral; if it meets at least one, it is referred to a Minister on a submission (paragraphs 8.8 to 8.10).

Even a referred request can fail. Paragraph 9.1 records that the Minister may decline to consider a referred request, and may consider it and still decline to intervene.

Section 12: requests that are inappropriate to refer

Section 12 lists thirteen circumstances, any one of which ends the request. The ones that most often catch people after an ART loss are:

• an earlier request for the same person is still open (12.1.1);
• the request is a repeat request as defined in section 11 (12.1.2), meaning a Minister personally declined an earlier request and the Department notified that decision less than two years before the new request;
• the person is an unlawful non-citizen, not in immigration detention, who can make a valid bridging visa application but had not done so when the request was lodged (12.1.3);
• the person could apply for a Partner visa in Australia but is subject to condition 8503 and has not sought a waiver in the three months before the request (12.1.4);
• the person has departed Australia (12.1.5), has an ongoing substantive visa application (12.1.6), has an ongoing merits review application (12.1.7), or has had a decision remitted or set aside and the matter is still under consideration (12.1.8);
• the request is made after a notice of intention to remove has issued (12.1.9);
• the request raises claims only in relation to Australia’s non-refoulement obligations (12.1.13).

The Department’s own summary is the same: it will finalise a request without referral if it has one or more of the circumstances in section 12.

Section 13: the criteria that get a request referred

Section 13 sets ten criteria. A request is referred to a Minister only if it meets at least one:

• the person has provided evidence that they are the parent of an Australian citizen or permanent resident child who was a minor when the request was made (13.1.1);
• the person has the skills for an occupation on the MLTSSL, STSOL, ROL or CSOL, is presently working in it, and has provided the section 14 evidence: a skills assessment or an appropriate qualification, evidence of current work in the occupation, and employer support if employed (13.1.2 and section 14);
• the person previously held a Subclass 188 visa and would now satisfy the time-in-Australia criteria for a Subclass 888 visa (13.1.3);
• the person is the carer of an Australian citizen with a Carer Visa Assessment Certificate showing a minimum impairment rating of 30, with evidence that no Australian family member can provide the care and care services are otherwise unavailable (13.1.4);
• the person is excluded from a protection visa on character grounds but has a protection finding within the meaning of section 197C (13.1.5);
• the person is a member of the immediate family of a child found to engage non-refoulement obligations who holds or has held a protection or humanitarian visa (13.1.6);
• the person is under 18 and in the care of a State or Territory welfare authority (13.1.7);
• the person would meet subclause 102.211(2) of Schedule 2 (adoption) but for subparagraph (b)(ii) and was refused for that reason (13.1.8);
• the person first entered Australia as a minor, has lived here for at least half their life, has a Commonwealth medical officer’s assessment that return would harm their mental or physical health, and has no family in any country they could return to (13.1.9);
• the person cannot return to any country of citizenship or usual residence because that country’s authorities refuse to cooperate (13.1.10).

The criteria are evidentiary. A request that asserts a category without the prescribed evidence does not meet it. Compassionate circumstances that fall outside the ten criteria, however genuine, do not get a request referred under the current Instructions. This is the largest change from the 2016 Guidelines, and a request drafted to the old framework is now finalised at step four.

Requests lodged before September 2025

On 4 September 2025 the Minister also made Personal Procedural Decisions covering the backlog. A request lodged before 12 April 2023 that the Minister was not already personally considering, and that is not listed in the annexure to the decision, has been finalised by the Department. A request lodged from 12 April 2023 to the day before the decisions were signed has likewise been finalised unless it is in a class the Minister wishes to have referred or is listed in the annexure. The Department notifies each person of the outcome, and anyone whose request was finalised in this way can lodge a new request, which is assessed against the current Instructions. Under paragraph 11.3 of the Instructions such a new request is not a repeat request.

