Australian Migration Law and Legal Framework
The statutory architecture
Migration law in Australia is built on the Migration Act 1958 (Cth), which creates the framework of visas, criteria and decision-making powers, and the Migration Regulations 1994 (Cth), which supply the detailed criteria in Schedules 1, 2 and 4 and the definitions in regulation 1.03. A candidate must be able to distinguish the Act (powers, review rights, cancellation regimes) from the Regulations (visa criteria, prescribed forms, fees) and know that policy guidance such as the Procedures Advice Manual (PAM) is not law - it informs but cannot override the statutory text.
Key concepts
Understand the separation between primary and secondary criteria, the role of Ministerial Directions (for example direction 80 on visa refusal and cancellation under s 65), and the constitutional and international context: the Migration Act operates alongside the Australian Citizenship Act 2007, the Administrative Appeals Tribunal Act 1975 (as replaced by the new review body arrangements), and Australia's non-refoulement obligations under the Refugees Convention and complementary protection provisions.
Traps in questions
- Treating PAM as binding authority.
- Confusing the power to grant (s 65) with the power to cancel (ss 116, 128, 133C, 134).
- Assuming all decisions carry merits review - many do not (e.g. character refusals under s 501).
- Forgetting that the Acts Interpretation Act 1901 governs time calculations and that 'month' means calendar month.
Rule of thumb
When a question turns on 'what does the law require', cite the provision first, then the regulation, and only then policy. If the statutory text and policy conflict, the statute wins.