Cambridge University Press
9780521714327- Migration and Refugee Law - Principles and Practice in Australia - by John Vrachnas
Frontmatter/Prelims

Migration and Refugee Law

Principles and Practice in Australia
Second Edition

Migration and Refugee Law: Principles and Practice in Australia 2nd Edition provides an overview of the legal principles governing the entry of people into Australia. The second edition encompasses legislative amendments and significant judicial decisions to 2007. It is an ideal companion to Migration and Refugee Law in Australia: Cases and Commentary (Cambridge University Press, 2007) – the casebook on this topic.

As well as dealing with migration and refugee law today, Migration and Refugee Law: Principles and Practice in Australia 2nd Edition analyses the policy and moral considerations underpinning this area of law. This is especially so in relation to refugee law, which is one of the most divisive social issues of our time. The book suggests proposals for change and how this area of law can be made more coherent and principled.

This book is written for all people who have an interest in migration and refugee law, including judicial officers, migration agents (and lawyers) and students.

John Vrachnas was a full-time member of the Refugee Review Tribunal for more than ten years and presently practises as a solicitor in Victoria. He also teaches migration law at Deakin University.

Kim Boyd is a lecturer at Deakin University. She was a full-time member of the Refugee Review Tribunal for five years and is a practising lawyer.

Mirko Bagaric is Professor of Law at Deakin University and a part-time member of the Refugee Review Tribunal and the Migration Review Tribunal.

Penny Dimopoulos is an immigration and refugee lawyer in private practice.

Migration and Refugee Law

Principles and Practice in Australia

Second Edition

John Vrachnas

Kim Boyd

Mirko Bagaric

Penny Dimopoulos

CAMBRIDGE UNIVERSITY PRESS

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Information on this title: www.cambridge.org/9780521714327

First edition published by Cambridge University Press 2005
Second edition published 2008

Printed in Australia by Ligare

A catalogue record for this publication is available from the British Library

National Library of Australia Cataloguing in Publication data

Migration and refugee law: principles and practice in Australia.
2nd ed.
Includes index.
ISBN 9780521714327 (pbk.).
1. Emigration and immigration law – Australia. 2. Asylum, Right of – Australia. I. Vrachnas, John.
342.94083
ISBN 978-0-521-71432-7

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	Table of cases page xiv
	Table of statuts xx
	Preface to the second edition xxii
	Acknowledgments xxvi

