The New Ministerial Intervention Regime Post-Davis

Melissa Phan|12th November 2025

Background

On 12 April 2023, the High Court of Australia in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs; DCM20 v Secretary of the Department of Home Affairs [2023] HCA 10 held that the Minister’s Guidelines for dealing with intervention requests under s 351 of the Migration Act 1958 (Cth) (Act) was beyond the executive power of the Commonwealth. 

Under s 351, the Minister’s power (should he choose to exercise it) comprises two personal decisions: first, a procedural decision whether to consider or not to consider whether it is in the public interest to exercise the power; second, a substantive decision whether or not to in fact exercise the power.

Under the Guidelines (first promulgated in 2016), requests needed to demonstrate one or more “unique and exceptional circumstances” which approximated the public interest. Departmental officers were then instructed to exercise an evaluative judgment when determining whether a request should be referred to the Minister for consideration.

The High Court held that this was tantamount to officers (not the Minister personally) deciding whether cases were in the public interest and in doing so, making a procedural decision which was personal to the Minister which was not permitted by s 351.

The decision in Davis threw the Ministerial Intervention process into tumult. There was a significant number of cases already “in the system” awaiting Ministerial Intervention without a valid, lawful process to deal with them. Some cases have been waiting for more than 5 years.

Many practitioners expected that the Minister would re-issue new Guidelines shortly after Davis, but this did not eventuate until 4 September 2025.

Personal Procedural Decisions

On 4 September 2025 the Minister for Immigration and Citizenship, Tony Burke, issued two Personal Procedural Decisions (PPD), namely, a “positive” PPD and a “negative” PPD to manage existing intervention requests:

  • under a positive PPD, the Minister personally determined that he would consider certain categories of requests.
  • under a negative PPD, the Minister personally determined that he would not consider certain categories of requests.

New Ministerial Instructions

Also on 4 September 2025, the Minister issued new Ministerial Instructions for the exercise of intervention powers under ss 351 and 501J of the Act. An amended version commenced on 17 September 2025 (New Instructions).

The New Instructions introduced objective referral criteria and limited the role of Departmental officers to assessing whether a request was properly made and whether it satisfied those criteria (rather than put them to the task of making evaluative judgments of the public interest).

In summary, the New Instructions specify:

  • the circumstances in which a request is inappropriate to refer (in which case it must be finalised without referral to the Minister);
  • the criteria for referring a request to the Minister; and
  • that if a request is not inappropriate to refer, but does not satisfy any referral criteria, it must also be finalised without referral.

Examples of referral criteria include:

  • the person is a parent of an Australian citizen or permanent resident minor at the time of the request was made;
  • the person has skills on a relevant skilled occupation list;
  • the person previously held a Subclass 188 visa and would satisfy criteria for a Subclass 888 visa;
  • the person is the carer of an Australian citizen with a Carer Visa Assessment Certificate showing a certain minimum impairment rating;
  • the person is an immediate family member of a child who engages Australia’s non-refoulment obligations;
  • the person cannot return or be returned to any of the country of citizenship or usual residence on a voluntary basis, due to the refusal of the authorities of the country to cooperate to allow the person’s return.

Commentary

It is important to carefully check the referral criteria in s 13 of the New Instructions as well as non-referral criteria before embarking on a Ministerial intervention request.

Given that the criteria are now “objective”, we would expect Departmental officers to finalise cases that do not meet the referral criteria relatively quickly, although how quickly remains to be seen.

Applicants who made intervention requests prior to 23 April 2023 and who were affected by a negative PPD will not be disadvantaged and may make a new request. Applicants in this cohort will still need to carefully examine the referral criteria, which are in many cases narrower than the broad subjective concept of “unique and exceptional circumstances”.

Even when a referral criterion is met, the Minister retains a broad personal discretion and is not compelled to exercise his or her power to substitute a decision that is more favourable to an individual. The Minister may choose not to exercise the power at all. Clients’ expectations should be appropriately managed.

If you or your client needs assistance with a Ministerial intervention request, please contact Melissa Phan or Lester Ong.