Ministerial Intervention Guidelines 2026: What Applicants Need to Know

Ministerial intervention occupies a narrow and exceptional place within Australia’s migration system. It is not intended to correct unfavourable outcomes simply because they appear harsh, nor does it operate as a further stage of review following tribunal or court proceedings. Rather, it is a discretionary power exercised personally by the Minister for Immigration in circumstances where the public interest is considered to justify a different outcome to that produced by the ordinary operation of migration law.

In September 2026, updated ministerial intervention guidelines were introduced, reshaping how such requests are assessed and, critically, how they are filtered before any matter reaches the Minister. These changes follow judicial scrutiny of earlier practices and have significant implications for applicants considering whether ministerial intervention is available or appropriate in their circumstances. These reforms are intended to address earlier legal challenges and establish a more legally robust process for handling requests.

Overview of the New Ministerial Intervention Guidelines

The September 2026 framework, supported by new Ministerial Instructions and Personal Procedural Decisions, was introduced to bring greater clarity and legal certainty to the handling of ministerial intervention requests under the Migration Act 1958. While the Minister’s discretionary powers remain unchanged, the pathway to referral has been more clearly defined, particularly at the departmental assessment stage.

Under the new ministerial intervention guidelines, departmental officers within the Department of Home Affairs apply a structured screening framework, forming part of a new objective criteria set, before any request may be referred. This is intended to ensure consistency in how requests are assessed and to prevent matters that do not raise genuine public interest considerations from progressing further in accordance with the new Ministerial Instructions and associated Personal Procedural Decisions. The framework also reflects the Department’s obligation to operate within published, legally valid guidance following judicial scrutiny.

In practical terms, applicants should understand that the framework clarifies

• The limited role of departmental officers in preliminary assessment
• The distinction between screening and ministerial discretion
• The fact that referral remains the exception rather than the norm

The guidance reinforces that ministerial intervention is discretionary, personal to the Minister, and non-compellable under the new framework introduced in September 2026. Lodging a request does not create an entitlement to consideration, intervention, or reasons if intervention does not occur. Requests for ministerial intervention are administrative in nature and do not form part of the statutory visa application process under the Migration Act.

Why the Guidelines Have Changed

The 2026 reforms reflect the need to align administrative practice with judicial authority and to address long-standing concerns about how requests were screened. Over time, a significant backlog developed, and earlier approaches relied on screening practices that were not always anchored in published, legally robust guidance.

The Impact of the High Court’s Decision in Davis (2023)

The High Court’s decision in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA was a decisive factor in prompting reform. The Court examined whether departmental officers could lawfully apply informal criteria when deciding which requests should be referred to the Minister.

The decision confirmed that referral decisions must be made according to lawful, published guidance and that informal or opaque screening practices were legally unsustainable. As a result, the Department was required to revise both its handling of existing requests and its approach to new ones. The current ministerial intervention guidelines are a direct response to that ruling.

Goals of the 2026 Framework

The revised framework seeks to restore legal certainty and consistency while reinforcing the limited nature of ministerial intervention. It aims to ensure that requests are assessed against articulated public interest considerations and that legacy matters are managed through transparent transitional arrangements rather than indefinite deferral.

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What the New Guidelines Mean for Current and New Requests

A key feature of the ministerial intervention new guidelines is the distinction between requests lodged before and after Davis.

Pre-Davis Caseload (Existing 351 & 501J requests)

Requests lodged prior to Davis are subject to transitional handling set out in the Minister’s PPDs. Many of these matters were assessed under practices that no longer meet current legal standards.

In practice, this means that some long-standing requests may be finalised without referral to the Minister. Whether a fresh request may be appropriate depends on whether materially new information exists and whether the current public interest criteria can realistically be addressed.

Post-Davis Caseload (New Requests)

Requests lodged under the current framework are assessed strictly against the published criteria. These new rules reflect a tighter process for assessing new requests. Departmental officers act as gatekeepers, determining whether a request raises issues that may warrant ministerial consideration.

