Visa Appeals
Ministerial Intervention
A non-compellable, discretionary power exercised by the Minister personally. Generally available only after merits review is exhausted. Following the September 2025 reforms after Davis, requests are assessed against objective criteria — not the old subjective "unique and exceptional circumstances" test.
The September 2025 reforms
The framework changed materially in September 2025. Following the High Court's decision in Davis v Minister for Immigration [2023] HCA 10 — which held that the previous subjective assessment by Departmental officers was unlawful — the Minister issued new Ministerial Instructions on 4 September 2025, amended 17 September 2025. The 2016 Guidelines were replaced.
Under the new framework, Departmental officers no longer assess "unique and exceptional circumstances" and no longer initiate intervention requests. Requests are now assessed against clearly defined objective criteria. The threshold for referral to the Minister is meaningfully higher and more specific than under the old framework.
Intervention provisions
The Minister's intervention powers attach to specific Tribunal decisions and visa classes. Each provision has its own procedural requirements and threshold criteria under the September 2025 Instructions.
Section 351
Power to substitute a more favourable decision after a Tribunal decision in the migration jurisdiction (now the ART Migration and Refugee Jurisdictional Area). The most commonly invoked provision.
Section 501J
Power to substitute a more favourable decision after a Tribunal decision under Section 501 (character matters). Procedurally distinct from Section 351 given the character context.
Section 46A(2)
Power to allow an Unauthorised Maritime Arrival to make a valid visa application onshore. Distinct criteria under the protection visa Instructions.
Section 48B(1)
Power to lift the Section 48A bar to permit a further protection visa application. Engaged after a previous protection visa application has been finally determined.
The referral test under the new framework
Under the September 2025 Instructions, a Section 351 or 501J intervention request will be referred to the Minister only where each of the four elements below is satisfied. Where any one element is not satisfied, the Department finalises the request without referring it. There is no review of the decision not to refer.
1. Power enlivened
There must be a Tribunal decision the Minister has the legal power to substitute. Intervention before the relevant Tribunal decision is not available.
2. Properly made request
The request must be in writing, with the required information and supporting material. Procedural defects can be fatal at this stage.
3. Not inappropriate to refer
The Instructions specify excluded categories: prior personal consideration by a Minister within two years, departure from Australia, current visa applications, or current ART proceedings.
4. Listed criteria met
The request must engage at least one of the specific objective criteria in the Instructions. Generic humanitarian appeals without engaging a listed criterion will not be referred.
Build the request to the new framework
Under the September 2025 Instructions, a misconceived request is finalised without referral. Visa Plan Lawyers will only file requests that engage a listed criterion and is supported by the prescribed evidence.
Ministerial intervention information is sourced from the Migration Act 1958 (sections 351, 351J, 46A, 48B, 501J), the Minister's Ministerial Instructions issued 4 September 2025 (amended 17 September 2025), and the High Court decision in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10, current as at April 2026. The framework is subject to change. This page provides general information only and does not constitute legal advice.