Bridging visas: apply before or with the request

A ministerial request does not, by itself, give you a bridging visa or a right to remain. Nothing about your status changes automatically when you lodge. The Instructions state the Minister’s expectation that a person in the community will be a lawful non-citizen when the request is made and will remain lawful until it is finalised (paragraph 5.4).

What is often missed is that the Regulations do provide a bridging visa pathway for a first request. Schedule 2 clause 050.212(6) of the Migration Regulations 1994 allows a Bridging visa E (subclass 050) to be granted to a person who is the subject of a decision on an onshore visa application or a cancellation, for which the Minister has the section 351 power, who has made a request to the Minister to substitute a more favourable decision under section 351 or repealed section 417, and who has not previously sought (or been the subject of another person’s request for) the exercise of that power or a section 48B determination. The pathway is for a first request only. A repeat request does not support a Bridging visa E under that clause.

The sequence matters. The Department will assess a request as inappropriate to refer if the person is an unlawful non-citizen not in immigration detention who could make a valid bridging visa application but had not done so when the ministerial request was lodged (Instruction 12.1.3, and the Department’s after you request page). The request is then finalised without referral. The correct order is therefore to identify and apply for the bridging visa you are eligible for before, or together with, the ministerial request, so that you are lawful at the time of lodgement and stay lawful while it is assessed. A Bridging visa E granted with condition 8512, which sets a date by which you must leave Australia, is itself a section 12 circumstance (12.1.10), so the conditions on any bridging visa need checking as well.

Finally, a request does not stop removal. The Department states that a request is not a visa application and has no effect on the removal powers under section 198 of the Migration Act unless the Minister has made a procedural decision to consider your case. An unlawful non-citizen with a pending request remains liable to detention and removal.

What the power cannot fix

The power cannot be used to attack the Tribunal’s reasoning as if it were a court. If your real complaint is that the Tribunal denied you a fair hearing, for example by deciding the case on an issue you were never given a chance to address, that is a matter for judicial review in the Federal Circuit and Family Court of Australia, not the Minister. The High Court made clear in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 that where a decision turns on specific issues, the applicant must have a genuine opportunity to address them. A procedural fairness failure of that kind is a legal error a court can set right. Ministerial intervention is the wrong tool for it, and the strict judicial review deadline keeps running while you pursue the Minister.

There is a broader point about how discretionary these outcomes are. Courts have consistently recognised that wide statutory discretions in migration are not disturbed merely because a different decision-maker might have chosen otherwise, a principle the Full Court of the Federal Court reflected in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11. The Minister’s personal, non-compellable power sits at the far end of that spectrum. Do not build your immigration plan around it succeeding.

How to give a request its best chance

Under the current Instructions a request is built around a section 13 criterion rather than a narrative of hardship. Identify which criterion applies, gather the evidence the Instructions prescribe for it, and state the criterion and the review decision expressly in the request, because paragraph 6.3 requires it. Provide certified copies and NAATI translations. The Department assesses on what is lodged at first instance and only seeks further material from a request that already meets a criterion.

Just as importantly, get your status and deadlines mapped before you rely on a request. Confirm whether any judicial review right is still open and within time, confirm exactly when your current bridging visa ends, and lodge the bridging visa application you are eligible for before or with the request. Check the section 12 list against your own circumstances: an open partner visa pathway, a pending visa application, or a recent personal refusal by a Minister will each end the request before the criteria are considered.

A request is referred rather than finalised in the Department when it meets a listed criterion with the prescribed evidence and is lodged while you are lawful.

If your ART appeal has been refused, speak to us before your remaining options expire. Our team can assess whether a section 351 request, judicial review, or a fresh application such as a partner visa is the right course, and act on it within the deadlines that apply. Start with our ministerial intervention service page, or contact Visa Plan Lawyers to arrange advice on your specific situation.

General information only, current at the date shown. It is not legal advice on your situation. To get advice on your matter, book a consultation.