New Ministerial Intervention Guidelines Introduced – What You Need to Know (September 2025 Update)
On 4 September 2025 the Minister for Immigration signed three new Ministerial Instructions (MIs) that reshape how Ministerial Intervention requests are handled under the Migration Act 1958. These instructions establish a more objective, structured referral process for section 351/501J matters and for requests under subsections 46A(2) and 48B(1). The reform follows the High Court’s decision in Davis v Minister for Immigration and is intended to reduce legal uncertainty and improve procedural clarity.
Why these changes matter
The High Court’s decision in Davis v Minister for Immigration (2023) curtailed the Department’s previous use of subjective referral criteria. That decision left a large backlog of unresolved Ministerial Intervention requests. The new instructions introduce clearer, objective thresholds and standard submission requirements so that departmental officers and applicants understand the circumstances in which a request may be referred to the Minister for consideration.
Practical point: the government estimates that tens of thousands of legacy requests were impacted by the Davis decision; the new framework aims to provide a consistent pathway to resolve or re-assess those matters under objective tests.
What the new instructions cover
The package signed on 4 September 2025 includes three separate Ministerial Instructions that operate in similar, but distinct, areas:
- Requests to exercise the Minister’s intervention power under section 351 (substitution of Administrative Review Tribunal decisions) and section 501J.
- Requests under subsection 46A(2) — applications to lift the bar that prevents Unauthorised Maritime Arrivals (UMAs) from lodging visas onshore.
- Requests under subsection 48B(1) — applications to allow protection visa re-applications where an onshore bar would otherwise apply.
Detailed breakdown — the three new instructions
1. Ministerial intervention under sections 351 and 501J
This instruction relates to ART decisions and sets out when the Minister may substitute a more favourable outcome in the public interest. Key points:
- The Minister may substitute a favourable decision where objective criteria and public interest factors are satisfied.
- Requests can be made by the affected person or initiated by the tribunal in some circumstances.
- Unlawful non-citizens falling within subsection 197E(1) are excluded from consideration under this instruction.
- The instruction includes transitional provisions to manage pre-existing requests lodged before the Davis decision.
2. Ministerial intervention under subsection 46A(2) (UMAs)
This instruction concerns Unauthorised Maritime Arrivals who are otherwise barred from making visa applications while in Australia. Important elements:
- The Minister may lift the onshore bar if doing so is in the public interest and the request meets the prescribed objective criteria.
- Submissions must address the specific requirements set out in Part 5, section 11 of the instruction.
- Officers will apply a higher quality threshold to discourage repetitive or clearly unmeritorious requests.
3. Ministerial intervention under subsection 48B(1) (Protection re-applications)
This instruction applies to applicants who have been refused or had a Protection visa cancelled and who are barred from reapplying onshore. Key features:
- The Minister can permit a re-application within a short prescribed window (typically 7 days) if the public interest test and Part 5/section 11 criteria are met.
- The same objective criteria used for 46A(2) requests are applied here to ensure consistent decision-making.
- Transitional handling is specified to distinguish older matters from new requests lodged after the instruction’s commencement.
Quick reference table — what each instruction does
| Ministerial power / subsection | Scope | Main effect | Notable changes |
|---|---|---|---|
| Section 351 | ART decisions | Minister may substitute a more favourable decision in the public interest | Objective referral criteria; transitional provisions; clearer submission structure |
| Section 501J | ART decisions involving character/protection issues | Minister may substitute a favourable decision where public interest requires | Mirrors s351 with protection-specific provisions (health/character considerations) |
| Subsection 46A(2) | Unauthorised Maritime Arrivals (bar on onshore applications) | Minister may lift onshore bar if public interest satisfied | Strict Part 5 / Section 11 criteria; emphasis on submission quality |
| Subsection 48B(1) | Protection visa re-applications where a bar applies | Minister may allow a new PV application within prescribed timeframe if in the public interest | Same objective test as 46A(2); clearer definitions of eligible circumstances |
How pre-existing and new requests will be handled
Pre-Davis caseload (before April 2023): Many older MI requests closed as Personal Procedural Decisions (PPDs) in the wake of the Davis judgment. Applicants whose matters were closed may be able to lodge a fresh request under the new instructions.
Post-Davis caseload (after April 2023): New requests will be assessed under the objective tests in the instructions. Requests that fail to meet the threshold will be closed; meritorious requests will proceed for Ministerial consideration.
Key features common to all three instructions
- Clear public interest criteria that must be satisfied for the Minister to consider substitution or lifting a bar.
- Rules about who may lodge a request and the form and content of summary and full submissions.
- Lists of appropriate and inappropriate circumstances for referral — designed to deter unmeritorious or repetitive applications.
- Procedural instructions for departmental officers on assessment, referral and recordkeeping.
- Transitional provisions and special handling rules for legacy matters impacted by the Davis decision.
Professional development for migration advisers
The scale and technical detail of the new instructions mean advising practitioners will need to update their procedures. The Migration Institute of Australia (MIA) has scheduled information sessions (including a members’ briefing on 19 September 2025) and updated CPD resources will be made available to assist registered migration agents.
Advisers should consider undertaking targeted CPD and internal training focused on: drafting high-quality Part 5 / Section 11 submissions; articulating public interest arguments; and documenting objective evidence to meet the new thresholds.
Frequently asked questions (FAQs)
- Q1: Can I reapply if my prior MI request was closed after Davis?
- A: Yes — applicants whose matters were closed may lodge a fresh request under the updated instructions, provided the new submission meets the objective criteria.
- Q2: What is the central difference in the new instructions?
- A: The primary change is the move from subjective referral tests to clearly defined, objective criteria and formal submission requirements that aim to reduce legal challenge risk.
- Q3: Do the changes affect protection visa applicants?
- A: Yes — the new 48B(1) instruction specifically governs when the Minister may allow protection visa re-applications onshore and sets an objective public interest test for such requests.
- Q4: Will the Minister personally review every request?
- A: No — because of volume, only requests that meet the new threshold conditions and demonstrate weighty public interest grounds will be progressed for Ministerial consideration.
- Q5: Where can I get help with the new process?
- A: Registered migration agents should review MIA CPD materials and the full instrument text. Individuals should seek professional legal or migration advice — high-quality, structured submissions are now essential.
- Need help? If you are considering a Ministerial Intervention request, or your previous MI was affected by the Davis decision, our team at Skyline Migration Lawyers can review your case and prepare a focused submission that meets the new requirements.
