The Sources of Migration Law

Based on the contribution of Michael Clothier, Accredited Immigration Law Specialist, as amended by Er-kai Wang, migration agent and Associate Lecturer, ANU College of Law and current to 19 July 2018.

NOTE: Readers should be aware that the Migration Regulations change rapidly. Before using the information listed here, we recommend that you check if the law still current by seeking advice from a migration agent or visiting the Department of Home Affairs' website.

Under the Australian Constitution, the federal Parliament has the power to make laws with respect to immigration and aliens. The most relevant sub-sections of the Constitution are ss 51(xix) (naturalisation and aliens) and (xxvii) (immigration and emigration). The Migration Act 1958 (Cth) ('Migration Act') and the Migration Regulations 1994 (Cth) ('Migration Regulations') are the two pieces of legislation that govern immigration 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, circumstances under which visas may be cancelled, and the enforcement of non-citizens with respect to mandatory detention, removal or deportation.

The current Migration Regulations list 11 schedules in total. The first two schedules are generally considered to be the most important. Schedule 1 of the Regulations lists the (alphabetical) visa classes and (numerical) subclasses, with the approved form, visa application charge ('VAC'), place of lodgement and other criteria in order to qualify a valid visa application. Schedule 2 prescribes the individual requirements of each visa subclass and “stream” within a subclass, including the conditions for grant of each visa.

The Procedures Advice Manual, published by the Australian Government Department of Home Affairs ('the Department') is in its third edition ('PAM3'). PAM3 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. PAM3 also guides members of the Administrative Appeals Tribunal ('AAT').

Referring to PAM3 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 PAM3 by lodging a request – with the Department under the Freedom of Information Act 1982 (Cth) – to obtain copies of relevant chapters (for the Department of Home Affairs’ contact details see Contacts and Resources).

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