1	Historical context to migration	1
	1.1 Introduction 1
	1.2 Historical developments 2
	1.2.1 The period before 1778 2
	1.2.2 Early white settlement – the first wave 3
	1.2.3 The first colonial emigration programs 4
	1.2.4 The gold rushes and the second wave 4
	1.2.5 Self-government and the ‘White Australia’ policy 6
	1.2.6 After the gold rushes 7
	1.2.7 The Federation debates 8
	1.2.8 Federation and ‘White Australia’ legislation 9
	1.2.9 Empire-building – the post–World War I wave 10
	1.2.10 Post–World War II 11
	1.2.11 Dismantling the ‘White Australia’ policy 12
	1.3 The modern immigration debate 13
2	Immigration control: an overview 16
	2.1 Constitutional foundations 16
	2.2 The control model 21
	2.3 The advent of current migration legislation 21
	2.4 The amended Migration Act 1958 (Cth) and new Migration Regulations 22
3	Basic migration legislation and policy 24
	3.1 The legislative framework and relationship between the Act and Regulations 24
	3.1.1 Entry, stay and departure 25
	3.1.2 The nature of a visa 25
	3.1.3 Circumstances and conditions of visa grants 25
	3.1.4 Controlling the numbers 26
	3.2 The structure of the Migration Regulations 26
	3.3 Visa class/visa subclass 29
	3.4 Gazette notices 29
	3.5 Ministerial policy and departmental policies and procedures 29
	3.6 How to locate visa criteria 31
4	The visa system and application procedures 32
	4.1 Validity of visa applications 32
	4.2 Procedures for dealing with visa applications 37
	4.3 Restrictions on visa applications 38
	4.4 Family members 43
	4.5 Sponsorship and assurance of support 44
	4.5.1 Family sponsors and assurors 44
	4.5.2 Employer sponsors 45
	4.6 Special classes of person 46
	4.7 Third-party sources of decision-making power 47
	4.8 The DIAC decision-making process 47
	4.9 Evidencing the visa 50
5	Family and interdependency migration and other Australia-based visas 51
	5.1 Overview 51
	5.2 Sponsorship, assurances of support and bonds 53
	5.2.1 Sponsorship 53
	5.2.2 Assurances of support and bonds 54
	5.3 Spouse and Interdependency visas 55
	5.4 Other family visa categories 66
	5.4.1 Children 66
	5.4.1.1 Child (subclasses 101 and 802) 67
	5.4.1.2 Adoption (subclasses 102 and 802) 67
	5.4.1.3 Orphan relative (subclasses 117 and 837) 71
	5.4.2 Parents 72
	5.4.3 Aged dependent relatives (subclasses 114 and 838) 74
	5.4.4 Remaining relatives (subclasses 115 and 835) 74
	5.4.5 Carer (subclasses 116 and 836) 76
	5.4.6 Temporary visas for family members of Australian citizens or permanent residents, or eligible New Zealand citizens 80
6	Business and investment visas 82
	6.1 Overview 82
	6.2 Business visa classes and subclasses 83
	6.3 Sponsorship 84
	6.4 Spouses 85
	6.5 Onshore applications 85
	6.6 Documentation 86
	6.7 Common criteria and definitions 86
	6.7.1 Age 87
	6.7.2 Business skills points test 87
	6.7.3 English language skills 87
	6.7.4 Acceptable business activities 88
	6.7.5 Overall successful business career 88
	6.7.6 Ownership interest in a qualifying business 89
	6.7.7 Main business 92
	6.7.8 Turnover 94
	6.7.9 Genuine and realistic commitment 95
	6.8 Criteria specific to particular visa subclasses 95
	6.8.1 Investment visas (subclasses 162 and 165) 95
	6.8.2 Established business (residence) visas (subclasses 845 and 846) 97
	6.8.3 Business owner (provisional) subclass 163 98
	6.8.4 Business skills (provisional) subclasses 161 (senior executive (provisional)) and 164 (state/territory sponsored senior executive (provisional)) 98
	6.9 Public interest – health and character requirements 100
7	Skill-based visas 101
	7.1 Overview 101
	7.2 Visas based on qualifications and/or occupational skills 101
	7.2.1 Offshore 104
	7.2.2 Onshore 106
	7.3 Temporary visas 108
	7.4 Visas based on employer nominations 110
	7.4.1 The Employer nomination scheme (ENS) 110
	7.4.2 The regional sponsored migration scheme (RSMS) 112
	7.5 Labour agreements 113
	7.6 Distinguished talent 115
8	Temporary visas 117
	8.1 Overview 117
	8.2 Temporary workers 117
	8.2.1 Working Holiday (Temporary) (class TZ) 117
	8.2.2 Electronic Travel Authority (class UD) 118
	8.2.3 Temporary Business Entry (class UC) 119
	8.2.4 Short Stay Sponsored (Visitor) (Class UL) 122
	8.2.5 Medical Practitioner (Temporary) (class UE) 123
	8.2.6 Domestic Worker (Temporary) (class TG) 123
	8.3 Cultural/Social (Temporary) (class TE) 124
	8.4 Educational (Temporary) (class TH) 129
	8.5 Student visas 130
	8.5.1 Student (Temporary) (class TU) 131
	8.6 Other temporary visas 133
	8.6.1 Subclass 410 (Retirement) 133
	8.6.2 Medical Treatment (Visitor) (class UB) 134
9	Miscellaneous visas 136
	9.1 Citizenship 136
	9.2 Absorbed person visa 138
	9.3 Tourists 140
	9.4 Bridging visas 141
	9.5 Resident return 144
	9.6 Other Australia-based visas 146
	9.6.1 Special eligibility 146
	9.6.2 Confirmatory (Residence) visa 808 147
	9.7 Emergency visas 147
	9.8 Other special visa categories 149
10	Common visa requirements 150
	10.1 Overview 150
	10.2 Health 151
	10.3 Character 154
	10.4 Exclusion periods and re-entry bans 154
	10.5 Visa conditions 155
11	Compliance: unlawful non-citizens, removal and deportation 159
	11.1 Unlawful non-citizens: an overview 159
	11.2 Becoming unlawful 160
	11.2.1 Overstayers 160
	11.2.2 Entry without authority 160
	11.2.3 Cancellation of visas 161
	11.2.3.1 Cancellation because of inaccurate information 162
	11.2.3.2 General cancellation power 162
	11.2.3.3 Cancellation of business visa 163
	11.2.3.4 (Automatic) cancellation of student visas 164
	11.2.3.5 Cancellation on the basis of bad character 164
	11.3 Options for unlawful non-citizens 165
	11.4 Consequences of being unlawful: removal and deportation 167
	11.5 Offences that can be committed by unlawful non-citizens 169
12	History of the refugees convention and definitional framework 170
	12.1 History of the convention 170
	12.2 The four elements 174
	12.3 Protection not a key element: it is external not internal 174
13	Refugee and humanitarian visas: the statutory structure 176
	13.1 Overview 176
	13.2 Onshore applications 177
	13.3 Offshore applications 181
	13.4 General provisions 184
	13.4.1 Health 184
	13.4.2 Public interest 185
	13.4.3 National interest 186
14	Convention grounds 187
	14.1 Overview of grounds 187
	14.2 Race 189
	14.3 Nationality 191
	14.4 Religion 193
	14.5 Political opinion 197
	14.5.1 Political opinion generally interpreted broadly 198
	14.5.2 Political opinion must be known or imputed by the persecutor 199
	14.5.3 Political opinion need not be expressed 200
	14.5.4 What if the applicant can avoid coming to notice of authorities? 201
	14.5.5 Forms of political opinion 203
	14.6 Particular social group 204
	14.6.1 Formal test 204
