Ministerial Intervention
Ministerial Intervention is a special process that is generally only considered after a migration case has already moved through the ordinary application, review or appeal pathways. It is not an ordinary visa application, nor a substitute for administrative review or a court appeal. In particular circumstances it is a request for the Minister for Immigration to personally intervene and make a more favourable decision on the basis of the public interest, exceptional compassionate or humanitarian factors, or other exceptional circumstances.
The threshold for Ministerial Intervention is very high. Even where an applicant has already faced a refusal, a visa cancellation or an unsuccessful administrative review, that does not mean they can necessarily enter the Ministerial Intervention process; and even where a request is lodged, the Minister generally has no legal obligation to consider it or to intervene. These powers are the Minister’s personal powers and are highly discretionary in nature.
NS Legal can help clients assess whether there is a basis for a Ministerial Intervention request, organise material on exceptional circumstances, family impact, protection risk, long-term residence, humanitarian factors and the public interest, and prepare a structured request.
1. What is Ministerial Intervention?
What these powers have in common is that they are not ordinary application rights, but powers under which the Minister decides whether to intervene on the basis of the public interest. An applicant may make a request, but the Minister generally has no obligation to consider it, and no obligation to make a favourable decision.
When can the Minister for Immigration intervene?
Ministerial Intervention refers to the Minister’s personal power under the Migration Act, in particular migration cases, to decide whether to intervene and make an outcome more favourable than the original decision. Common pathways include section 351, section 417 and section 501J, as well as certain provisions dealing with limits on visa applications or on repeat protection visa applications, such as section 46A and section 48B.
Different provisions apply to different situations. For example, section 351 generally relates to an unfavourable decision already made by the review tribunal; section 417 is common in protection visa cases; and section 501J may arise where a protection visa has been refused or cancelled on character grounds. Sections 46A and 48B generally concern legal limits on applying for a visa while in Australia, with the focus on asking the Minister to lift a particular application bar so that the applicant has the opportunity to lodge a particular visa application.
Where Ministerial Intervention sits in the process
Ministerial Intervention is a special process that sits outside both administrative review and judicial review. Administrative review looks at whether a visa decision should be remade; judicial review looks at whether a decision is lawful; while Ministerial Intervention looks at whether a case involves a special public interest, humanitarian factors or other exceptional circumstances sufficient to support the Minister personally exercising the power to intervene.
For this reason, Ministerial Intervention is generally not suited to re-arguing issues that have already been dealt with at the administrative review stage. A request needs to explain why the case has gone beyond what an ordinary visa or review process can address, and why the Minister’s personal intervention is in the public interest.
2. When can you request Ministerial Intervention?
Administrative review usually needs to be completed first
In most cases, Ministerial Intervention can only be considered after the case has been dealt with by the Administrative Review Tribunal (ART) and a review decision has been made. The guidance also makes clear that the Minister will generally only consider cases that have already been through the administrative review process; if a case is still in an ordinary visa application, administrative review or court process, Ministerial Intervention is generally not the appropriate pathway.
If the applicant still has other available visa pathways, can still apply for administrative review, or the case is still within an ordinary review process, Ministerial Intervention will generally not be a first option. It is closer to a special request at the final stage than a part of the ordinary migration process.
Applicants generally need to maintain lawful status
If the applicant lodges a Ministerial Intervention request while in Australia, visa status is very important. The applicant generally needs to maintain lawful residence status, for example by holding a valid substantive visa or a bridging visa. In some cases, where a visa has already expired, it may be necessary to deal promptly with a Bridging Visa E or other lawful-status issues.
A Ministerial Intervention request does not, in itself, automatically extend an existing visa, nor does it mean the applicant can stop dealing with departure, visa expiry or status issues. Even after a Ministerial Intervention request has been lodged, an applicant without a valid visa or lawful-status arrangement may still face migration compliance risk.
Which situations generally cannot or should not request it?
Ministerial Intervention is not a remedy for every unsuccessful case. In general, where there is no relevant review decision, where the review tribunal considers the case to be outside its jurisdiction, where the review application is out of time, where the case still has other ordinary visa pathways, where the same request is already being processed, or where the Minister has previously intervened and made a decision, it is generally very difficult for a case to reach the stage of the Minister’s personal consideration.
