The sources of migration law

The Migration Act 1958 (Cth) (“Migration Act”) and the Migration Regulations 1994 (Cth) (“Migration Regulations”) are the two most important sources of migration legislation in Australia.

The bulk of the Migration Act deals with the control of arrival of non-citizens to Australia. Part 2 of the Migration Act deals extensively with the arrival, presence and departure of non-citizens, conditions that may preclude or invalidate a visa, and the enforcement of non-citizens with respect to deportation.

The Migration Regulations list 12 schedules in total. The first two schedules are generally considered to be the most important. The first schedule of the regulations lists the (alphabetical) visa classes and (numerical) subclasses, with the form and fee and place of lodgment to qualify a valid visa application. The second schedule prescribes the individual requirements of each visa subclass and “stream” within a subclass, including the conditions for grant of each visa. The Migration Regulations also allow the minister to make legal instruments to deal with how and where visas should be lodged and what forms are required.

The Procedures Advice Manual, published by the Australian Government Department of Home Affairs (“Home Affairs”) is in its third edition. The manual annotates migration legislation and provides policy and procedural instruction relevant to the legislation. It is used as a guide by departmental officers when administering migration legislation and determining the status of related applications.

Referring to the manual is very helpful for those who seek to understand how migration legislation is administered, and for those seeking to gauge the likelihood of success of migration applications. You can access the Procedures Advice Manual by lodging a request – with Home Affairs under the Freedom of Information Act 1982 (Cth) – to obtain copies of relevant chapters (for Home Affairs’ contact details, seeContacts”).