Ministerial intervention
Statutory definition
Section 351 of the Migration Act 1958 (Cth) allows the Minister to substitute, for a Migration Review Tribunal (now Administrative Review Tribunal) decision, a decision that is more favourable to the applicant, if the Minister thinks it is in the public interest. Section 417 is the equivalent power following a Refugee Review Tribunal (now ART) decision. Both powers are non-compellable and non-reviewable.
Explanation
Ministerial intervention is a last-resort discretionary power. It is not a further appeal — the Minister acts personally and is not required to consider any particular request or to give reasons.
Key features:
- The power is purely personal — it cannot be delegated
- There is no enforceable right to have the Minister consider a request for intervention
- The Minister's decision whether to intervene (or not) is not subject to judicial review on its merits, though the courts may review jurisdictional error
- Policy documents (Ministerial Guidelines) describe the circumstances the Department will bring to the Minister's attention, but do not constrain the power
How this term is used
In practice, ministerial intervention requests are made after all other review pathways have been exhausted. The majority of requests are not referred to the Minister. Section 351 applies to non-protection matters; s 417 applies after refugee tribunal review. Section 501J allows intervention after character-based cancellation decisions not subject to tribunal review.