In addition, if the applicant can still apply for another, more appropriate visa, or the case is still within an ordinary migration process — for example an unfinished administrative review, court proceeding or departmental reconsideration — Ministerial Intervention is generally not suited to bypassing existing legal pathways.
Not sure whether your case has the exceptional basis required for Ministerial Intervention?
3. What circumstances may support Ministerial Intervention?
Serious impact on Australian family members
In Ministerial Intervention cases, the impact on family members is often one of the important considerations. This is especially so where the case involves minor children, Australian citizen or permanent resident family members, long-term caring responsibilities, a family violence background, illness, disability, mental health issues or a relationship of high dependence. In such cases the request generally needs to explain the specific consequences that may follow if the applicant has to leave Australia.
Common situations include:
- minor children may face family separation, the loss of their primary carer, or forced changes to care arrangements;
- children were born or have grown up over a long period in Australia, and are already integrated into school, the community and local life;
- family members have a clear dependence on the applicant for financial, medical, mental health or day-to-day support;
- a spouse, parent or other family member relies on the applicant for ongoing care because of health, age or special needs.
Where a case involves Australian citizen children, the material generally needs to set out further detail about the children’s age, education, family arrangements, and the impact that the applicant’s departure may have on their development and the stability of their lives.
Medical, age, mental health or care factors
Where the applicant or their Australian family members have serious health problems, age-related factors, mental health risks or ongoing care needs, these may also form an important part of a Ministerial Intervention request. The supporting material generally needs to include medical reports, treatment records, an explanation of care arrangements, expert opinions, and an explanation of the difference in the support available inside and outside Australia.
For example, the applicant may be the primary carer of an Australian citizen relative who has high-intensity care needs; or the applicant themselves, because of their health, trauma or psychological condition, may face a clear risk of deterioration after departure. These factors need to be established through objective evidence, not personal statements alone.
A special contribution to Australia or the public interest
Some cases may involve a special economic, scientific, cultural, social or skills contribution by the applicant to Australia. The supporting material may include long-term employment, professional skills, employer support, an industry shortage, community contribution, business activity, research outcomes or cultural contribution.
The focus of this kind of ground is not simply that the applicant personally wishes to remain in Australia, but whether their continued presence in Australia has any real significance for Australian society, the economy or the public interest. For example, where an applicant has skills in an occupation in shortage in Australia, is currently working in a relevant role, and can provide qualifications, evidence of employment and employer support, the case may more readily be brought into a public-interest analysis.
Protection, humanitarian risk or inability to return to the country of origin
Ministerial Intervention may also arise in a protection visa context. For example, an applicant may have been unsuccessful in the ordinary protection visa process but there are new country conditions, humanitarian risks that have not been fully addressed, family members engaging protection obligations, or an inability to actually return because the country of origin will not cooperate. The guidance also notes that the Minister may consider cases involving an inability to return to the country of nationality, the existence of protection risk, or a protection visa refused on character grounds where a risk of harm nonetheless remains.
These cases require very careful distinction between an ordinary protection visa claim and a Ministerial Intervention request. If a case simply repeats the original protection grounds, without new circumstances, exceptional factors or a basis that can be considered under the Minister’s guidelines, it is generally difficult to make out an effective request.
4. Which cases will the Minister generally not consider?
Other ordinary visa or review pathways remain
If the applicant still has other viable visa pathways — for example a partner visa, a medical treatment visa or another substantive visa — or if administrative review or court proceedings have not yet concluded, Ministerial Intervention will generally not be regarded as an appropriate pathway. Ministerial Intervention is not intended to replace the ordinary visa system, nor to obtain an outcome early while other processes are still on foot.
Before preparing a request, it is generally necessary to determine whether the available visa pathways have genuinely been exhausted. If a more appropriate ordinary pathway still exists, a Ministerial Intervention request is unlikely to be referred for the Minister’s personal consideration.
Repeat requests or a lack of new material
If an applicant has previously lodged a Ministerial Intervention request that has already been considered or refused, lodging the same or a highly similar request again is generally very difficult to have accepted. The guidance also notes that where a previous request was refused within a particular period, or where an existing request is still being processed, a repeat request will generally not be referred to the Minister.
