Australia is a world-renowned immigrant country with a well-developed and diverse immigration system. In this article, we aim to provide a brief overview of the structure and operation of the Australian migration system so you gain a better understanding of this very special area of law。

Governed by legislations

The most important thing about Australian migration law is that it is a construct of the parliament. It is, essentially, governed entirely by legislations. The applicable legislations are the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth). Also relevant are the Citizenship Act 2007 (Cth) and the Citizenship Regulations 2016 (Cth) that are applicable to applicants who wish to apply to the Department of Home Affairs to become Australian citizens.

The implication, therefore, is that migration policies and procedures must strictly comply with the legislations and that there is almost no room for discretion (unless expressly permitted by the legislations). Very often clients ask us ‘is it possible for the Department to sympathise with my situation?’ – the answer, unfortunately, is ‘no’. Not because the Departmental officers are heartless, but because they do not have the power to do so – unless, of course, we approach the Minister himself.

2-step process

All applications (visa and citizenship) follow a 2-step process, namely: a) a valid application; and b) satisfaction of all visa criteria at the time of application and at the time of decision.

While the differences seem nuanced, they are crucial because problems and mistakes at difference processes will result in radically different consequences.

there is almost no room for discretion (unless expressly permitted by the legislations)

problems and mistakes at difference processes will result in radically different consequences