The 17 September 2025 Ministerial Instruction: What Changed and What It Means for Your Case
Departmental discretion removed: Under the 2016 guidelines, departmental officers could identify 'unique or exceptional circumstances' and refer cases to the Minister on that basis. That discretion has been entirely removed. Officers must now assess requests strictly against the ten criteria in Section 13. A case that does not fit one of those criteria will not be referred, regardless of how compelling the circumstances appear.
Officers can no longer initiate requests: Previously, a departmental officer could initiate an MI request on an applicant's behalf. Under the new instructions, this is no longer possible. The applicant or their authorised representative must identify and articulate the relevant criterion in the submission itself.
Section 417 formally repealed: Section 417 of the Migration Act — which previously applied to protection visa decisions — has been repealed. However, the Minister can still exercise the s.351 power in cases where s.417 was previously enlivened by a review decision from a former tribunal.
Submissions must specify the criterion: The request must now expressly state which Section 13 criterion it relies on and provide all information relevant to assessing that criterion. A general submission arguing compassionate circumstances without anchoring to a specific criterion will not be referred.
The 17 September amendment removed Clause 12.1.14: The 17 September 2025 version amended the 4 September version by removing Clause 12.1.14 from the list of requests that are inappropriate to refer. This is a technical but important change that slightly expands the category of requests that can be referred.
Section 13 criteria
- 1. Parent of an Australian Minor Child: You are the parent of an Australian citizen or permanent resident child, and that child was under 18 years of age at the time you made your request. This criterion recognises the importance of maintaining family unity where the child is an Australian national.
- 2. Skilled Worker in a Relevant Occupation: Your skills match a relevant skilled occupation under current Department of Home Affairs regulations, you are currently employed in that occupation in Australia, and you can provide verified evidence of your employment and contribution. This criterion reflects the public interest in retaining workers in skill-shortage areas.
- 3. Former Subclass 188 Holder Now Meeting Subclass 888 Criteria: You previously held a Subclass 188 Business Innovation and Investment visa and now meet the time-in-Australia criteria for the Subclass 888 permanent residency visa. This pathway recognises business visa holders who have made a genuine economic contribution to Australia.
- 4. Primary Carer of a Disabled Australian Citizen: You are the primary carer of an Australian citizen or permanent resident who has at least 30% impairment as confirmed by a Carer Visa Assessment Certificate, there are no other eligible family members capable of providing care, and no reasonable alternative care services are available.
- 5. Character Refusal with a Protection Finding (s.197C): Your visa was refused or cancelled on character grounds under s.501 of the Migration Act, but a protection finding was made under s.197C — meaning Australia cannot return you to your home country because of its protection obligations. This criterion ensures compliance with Australia's non-refoulement obligations even in character cases.
- 6. Family Member of a Refugee or Humanitarian Child: You are an immediate family member of a child who engages Australia's non-refoulement obligations, and that child holds or held a protection, refugee, or humanitarian visa. This criterion protects family unity where a child has established protection grounds.
- 7. Applicant Under 18 in State Care: You are under 18 years of age and are currently in the care of an Australian State or Territory child welfare authority, such as foster care. This criterion protects vulnerable children who are embedded in the Australian child protection system.
- 8. Adoption Visa Exception (Clause 102.211): You would have met subclause 102.211(2) for an adoption visa but for a technical failure under paragraph (b)(ii), and the visa was refused solely for that reason. This criterion addresses rare administrative anomalies in adoption pathways.
- 9. Long-Term Resident with Medical or Family Hardship: You arrived in Australia as a child, have lived here for at least 50% of your life, a Commonwealth Medical Officer has certified that returning to your home country would adversely affect your health, and you have no family support in any other country. This is one of the most significant criteria for people who grew up in Australia.
- 10. Stateless or Unable to Return Due to Non-Cooperation: You cannot return to your home country because that country does not recognise you as a national or refuses to issue travel documents. This criterion addresses statelessness and situations where removal is practically impossible.
Questions and answers
Does the new instruction apply to requests already lodged before 4 September 2025?
It depends on when the request was lodged. Requests lodged on or before 11 April 2023 will not be considered under the new instructions unless the applicant falls within a Personal Procedural Decision (PPD) or is listed in the annexure. Requests lodged from 12 April 2023 onwards will be assessed against the new criteria. If your request has been finalised under the PPD process, you can lodge a new request if you meet the Section 13 criteria.
Can I still apply for Ministerial Intervention if my case does not fit any of the ten criteria?
No. The ten criteria in Section 13 are exhaustive under the new instructions. If your circumstances do not fit one of those criteria, your request will not be referred to the Minister. This is a fundamental change from the 2016 guidelines, which allowed referral based on 'unique or exceptional circumstances' more broadly. This is why it is critical to obtain legal advice before lodging — a poorly framed submission that does not engage a criterion will fail at the first stage.
What happens to my request if I leave Australia while it is pending?
If you depart Australia while your Ministerial Intervention request is pending, it will be finalised — unless the Minister has already made a personal decision to consider your case. Departure is treated as an indication that you no longer require the intervention. I strongly advise clients not to depart until they have received a definitive outcome.
Is Ministerial Intervention available after a Federal Court decision?
No. Ministerial Intervention under s.351 and s.501J is only available after a decision by the Administrative Review Tribunal (ART) or the former Administrative Appeals Tribunal (AAT). If the tribunal decision has been quashed by a court, or if the tribunal returned the case to the Department for a fresh decision, the Minister's power is not available.
Can I include family members in my request?
You can only include family members in your request if they have also had a merits review tribunal decision in their own case. You cannot include a family member whose case has not been through the tribunal process.
How long does Ministerial Intervention take?
There is no statutory timeframe. The Minister is not bound by any deadline and is not required to consider your request at all. Processing times vary significantly depending on the volume of requests and the complexity of the case. I have seen cases resolved in months and others that have taken considerably longer. The absence of a timeframe is one of the most difficult aspects of this process for clients to manage.
What is the difference between s.351 and s.501J?
Section 351 applies to cases where a visa has been refused or cancelled for reasons other than character grounds — for example, partner visa refusals, protection visa refusals (following the repeal of s.417), and other merits review decisions. Section 501J applies specifically to cases where a visa has been refused or cancelled on character grounds under s.501 of the Migration Act. Both powers allow the Minister to substitute a more favourable decision if the Minister thinks it is in the public interest to do so.
Do I need a lawyer to make a Ministerial Intervention request?
You are not legally required to have a lawyer, but I would strongly recommend it. The new instructions require the submission to identify the specific Section 13 criterion and provide all relevant supporting information at first instance. The Department will not request further information unless the criteria are met — which means a poorly prepared submission will fail without any opportunity to remedy it. The stakes are high, and the process is unforgiving of errors.