Migration Act 1958

A privative clause decision:

is final and conclusive; and

must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

In this section:

A reference in this section to a decision includes a reference to the following:

granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination;

granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);

granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;

imposing, or refusing to remove, a condition or restriction;

making or revoking, or refusing to make or revoke, a declaration, demand or requirement;

retaining, or refusing to deliver up, an article;

doing or refusing to do any other act or thing;

conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;

a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act;

a failure or refusal to make a decision.

For the purposes of subsection (2), a decision under a provision, or under a regulation or other instrument made under a provision, set out in the following table is not a privative clause decision:

For the purposes of subsection (2), a decision under subsection 185(1) of the ART Act to refer a question of law arising in a proceeding for review of a reviewable migration decision or a reviewable protection decision to the Federal Court for decision is not a privative clause decision.

The regulations may specify that a decision, or a decision included in a class of decisions, under this Act, or under regulations or another instrument under this Act, or under the ART Act, is not a privative clause decision.

A decision mentioned in subsection (4) or (4A), or specified (whether by reference to a particular decision or a class of decisions) in regulations made under subsection (5), is a non‑privative clause decision.

To avoid doubt, the following decisions are privative clause decisions within the meaning of subsection (2):

a decision of the Minister not to exercise, or not to consider the exercise, of the Minister’s power under subsection 37A(2) or (3), section 48B, paragraph 72(1)(c), section 84B, section 91F, 91L, 91Q, 195A, 197AB, 197AD, 198AE, 199G or 351 or subsection 503A(3);

a decision of the Minister under Division 13A of Part 2 to order that a thing is not to be condemned as forfeited.

Section 91Q was repealed by the Migration Amendment (Giving Documents and Other Measures) Act 2023.