Ministerial intervention (s 351, s 417)
Overview
Sections 351 and 417 of the Migration Act 1958 (Cth) give the Minister for Home Affairs a personal, non-compellable, and non-reviewable power to substitute a more favourable decision for a decision made by the ART, where the Minister thinks it is in the public interest to do so. Section 351 applies to migration decisions; s 417 applies to refugee and protection decisions. The Minister cannot be compelled to exercise these powers, and decisions to exercise or not exercise them are not subject to merits or judicial review.
Ministerial intervention is a last-resort mechanism for persons who have exhausted the normal review pathways. It is not an appeal and does not guarantee any outcome. The Minister receives thousands of requests each year and exercises the power in a small number of cases, in line with published guidelines.
A separate intervention power under s 501J allows the Minister (or another designated Minister) to set aside a decision refusing to revoke a mandatory cancellation and substitute a more favourable decision.
Legal basis
- Section 351 — personal Ministerial power to substitute a more favourable decision for an ART decision on a migration matter, where the Minister thinks it is in the public interest
- Section 417 — personal Ministerial power to substitute a more favourable decision for an ART decision on a refugee or protection matter, where the Minister thinks it is in the public interest
- Section 351(3) / 417(3) — the power is non-compellable: the Minister does not have a duty to consider exercising these powers and is not required to give reasons
- Section 351(4) / 417(4) — decisions to exercise or not exercise these powers are not reviewable
- Section 501J — the Minister may substitute a decision that a mandatory character cancellation be revoked
How it works
Eligibility to request intervention
A person may request Ministerial intervention after they have received an unfavourable ART decision. Cases may also be referred to the Minister by the ART without the person requesting — the ART may refer a case where it believes the case involves exceptional circumstances.
Ministerial guidelines
The Minister publishes guidelines setting out the circumstances in which they consider using the intervention powers. These guidelines are reviewed periodically and changed with changes in government. Current guidelines are available on the Department of Home Affairs website. Generally, the guidelines identify humanitarian, public interest, or compelling circumstances that may warrant consideration.
Non-compellable nature
Critically, the Minister does not have to consider exercising the power at all. This is confirmed by ss 351(3) and 417(3). Courts have held that the Minister's decision not to exercise the intervention power is not justiciable on the grounds of irrationality or unreasonableness — the power is personal and within the Minister's unfettered discretion.
Process for requests
Requests for Ministerial intervention are made directly to the Department of Home Affairs. There is a prescribed form and process. The person should set out the exceptional circumstances that make their case one where the Minister's personal intervention would be in the public interest. Requests should not duplicate the grounds already considered by the ART; they should identify circumstances not already assessed.
The ART referral mechanism
The ART may refer a case to the Minister where it considers the case raises matters that should be drawn to the Minister's attention — for example, where the ART is legally bound to affirm a decision but considers that the outcome is particularly harsh. A referral does not oblige the Minister to act.
Section 501J — character cases
In character cancellation cases, after the ART has confirmed the cancellation (or where review rights are limited), the only avenue is a personal request to the Minister under s 501J. The same non-compellable, non-reviewable principles apply.