Immigration Law in Australia

Regulation of migration has become an important part of the nation state system. Immigration law in Australia is the responsibility of the Commonwealth government. The government department in charge of immigration matters is the Department of Home Affairs (hereinafter ‘the Department’). The name of the Department has changed several times in the last twenty years. Undoubtedly, it will continue to change as each government formulates its policies on immigration.

The purpose of migration legislation is to regulate the movement of people in and out of Australia. Within this main purpose are other concerns, such as managing Australian resources, preventing the spread of contagious diseases, such as tuberculosis, and ensuring that people entering Australia are properly identified.

Sources of Migration Law

There are two main sources of migration law in Australia, the Migration Act 1958 (Cth) (the Act) and the Migration Regulations 1994 (Cth) (the Regulations). The Act provides the legal framework and the Regulations provide the procedures. The Regulations support the implementation of the Act.

Part Two of the Act deals with the arrival, presence and departure of non-citizens, and the conditions on which the Department may invalidate a visa and deport a visa holder. There are 12 schedules to the Migration Regulations, the first two of which 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 lodgement for a valid visa application. The second schedule prescribes (gives) the individual requirements of each visa subclass, including the conditions for granting each visa. The Regulations also give the Minister power to make legal instruments to deal with how and where visas should be lodged and what forms are required.