Ministerial Intervention Lawyers

Section 351 applies to general review decisions made by the Administrative Review Tribunal in relation to visa refusals and cancellations. Section 501J applies specifically to review decisions involving character-based visa refusals and cancellations, and to certain protection visa decisions. You need to identify which power applies to your situation before making a request, as they have different requirements and processes.

The Administrative Appeals Tribunal (AAT) was replaced by the Administrative Review Tribunal (ART) on 14 October 2024. This is known as the transition time. Ministerial intervention powers continue to apply to review decisions made by the ART. They also continue to apply to applicable AAT decisions made before the transition date under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024.

No. The power is described in the Ministerial Instructions as personal and non-compellable. This means the Minister is not legally obliged to consider or exercise the power. Even if your request meets all formal requirements and satisfies a section 13 criterion, the Minister may still decline to consider it or decline to intervene. This is why a well-prepared submission that presents your circumstances compellingly is so important.

The section 13 criteria are the categories of circumstances set out in the Ministerial Instructions under which the Department will refer a request to the Minister for personal consideration. If your request does not meet at least one of these criteria, it will be finalised by the Department without ever being seen by the Minister. The criteria include circumstances such as being the parent of a minor Australian citizen or permanent resident, being a skilled worker currently employed in your occupation, and several other specific situations.

Section 12 of the Ministerial Instructions sets out circumstances where a request is inappropriate to refer. These include: having an existing open request, making a repeat request within two years of a personal ministerial decision, being outside Australia, having an ongoing merits review application, having a pending notice of removal, holding a Bridging Visa E with condition 8512, and several other situations. Any one of these circumstances will result in your request being finalised without referral, even if you satisfy a section 13 criterion.

No. If you have an ongoing application for merits review with the ART, your ministerial intervention request will be treated as inappropriate to refer under section 12.1.7 of the Ministerial Instructions. You must wait until your ART review is finalised before the ministerial intervention pathway becomes available to you.

A repeat request is one where an earlier request in relation to the same individual was dealt with personally by a Minister, the Minister either declined to consider it or declined to exercise the intervention powers, the Department notified the individual of that decision, and that notification was made less than two years before the current request was received. A repeat request in these circumstances will be treated as inappropriate to refer under the Ministerial Instructions.

We strongly recommend it. Ministerial intervention is one of the most complex and high-stakes aspects of Australian immigration law. Errors in how a request is made can result in it being finalised without referral, and a poorly prepared submission that reaches the Minister is unlikely to succeed. The process involves careful legal analysis of your tribunal decision, precise identification of the applicable criteria, strategic preparation of supporting evidence, and clear professional drafting. These are tasks that benefit enormously from qualified legal assistance.

The Ministerial Instructions state that it is the Minister's general expectation that individuals who have not been granted a visa through the statutory process will leave Australia. The Instructions also state that if an individual has an onshore visa pathway available to them, it is generally not appropriate for the Minister to consider an intervention request. The overall framework makes clear that ministerial intervention is intended to be a genuinely exceptional measure, not a routine alternative to normal visa pathways.

It depends on how the earlier request was dealt with. If it was finalised by the Department without being referred to a Minister, you may be able to make a new request. However, if a Minister personally dealt with the earlier request and either declined to consider it or declined to exercise the powers, and notification of that decision was given less than two years before your new request, the new request will be treated as a repeat request and will not be referred. There are narrow exceptions if the Minister previously declined on a class-basis and indicated that individuals could make new requests.

No. Being outside Australia having departed is one of the circumstances listed under section 12 of the Ministerial Instructions that makes a request inappropriate to refer. Your request will be finalised by the Department without referral to the Minister if you are not in Australia at the time the request is made.

Yes. The Ministerial Instructions note that a requester may provide new or updated information in relation to a request that has not been finalised. However, submitting new information does not create a new request, and a new request will not be referred until the existing request is withdrawn or finalised. If you have significant new information that has emerged, you should provide it as supplementary material to your existing request rather than attempting to lodge a separate request.

The Ministerial Instructions do not specify processing timeframes, and the Department does not publish average processing times for ministerial intervention requests. The timeline depends on the volume of requests being processed, whether the Department seeks further information, whether additional assessments are required, and the Minister's own availability and workload. Requests can take many months and even years from submission to a final outcome. You should not make a request expecting a rapid decision.

Under the Ministerial Instructions, what is and what is not in the public interest is entirely for the Minister to determine. It is not defined in the Act or the Instructions and is purely a matter for ministerial judgment. This is one of the reasons the section 13 criteria are so important: they represent the Minister's own statement of the categories of cases that are likely to involve a sufficient public interest dimension to warrant personal consideration.

To satisfy section 13.1.2, you must demonstrate that your occupation is listed on a relevant skilled occupation list (MLTSSL, STSOL, ROL or CSOL), that you currently have the skills required for that occupation, and that you are presently working in it. The evidence required under section 14 of the Instructions includes either a past or current positive skills assessment or evidence of an appropriate qualification, evidence that you are currently working in the occupation, and if you are an employee, evidence of support from your employer.

A direct request must be made in writing. The Department provides an online method and a postal address on its website. The request must specify which of the Minister's intervention powers you rely on, identify the relevant review decision, nominate the section 13 criteria you are relying on, and be accompanied by the information relevant to assessing whether you satisfy those criteria. Any supporting documents not in English must include translations accredited by the National Accreditation Authority for Translators and Interpreters (NAATI).

A tribunal request occurs where the relevant review tribunal includes a request for ministerial intervention in its decision record. When this happens, the Department contacts the individual or their representative to confirm whether they wish to proceed with the request. If they do, it is then treated as a direct request and processed accordingly under Parts 3 to 5 of the Ministerial Instructions. Tribunal requests arise less commonly than direct requests made after the tribunal decision.

The Department will first assess whether the intervention powers are enlivened, whether your request complies with Part 2 of the Instructions, and whether it is inappropriate to refer under section 12. If it passes those hurdles, the Department then assesses whether it meets at least one section 13 criterion. If it does, the request is referred to the Minister on a submission. The Minister may then seek further information, request additional assessments, and will ultimately decide whether to consider and exercise the power.

Not automatically. The Ministerial Instructions state that the Minister expects individuals who are the subject of a request to continue making arrangements to leave Australia even while their request is being progressed. However, there are provisions in section 197E of the Migration Act that are relevant to the removal of unlawful non-citizens when ministerial intervention powers are enlivened. The interaction between removal obligations and intervention requests is complex and you should seek legal advice specific to your circumstances immediately.

Yes, but only a Bridging Visa E and you must make a separate request for the Bridging Visa E via immi account. The Department does not advertise processing times for processing Bridging Visa E applications and they can often take several weeks. Once a Bridging Visa E application has been approved by the Department, the Bridging Visa E is typically only granted for between 3 and 6 months. Meaning you may be required to file multiple Bridging Visa E applications whilst your request to the Minister is being considered.

Timing here is critical and your work rights may depend upon it. If you have had a negative Tribunal decision and you are considering Ministerial Intervention, seek legal advice as soon as possible.