Updates on Ministerial Intervention under the Migration Act 1958
The Department of Home Affairs has released significant updates to the way Ministerial Intervention (MI) powers are exercised under the Migration Act 1958. On 4 September 2025, the Hon Tony Burke MP, Minister for Home Affairs, Immigration and Citizenship, and Cyber Security, issued new Ministerial Instructions affecting sections 46A, 48B, 351, and 501J
Sections 46A and 48B
The new Instructions replace earlier guidelines (2016 for s48B and 2017 for s46A). MI requests are now assessed against objective and clearly defined criteria. Requests will only be referred to the Minister if:
- The intervention powers are enlivened; and
- The request is properly made; and
- The request is not inappropriate to refer.
On the same day, the Minister made Personal Procedural Decisions (PPDs), ruling out consideration of all MI requests lodged before 04 September 2025, except for a limited number of excluded cases. Individuals affected will be notified directly or through public notice. New requests, including from those whose earlier requests were finalised, can still be submitted and will be assessed under the new rules.
Sections 351 and 501J
On 17 September 2025, the Minister issued an amended version of the Instructions, replacing both the 2016 Minister’s Guidelines on ministerial powers (s351, s417, s501J) and the 04 September 2025 version. Key changes include:
- Removal of the requirement to assess “unique and exceptional circumstances.”
- Departmental officers are no longer permitted to initiate MI requests.
- Requests must meet strict referral criteria, including one of the section 13 criteria.
The Instructions do not affect the operation of section 197E(1) regarding unlawful non-citizens.
The Minister also made PPDs on 04 September 2025:
- MI requests lodged on or before 11 April 2023 will not be considered, unless already subject to a decision or listed in the PPD annexure.
- MI requests made on or after 12 April 2023 may be considered if they meet at least one of the specified criteria.
Affected individuals will be notified, and those with closed cases may make a new MI request, which will be assessed under the new Instructions.
The reforms shift Ministerial Intervention away from broad discretion and towards structured, transparent, and criteria-based decision-making. While many older requests have been finalized, individuals may still lodge new applications that align with the updated requirements.
Sources:
For further information, including copies of the new MI Instructions and PPDs: https://immi.homeaffairs.gov.au/what-we-do/refugee-and-humanitarian-program/onshore-protection/protection-visa-cancelled
For more details on Ministerial Intervention processes: https://immi.homeaffairs.gov.au/what-we-do/status-resolution-service/ministerial-intervention