	14.6.2 Difficulties in practical application of the test 206
	14.6.2.1 Infinite number of personal traits 206
	14.6.2.2 Group description is context sensitive 207
	14.6.2.3 Persecution and group selection 208
	14.6.2.4 The history of drafting the Convention is not a useful guide to identifying a particular social group 208
	14.6.2.5 In principle guidance can be sought from the humanitarian underpinning of the Convention 208
	14.6.2.6 A humanitarian approach supports an expansive definition of ‘particular social group’ 209
	14.6.2.7 Gaining insight into application by looking at previous paradigm examples of limited utility 210
	14.6.2.8 Matters that assist in identifying a particular social group 210
	14.6.2.9 Nonchalance and dispassion do not lead to differentiation 211
	14.6.3 How to spot a particular social group, applying the existing law – a summary 212
	14.6.4 Examples of particular social group claims 213
	14.6.5 Statutory change to family as a particular social group 214
15	Persecution 217
	15.1 Overview of persecution 217
	15.2 Overview of relevant statutory principles 218
	15.3 Serious harm 218
	15.3.1 Overview of legislation 218
	15.3.2 Case law prior to statutory changes 219
	15.3.3 Likely meaning to be given to serious harm: an examination of statute in light of case law 222
	15.3.3.1 Ample scope of divergent judicial interpretations of serious harm 222
	15.3.3.2 Towards a narrow meaning of serious harm 225
	15.3.3.3 Refugee realities – no appetite for uninvited arrivals 225
	15.3.3.4 The flourishing versus subsistence dichotomy 227
	15.4 Other elements of persecution: the nexus between the grounds and the serious harm 227
	15.4.1 Overview of nexus 227
	15.4.2 Nexus elements of discrimination, systematic conduct, motivation and causation 227
	15.4.2.1 Discrimination 227
	15.4.2.2 Element of motivation 228
	15.4.2.3 Systematic conduct 229
	15.4.2.4 Causation 230
	15.4.3 Prosecution and persecution distinction 231
	15.4.3.1 States have unlimited power to prosecute citizens 231
	15.4.3.2 Overlaps and tension: prosecution and persecution 233
	15.4.3.3 What is a law of general application? 235
	15.4.3.4 General laws not persecutory 235
	15.4.3.5 Selective enforcement of a law of general application 237
	15.4.3.6 The legitimate objective and appropriate and adapted test 237
	15.4.4 Unsatisfactory state of existing law regarding nexus elements 239
	15.4.5 A new unifying understanding: discrimination as the touchstone where persecution stems from the operation or application of a law 241
	15.4.5.1 The nature of discrimination 241
	15.4.5.2 Statement of the new test for the requisite nexus between the grounds and the harm 243
	15.4.5.3 The notion of a relevant difference 243
	15.4.5.4 The legitimate objective and appropriate and adapted test as a synonym for relevant difference 245
	15.4.6 A new test or unification of previous principles? 247
	15.4.7 Relevance of proposed test where persecutory conduct is not pursuant to legal standard 248
	15.4.8 Non-state agents: failure of state protection 249
	15.4.9 Personal responsibility to avoid persecution 250
16	Well-founded fear of persecution 252
	16.1 Overview 252
	16.2 The subjective element 252
	16.3 The objective element 253
	16.4 Fear must be objective and subjective 254
	16.5 The relevant time at which risk is assessed and relevance of past events and sur place claims 255
	16.6 Relocation 258
17	Limits on protection of refugees – cessation, exclusion exceptions and protection by another country 261
	17.1 Overview of exclusion, cessation and exceptions 261
	17.2 Cessation: article 1C 262
	17.2.1 Articles 1C(1)–(4) voluntary actions by refugee 263
	17.2.2 Articles 1C(5)–(6) changed country circumstances 264
	17.3 Article 1D 266
	17.4 Article 1E 267
	17.5 Article 1F 268
	17.5.1 Overview of article 1F 268
	17.5.2 Article 1F(a) – crimes against peace, war crimes, and crimes against humanity 268
	17.5.2.1 Crimes against peace 269
	17.5.2.2 War crimes 270
	17.5.2.3 Crimes against humanity 275
	17.5.3 Article 1F(b) – serious non-political crimes 276
	17.5.3.1 When is a crime serious? 277
	17.5.3.2 Meaning of (serious) non-political crime 278
	17.5.4 Article 1F(c): acts contrary to the purposes and principles of the United Nations 282
	17.5.5 Evidential issues and the scope of individual liability 284
	17.5.6 Analysis of Article 1F 286
	17.5.7 Expulsion: articles 32 and 33 288
	17.6 Country of reference and effective protection in another country 290
	17.7 Third country (or effective) protection 292
	17.7.1 Common law 293
	17.7.2 Statute 294
18	Time for a fundamental re-think: need as the criterion for assistance 297
	18.1 Overview: time to stop paying homage to the Convention and to fix it 297
	18.1.1 Refugee law – not humanitarian law – is the appropriate vehicle for change 298
	18.1.2 The implications of finite international compassion – proper targeting of refugees critical 299
	18.1.3 History of Convention inevitably resulted in flawed definition 301
	18.2 The problem with the Convention Grounds 302
	18.3 An alternative definition 303
	18.3.1 Universal moral standards should underpin the new definition 303
	18.3.1.1 Overview of moral theory 303
	18.3.1.2 New approach not contingent on acceptance of particular moral theory 304
	18.3.2 Deontological rights-based theories underpinning the new definition 304
	18.3.2.1 The influence of rights-based theories 304
	18.3.2.2 The absence of a foundation of rights 306
	18.3.2.3 Explanation for the appeal of rights-based theories 307
	18.3.3 Consequentialist underpinning to new definition – the preferred approach 308
	18.3.3.1 Interlude – criticisms of utilitarianism 309
	18.3.3.2 Horror scenarios not that bad 309
	18.3.3.3 Utilitarian rights 310
	18.3.4 Ramifications for a new definition 311
	18.3.4.1 Repeal of grounds 311
	18.3.4.2 Hierarchy of human interests – life and liberty as fundamental 312
	18.3.4.3 Where to draw the line? 312
	18.4 The preferred definition 313
	18.4.1 Proposed definition 313
	18.4.2 The concept of persecution is made (effectively) redundant 314
	18.5 Concluding remarks 315
	18.5.1 Practical obstacles to reform 315
	18.5.2 The proposed definition is not a complete solution 316
19	The determination and review process for migration and refugee decisions 318
	19.1 Merits review 318
	19.2 Decisions reviewable by the MRT, RRT and AAT 318
	19.3 Judicial review 319
	19.4 Original jurisdiction of the High Court 320
	19.5 Background to enactment of privative clause 320
	19.6 Privative clause 324
	19.7 Ministerial intervention 326
	19.8 Commentary on current state of judicial review of migration and refugee decisions 326