A new request generally needs to involve substantial new circumstances — for example a major change in a family member’s health, a clear change in a minor child’s situation, a worsening of conditions in the country of origin, the applicant obtaining new key evidence, or other important material that could not previously be provided. Without a new factual basis, a significant change in circumstances or additional evidence, re-lodging the same grounds is generally unlikely to receive further consideration.
Only ordinary hardship or general inconvenience
Leaving Australia may cause hardship in the applicant’s day-to-day life, work, studies, family or finances, and this can arise in many migration cases. Ministerial Intervention generally requires exceptional, compelling or unusual circumstances, not inconvenience in the ordinary sense.
For example, lost job opportunities, a lower standard of living, difficulty readjusting to the country of origin, or an interrupted study plan are generally not enough on their own. A request needs to explain why the hardship goes beyond the usual consequences of an ordinary migration decision, and why the case has a public-interest, humanitarian or other exceptional basis.
Serious character or public safety risk
If the applicant has a serious criminal record, ongoing unlawful conduct, family violence, sexual offences, violent offences or other matters that may pose a risk to the Australian community, Ministerial Intervention generally becomes significantly more difficult. While certain protection or humanitarian factors may still need to be considered, a request must directly address community safety, the taking of responsibility, changed behaviour, the risk of reoffending and the impact on victims.
Such cases cannot simply emphasise family hardship or time spent living in Australia; they also need to address head-on why allowing the applicant to remain in Australia would not create an unacceptable risk.
5. Preparing the material for a Ministerial Intervention request
Key points for the material
A Ministerial Intervention request generally needs to be made in writing and to set out clearly which power the applicant is asking the Minister to use, what processes the case has already been through, why it meets the Ministerial Intervention guidelines, and what exceptional facts support the request. The guidance also notes that a request generally needs to include the relevant personal details, the departmental file number, the family members the request covers, the applicable provisions and the supporting material, and to ensure that non-English material is translated.
When preparing the material, it is important not to write a Ministerial Intervention request as an ordinary appeal for sympathy. An effective request generally needs to be organised around grounds that can be considered — such as serious impact on Australian family members, the best interests of children, medical and care needs, an inability to return to the country of origin, a special contribution to Australia, long-term residence, or other exceptional circumstances.
Evidence requirements
The strength of a Ministerial Intervention request depends, to a large extent, on the quality of the evidence.
- family hardship needs to be supported by evidence of family relationships, care arrangements, school records, medical certificates or psychological reports;
- health issues need material from doctors, specialists or treating institutions;
- employment and skills contributions need qualifications, employer confirmation, employment contracts, evidence of industry demand or tax records;
- an inability to return to the country of origin needs to be supported by country information, government documents, travel document issues or other objective material.
Personal statements should be corroborated by objective evidence. For cases involving family, health, education, employment or care factors, the corresponding supporting material is often decisive.
For cases involving minor children or Australian citizen children, the evidence should not be limited to birth certificates or passports, and may include:
school records, opinions from teachers or counsellors
community support letters
medical or psychological material
an explanation of family care arrangements
and material showing that the children have already established a stable life in Australia — all of these can be of real assistance. In some cases, support from the local community, employers or public representatives can also be organised into the request as part of the overall public interest and community connection.
Ministerial Intervention cases generally require a number of factors to combine into an overall exceptional set of circumstances — for example family impact, the best interests of children, medical needs, a long-term residence background, community connections and a contribution to Australian society.
Processing time and visa status
Ministerial Intervention has no fixed processing time. The time taken can vary considerably between cases, and some cases may involve a long wait. Lodging a request does not, in itself, resolve the applicant’s visa status, nor does it automatically confer work rights or a lawful residence arrangement.
Managing visa status is therefore very important. Applicants need to confirm whether they still hold a valid visa, whether they need to apply for a Bridging Visa E, whether there is a requirement to depart, and whether they are subject to limits on work rights or other visa conditions.
This step is especially important for cases that have involved unlawful status, an expired visa or a procedural error, because status issues can themselves further affect work, family finances and later application arrangements.
