Section 351 — Minister may substitute more favourable decision
Text of provision
(1) If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the ART referred to in subsection (1A) another decision, being a decision that is more favourable to the applicant, whether or not the ART had the power to make that other decision.
(1A) For the purposes of subsection (1), the decisions are as follows:
(a) a decision under section 349 of this Act;
(b) a decision under section 368C of this Act;
(c) a decision under section 105 of the ART Act.
(2) In exercising the power under subsection (1), the Minister is not bound by Subdivision AA or AC of Division 3 of Part 2 or by the regulations, but is bound by all other provisions of this Act.
(3) The power under subsection (1) may only be exercised by the Minister personally.
(4) If the Minister substitutes a decision under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that:
(a) sets out the decision of the ART; and
(b) sets out the decision substituted by the Minister; and Migration Act 1958 143 Part 5 Reviewable migration decisions and reviewable protection decisions Division 2 ART review
(c) sets out the reasons for the Minister’s decision, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest.
(5) A statement made under subsection (4) in relation to a reviewable migration decision is not to include:
(a) the name of the applicant; or
(b) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person.
(5A) A statement made under subsection (4) in relation to a reviewable protection decision is not to include:
(a) the name of the applicant; or
(b) any information that may identify the applicant; or
(c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person.
(6) A statement under subsection (4) is to be laid before each House of the Parliament within 15 sitting days of that House after:
(a) if the decision is made between 1 January and 30 June
(inclusive) in a year—1 July in that year; or
(b) if a decision is made between 1 July and 31 December
(inclusive) in a year—1 January in the following year.
(7) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.
Plain English
Section 351 gives the Minister a personal power to override a decision of the Administrative Review Tribunal (Migration and Refugee Division) and substitute a more favourable decision for the applicant. The Minister may only act if they personally form the view that it is in the public interest to do so.
This is the ministerial intervention power in non-protection migration matters (the equivalent power for refugee and protection matters is in s 417 of former provisions, now consolidated under ART reforms).
Practical effect
Section 351 is one of the least-used but most significant powers in Australian migration law. Key characteristics:
- Personal power only — cannot be delegated to any other person
- Non-compellable — there is no legal obligation on the Minister to consider any particular request; no right to have the power exercised
- Not reviewable on merits — the Minister's decision whether or not to exercise the power is not subject to merits review
- May substitute for ART decision only — applies after the ART (Migration Division) has made a decision; does not apply to primary decisions
- Ministerial guidelines — published guidelines identify the criteria the Department uses when deciding whether to refer a case to the Minister's attention, but the guidelines do not constrain the power
Judicial review of refusals to exercise s 351 is possible only in very limited circumstances — courts have held that the decision is largely immunised from judicial review given its non-compellable nature.