Ministerial Intervention refers to the Minister’s discretionary power under the Migration Act 1958 that allows the Minister for Immigration and Citizenship to personally intervene in certain visa matters if it is in the public interest to do so.
These powers are:
- Personal: only the Minister can exercise them
- Non-delegable: cannot be exercised by departmental officers
- Non-compellable: the Minister is not required to consider or respond to any request
Frequently Asked Questions
Types of Ministerial Intervention
There are several ways in which the Minister may intervene under the Migration Act 1958.
1. Section 351 and 501J – Tribunal Decisions
These powers are used when a visa refusal has been affirmed by the Administrative Appeals Tribunal (AAT) or Administrative Review Tribunal (ART). Using the section 351 or section 501J powers, the Minister may substitute a more favourable decision if it is in the public interest.
2. Section 46A – Bar on Visa Applications for Unauthorised Maritime Arrivals (UMAs)
If your initial arrival in Australia was as an Unlawful Maritime Arrival (UMA), section 46A(1) prevents you from applying for a visa in Australia (including a protection visa). You may request the Minister to lift the bar under section 46A(2) to allow you to apply for a specific visa subclass.
3. Section 48B – Bar on Repeat Protection Visa Applications
If you have previously been refused or had a protection visa cancelled, section 48A prevents you from applying again for another protection visa while in Australia. You may request the Minister to lift the bar under section 48B(1) to allow a new protection visa application.
4. Other powers
Whilst the above powers are the most common, there are also other powers in the Migration Act that allow the minister to intervene in specific cases, for example, if you are in detention under section 195A.
Referral to the Minister
Requests may be referred to the Minister if they meet the criteria outlined in the Ministerial Instructions. These instructions are found here:
- Ministerial Instructions under sections 351 and 501J of the Migration Act 1958
- Ministerial Instructions for processing requests for Ministerial intervention under subsection 48B(1) of the Migration Act 1958
- Ministerial Instructions for processing requests for Ministerial intervention under subsection 46A(2) of the Migration Act 1958
Ministerial Intervention Positive Referral grounds
Section 351 and 501J
- Parent of an Australian citizen or permanent resident child who was a minor at the time of the request
- Skills & Employment
- Has skills for a relevant occupation listed in section 14
- Currently working in that occupation
- Provides required evidence (skills assessment, qualifications, employment proof)
- Business Visa Pathway
- Previously held Subclass 188 (Business Innovation & Investment – Provisional)
- Now meets criteria for Subclass 888 (Permanent) regarding time spent in Australia
- Carer Circumstances
- Carer of an Australian citizen needing care
- Holds Carer Visa Assessment Certificate (CVAC) with impairment rating ≥30
- No other family members available and care services otherwise unavailable
- Protection Visa Issues
- Excluded from grant or had protection visa cancelled/refused on character grounds
- A protection finding exists under s197C
- Immediate Family & Non-Refoulement
- Immediate family of a child who:
- Engages Australia’s non-refoulement obligations
- Holds or held a protection or humanitarian visa
- Immediate family of a child who:
- Child Welfare
- Under 18 and in care of an Australian State/Territory welfare authority
- Adoption visa
- Meets requirements of scl 102.211(2) but refused under (b)(ii) because the adoptive parents had not resided overseas for more than 12 months prior to lodging the application
- Long-Term Residence as Minor
- Entered Australia as a minor and lived here for at least half their life
- Health would be adversely affected if returned
- No family in countries where they have a right to reside
- Cannot return to country of citizenship
- Country of citizenship refuses to cooperate with voluntary return
Section 48B
- New country information or changed circumstances (including receiving country situation) after PV refusal/cancellation, suggesting non-refoulement obligations may apply
- May engage non-refoulement obligations, but no formal protection finding under s197C.
- Previously held PV as family member, visa cancelled under s140
- Previously held PV as family member, own protection claims never assessed, PV later cancelled
- Minister previously lifted 48A bar, but person missed timeframe to lodge application
- Pre-removal clearance or non-statutory assessment (e.g., s197D(2) or International Treaties Obligations Assessment) found person engages or may engage protection obligations
- Minister requests referral for consideration
Section 46A(2)
A summary of the grounds for a positive referral to the minister under section 46A are below:
- Never had 46A bar lifted and screened in for statutory protection assessment
- Not subject to 48A bar, previously assessed non-statutory, and new country info supports protection claims
- Changed circumstances (including receiving country situation) after non-statutory assessment, potentially engaging non-refoulement obligations
- Subject to 48A bar and meets criteria under paragraph 11.1 of s48B instructions, but also needs 46A bar lifted
- Missed TPV/SHEV application window after previous 46A bar lift or revocation, now wishes to apply
- Found to engage protection obligations under s36(2) after non-statutory process, never granted substantive visa
- Previously held PV as family member, PV holder’s visa cancelled under s140, causing UMA’s cancellation
- Previously held PV as family member, own protection claims never assessed, PV later cancelled
- Unlawful non-citizen previously granted HSTV to lodge Bridging E visa application
- Never granted HSTV or SPV to lodge BVE application
- Family unit member of person engaging protection obligations, needs 46A bar lift to be included in PV application
- Minister requests referral for consideration
How to Make a Request
Requests must be:
- Made in writing
- Submitted online or posted to the Minister’s office
- Supported by certified and translated documents
- Clearly identify:
- The relevant intervention power (e.g. 46A, 48B, 351, 501J)
- The relevant ground in the instructions
- The names of all individuals included in the request
- Your departmental reference number if you have it
Important Notes
- You may apply for a Bridging Visa E while your request is being considered
- You cannot leave Australia while your request is pending
Book a free 10 minute consultation with our immigration lawyers to determine if you can apply for ministerial intervention.