In practice, many applicants only begin to consider Ministerial Intervention after a visa refusal, an unsuccessful review, a visa expiry or even a period of unlawful status. At that point, in addition to preparing the Ministerial Intervention material itself, it is also necessary to assess the current visa status and subsequent status arrangements at the same time.
6. What happens after a Ministerial Intervention request?
The request is referred for the Minister’s personal consideration
Not every Ministerial Intervention request actually reaches the Minister personally. Many requests are first screened by the Department against the Minister’s guidelines. Only cases that meet the guidelines and have sufficient exceptional features or a public-interest basis may be referred to the Minister or an Assistant Minister for further consideration.
If a request is referred, that does not mean it will necessarily succeed. The Minister retains the final decision on whether to intervene. Even where a case has compelling humanitarian factors, that does not mean the Minister must make a favourable decision.
The request is not referred, or is refused
If a request does not meet the guidelines, the Department may finalise it directly, and it will not reach the stage of the Minister’s personal consideration. If the Minister or the relevant area of the Department decides not to intervene, the applicant generally needs to assess whether any other legal or visa pathways remain.
After a Ministerial Intervention request is refused, a further request generally needs to be supported by new, substantial material. Re-lodging the same content is generally unlikely to change the outcome.
Possible outcomes if the Minister intervenes
If the Minister decides to intervene, the outcome may be more favourable than the original decision — for example substituting a decision for the administrative review decision, allowing the applicant to lodge a particular visa application, or making another favourable arrangement under a particular provision. The specific outcome depends on the Ministerial power used and the type of case.
For the applicant, a successful Ministerial Intervention generally means the case has been given a special opportunity outside the ordinary process. Such outcomes are, however, very limited, and cannot be relied upon as an ordinary way of planning a migration.
7. How NS Legal can help
NS Legal can help clients assess whether there is a basis for a Ministerial Intervention request, determine whether the case already meets the procedural preconditions, and identify the exceptional factors that may be considered under the Minister’s guidelines.
We can help clients prepare a structured request, including a statement on family impact, material relating to minor children, medical and mental health evidence, care arrangements, evidence of long-term residence, employment and community-contribution material, evidence of an inability to return to the country of origin, and other documents supporting the public interest or exceptional compassionate or humanitarian factors.
If you have already completed the administrative review process and currently have no other ordinary visa pathway, we recommend contacting the NS Legal team early to assess whether Ministerial Intervention is suitable for your situation, and to deal with visa status, bridging visas and the associated risks.
Completed administrative review and have no other ordinary visa pathway?
Frequently Asked Questions
Is Ministerial Intervention an appeal?
No. Ministerial Intervention is neither administrative review nor a court appeal. It is the Minister exercising a personal power, in particular circumstances, on the basis of the public interest or exceptional factors, to decide whether to intervene in a case.
Do I have to go to the ART first before I can request it?
In most cases, Ministerial Intervention can only be considered after the Administrative Review Tribunal (ART) has made a relevant decision. If the case is still within an ordinary visa application, administrative review or court process, it is generally not appropriate to request Ministerial Intervention directly.
Does Ministerial Intervention have a high success rate?
The success rate is generally very low. The Minister has no obligation to consider or intervene in any individual case, and only cases with exceptional, compelling or public-interest factors may receive further consideration.
Can I stay in Australia indefinitely after requesting Ministerial Intervention?
Not necessarily. A Ministerial Intervention request does not, in itself, automatically extend a visa. Applicants need to confirm whether they still have lawful status, whether they need to apply for a Bridging Visa E, and whether there is any departure or visa-condition risk.
Which situations are more suited to a Ministerial Intervention request?
Situations more likely to be considered include serious impact on Australian citizen or permanent resident family members, the best interests of minor children, significant medical or care needs, a special contribution to Australia, an inability to return to the country of origin, or exceptional circumstances that the ordinary legal processes cannot address.
If I have requested Ministerial Intervention before, can I request it again?
You generally need new, significant changes in circumstances or supporting material. Re-lodging the same grounds is generally very difficult to have reconsidered.
Need to assess whether Ministerial Intervention is right for your situation? Contact NS Legal
We provide clear, practical legal advice to help you assess the basis for a request, organise the exceptional factors and manage your visa status.
