Understanding Ministerial Intervention in 2025

Ministerial Intervention under the Migration Act 1958 (Cth) (Migration Act) remains a critical avenue for individuals seeking relief from adverse visa decisions. These powers, exercised personally by the Minister for Immigration, are non-compellable and discretionary, making them a last resort for many applicants. In 2025, trends indicate that Ministerial Intervention is increasingly successful for protection and partner visas, reflecting the importance of compassionate and public interest arguments in submissions.

Key Trends in Ministerial Intervention

  1. Protection and Partner Visas: Ministerial Intervention requests for protection and partner visas often succeed when they involve strong compassionate circumstances or unintended consequences of legislation. For example, cases involving family violence, health issues, or significant contributions to the Australian community are more likely to be considered favourably.
  2. Bar Lifts for Visa Applications: Sections 46A and 48B of the Migration Act allow the Minister to lift statutory bars preventing further visa applications. These provisions are particularly relevant for applicants who have received adverse decisions but have new information or changed circumstances that warrant reconsideration.
  3. Judicial Review Options: The High Court of Australia’s (High Court) decision in Davis v MICMSMA; Davis v Secretary of Department of Home Affairs [2023] HCA 10 (Davis) has emphasised the importance of procedural fairness in Ministerial Intervention requests. Applicants now have stronger grounds to challenge non-referral decisions made by departmental officers.

The Impact of Davis

The landmark case of Davis has significantly influenced the administration of Ministerial Intervention powers. The High Court ruled that decisions regarding whether an applicant’s circumstances are “unique or exceptional” must be made personally by the Minister, not departmental officers. This decision has several implications:

  1. Reinforcement of Personal Powers: The ruling emphasises that the Minister’s powers under provisions such as ss 351 and 417 of the Migration Act are personal and cannot be delegated to departmental officers. This ensures that applicants’ submissions are evaluated directly by the Minister, enhancing accountability.
  2. Judicial Review of Non-Referral Decisions: The case opens the door for judicial review if a departmental officer improperly screens out a request without referring it to the Minister. This provides applicants with a legal avenue to challenge procedural errors.
  3. Higher Threshold for Unreasonableness: Justice Edelman’s obiter comments in the case suggest that while unreasonableness can apply to non-statutory executive actions, the threshold for establishing it is high. This confirms the need for robust and compelling submissions when applying for ministerial intervention.

Practical Considerations for Applicants

For clients seeking Ministerial Intervention, it is crucial to manage expectations and prepare comprehensive submissions. Here are some practical tips:

  • Address the Guidelines: Submissions should directly address the Minister’s guidelines, highlighting compassionate circumstances, unintended consequences of legislation, or significant contributions to Australia.
  • Provide Supporting Evidence: Include detailed statements, medical reports, and country information to substantiate claims. Ensure that all documentation is accurate and up-to-date.
  • Consider Judicial Review: If a request is screened out by departmental officers, explore the possibility of judicial review under section 39B of the Judiciary Act 1903 (Cth).
  • Manage Deadlines: Diarise key dates, such as the expiry of existing visas or the 7-day period for lodging further applications after a bar lift.

Take Aways

Ministerial Intervention remains a vital mechanism for addressing complex migration cases. The trends in 2025 and the impact of Davis highlight the importance of robust submissions and procedural fairness.

How We Can Help

At Snedden Hall & Gallop, we are committed to providing expert guidance and support to clients navigating this challenging process. If you require assistance with a Ministerial Intervention request, our migration team is here to help.