Submissions that attempt to re-argue tribunal findings or rely primarily on non-exceptional hardship are unlikely to progress beyond preliminary assessment.

Key Changes Introduced in the 2026 Guidelines

The 2026 framework introduces a more structured and legally robust approach to handling ministerial intervention requests. The new ministerial intervention guidelines clarify the limits of departmental assessment and reinforce that referral to the Minister is reserved for exceptional cases that meet clearly articulated criteria.

Public Interest Requirements

Under the ministerial intervention guidelines, the public interest test remains central. Requests must raise considerations that extend beyond the individual circumstances of the applicant. Ordinary hardship or dissatisfaction with an earlier decision is generally insufficient.

Public interest considerations may include:

• Unintended or anomalous outcomes arising from the operation of the Migration Act;
• Exceptional humanitarian circumstances; or
• Matters engaging Australia’s international obligations where no other visa pathway is available

Who Can Make a Request and How to Lodge It

Requests for ministerial intervention are administrative in nature and do not form part of the statutory visa application process. In practical terms:

• Requests may be made by the affected person or an authorised representative
• Requests must be lodged in accordance with the new ministerial instructions and framed objectively
• Repeat requests are generally not progressed unless materially new information arises
• Individuals whose earlier requests were finalised following the September 2026 changes may submit a new request, provided it aligns with the current criteria

Appropriate vs Inappropriate Circumstances

The ministerial intervention new guidelines draw a clearer distinction between appropriate and inappropriate uses of ministerial intervention. Appropriate circumstances may involve exceptional or systemic issues not addressed through ordinary migration processes. Inappropriate circumstances include attempts to re-argue tribunal findings or to use ministerial intervention as a substitute appeal.

Departmental Assessment Process

Before any matter is referred, departmental officers within the Department of Home Affairs assess requests against the published criteria, the Ministerial Instructions, and associated Personal Procedural Decisions. Only a limited number of cases are referred to the Minister, who is not obliged to intervene or provide reasons.

Powers Covered Under the New Guidelines

The September 2026 framework applies to specific discretionary powers under the Migration Act 1958.

Sections 351 & 501J – Substituting a More Favourable Decision

Sections 351 and 501J permit the Minister to substitute a more favourable decision following tribunal review where it is considered to be in the public interest to do so. These powers are personal and exercised sparingly.

Subsection 46A(2) – Allowing UMAs to Apply Onshore

Subsection 46A(2) allows the Minister to lift the statutory bar preventing certain unauthorised maritime arrivals from applying for visas onshore. The new framework emphasises the exceptional nature of this power and the broader policy considerations involved.

Subsection 48B(1) – Lifting the s48A Bar

Subsection 48B(1) permits the lifting of the bar on further protection visa applications. Requests commonly turn on whether genuinely new and compelling material exists and whether public interest considerations are engaged.

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Book a Consultation‍

If you are interested in getting more information about a visa, get in touch with Australian Migration Lawyers for a consultation.

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What the Changes Mean for Applicants

As a result of the 2026 reforms, applicants must navigate stricter criteria and a more rigorous process, making it crucial to understand the implications and prepare accordingly.

Stricter Gatekeeping and Fewer Referrals

The revised framework implements stricter gatekeeping measures. Only cases that meet the objective criteria will be considered for referral to the Minister.

The Importance of Legal Advice Before Lodging a Request

Given the complexity of the process and the narrow scope of ministerial intervention powers, applicants are encouraged to seek legal assessment to determine whether a request is within scope and how it should be structured.

What Applicants Should Do Next

Applicants should identify the relevant statutory power, understand the public interest basis relied upon, and avoid treating ministerial intervention as an alternative appeal pathway.

Get Professional Advice on Ministerial Intervention Requests

Ministerial intervention remains exceptional and discretionary. The introduction of the new ministerial intervention guidelines underscores the importance of careful legal assessment before lodging any request. Applicants are encouraged to seek guidance from an immigration lawyer regarding how the new ministerial intervention framework may apply to their circumstances. Contact Australian Migration Lawyers for legal guidance regarding ministerial intervention requests.