In case you missed it, the High Court’s 2023 decision in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10 fundamentally disrupted Australia’s ministerial intervention system, declaring that officers of the Department of Home Affairs could not effectively exercise the power of the Minister to intervene in certain visa cases. This power belonged exclusively to the Minister.

Two and a half years later, Minister Tony Burke’s September 2025 guidelines[i] represent the government’s response, establishing a new framework that attempts to balance legal compliance with administrative efficiency. In this note, I focus exclusively on the Minister’s intervention power under section 351 of the Migration Act 1958.

The Davis Judgment Background

The Davis case arose from the 2016 Ministerial Guidelines, which directed departmental officers to filter intervention requests and only refer cases with “unique and exceptional circumstances” to the Minister for consideration. The High Court ruled unanimously that this system was constitutionally invalid because it allowed officers to make what were effectively final decisions on matters that the Migration Act reserved exclusively for ministerial determination.

The judgment created immediate chaos for thousands of pending cases and forced a fundamental rethink of how ministerial intervention powers could be lawfully exercised while maintaining administrative practicality.

The New Framework: Objective Criteria Replace Subjective Assessment

Minister Burke’s 4 September 2025 decision represents a dramatic shift from discretionary to objective assessment criteria. While it remains that the Minister’s power can only be accessed following a merits-review decision by the Administrative Review Tribunal to affirm the refusal of a visa application, the new guidelines establish twelve specific categories where the Minister will personally consider intervention requests.  This fundamentally changes the system’s operation from one of broad discretion to defined and closed categories.

The most significant categories include:

  • Parents of an Australian citizen or permanent resident child who was a minor at the time of the request;
  • Individuals with chronic life-threatening conditions requiring treatment unavailable in their home countries;
  • People certified as permanently unfit to depart Australia;
  • Skilled workers in occupations on strategic skills lists who are currently employed in those roles and have the support of an employer;
  • Carers of Australian citizens with disability ratings above 30 points where no other family support exists;
  • Protection visa holders or those with protection findings who face character-based exclusions.

Falling within a category does not guarantee a positive outcome, but it does mean the application will be considered by the Minister.

Winners and Losers?

One of the most interesting developments is the sponsorable occupations category. That is, skilled workers in occupations on a strategic skills list who are currently employed in the role and have the support of an employer. This category may in practice operate as an alternative employer sponsored pathway where the employee is lacking sufficient English and/or is too old for the standard visa programs, but the case otherwise may be considered unique and exceptional.

Perhaps the most significant exclusion from the list of categories are people with severe health issues or disabilities. This cohort will no longer have an avenue to seek Ministerial Intervention via a Department request. However, the Minister’s directive does not rule out the possibility of drawing such cases to the Minister’s attention through other avenues such as the media or parliamentarians.

Legal Compliance Versus Administrative Reality

The new system attempts to solve the Davis problem by removing all discretionary assessment from departmental officers. Officers can now only perform mechanical checks against the twelve objective criteria – either a case meets the requirements or it doesn’t, with no scope for subjective judgment about merit or exceptional circumstances.

This represents a fundamental philosophical shift from the previous system’s focus on “unique and exceptional circumstances” to specific, measurable criteria that can be verified through documentation and evidence.

Implications for Future Cases

The September 2025 guidelines create both opportunities and limitations for future intervention seekers. While the criteria are now transparent and objective, they are also restrictive.

Notably absent are broader humanitarian or compassionate grounds that previously might have qualified under “exceptional circumstances.” The system now prioritizes specific vulnerability categories and strategic migration needs over general hardship cases.

[i] https://immi.homeaffairs.gov.au/what-we-do/status-resolution-service/ministerial-intervention;

https://immi.homeaffairs.gov.au/refugee-and-humanitarian/Pages/Ref-and-hum-program/documents/positive-personal-procedural-decision-351-501J.pdf;

https://immi.homeaffairs.gov.au/refugee-and-humanitarian/Pages/Ref-and-hum-program/documents/ministerial-Instructions-351-501J.pdf

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This article is for general information purposes only and does not constitute legal or professional advice.  It should not be used as a substitute for legal advice relating to your particular circumstances.  Please also note that the law may have changed since the date of this article.