Migration Act 1958

The Migration Act 1958 is the principal legislation governing the entry, stay, and removal of non-citizens in Australia. The Act establishes the visa system, under which non-citizens must hold a valid visa to enter or remain in Australia. The Act provides for the grant, refusal, and cancellation of visas on various grounds, including health, character, and national security requirements. The Act also governs immigration detention, including mandatory detention of unlawful non-citizens, the removal and deportation of non-citizens, the refugee and humanitarian program, and the system of merits review through the Administrative Appeals Tribunal and judicial review in the courts. The Act has been the subject of extensive and complex amendment.

Legal area: Immigration and citizenship law governs the entry, stay, and removal of non-citizens and the acquisition and loss of Australian citizenship.

Year enacted: 1958

Full text: https://www.legislation.gov.au/Details/C1958A00062

Key Provisions

• Section 4: Object of the Act (regulate entry and stay, remove unlawful non-citizens)
• Part 2: Visas for non-citizens (application, grant, conditions)
• Section 116: Cancellation of visas (grounds for cancellation)
• Section 195A: Residence determinations (community detention)
• Part 2, Division 8: Fast track assessment for certain protection visa applicants
• Part 5: Merits review (Administrative Appeals Tribunal)
• Section 501: Refusal or cancellation of visa on character grounds
• Section 503: Character test (substantial criminal record, association with criminal conduct)

Significance

The Migration Act 1958 is the most complex and frequently amended statute in Australian law. The Act’s mandatory detention provisions have been the subject of significant domestic and international criticism. The ‘Pacific Solution’ (2001-2007) and its successor policies of offshore processing have generated extensive litigation and human rights concerns. Section 501 character provisions have resulted in the cancellation of visas for thousands of non-citizens with criminal records, including long-term residents who arrived as children. The Act’s complexity has generated a large body of judicial interpretation by the High Court and Federal Court.