	Index 328

Table of cases

Abbreviations

MIEA Minister for Immigration and Ethnic Affairs

MILGEA Minister for Immigration, Local Government and Ethnic Affairs

MIMA Minister for Immigration and Multicultural Affairs

Cases

A v MIMA (1999), 289n.53

Abebe v Commonwealth (1999), 321

Ahmadi v MIMA (2001), 222n.11

Al Toubi v MIMA (2001), 293n.72

Al-Amidi v MIMA (2000), 260

Al-Anezi v MIMA (1999), 291

Al-Asam v MIMA (2001), 260n.24

Ali Shahabuddin v MIMA (2001), 36, 37

Alin v MIMA (2002), 63

Aliparo v MIMA (1999), 213n.88

Al-Rahal v MIMA (2001), 293n.72

Al-Zafiri v MIMA (1999), 295

Appellant S395/2002 v MIMA (2003), 194n.32, 202

Applicant A & Anor v MIEA (1997), 210n.85, 210n.87, 213n.89, 214n.90

Applicant A v MIEA (1997), 187, 191, 203, 204, 213, 213n.89, 220, 223–224, 227–228, 235, 238–239

Applicant C v MIMA (2001), 294n.75, 294n.77, 295

Applicant N403 of 2000 v MIMA (2000), 198–199

Applicant NABD/2002 v MIMA (2005), 194, 250n.88

Applicant S v MIMA (2004), 204–205, 206–207, 228, 237, 238

Argente v MIMA (2004), 33

Arquita v MIMA (2000), 284n.45

Auva’a, in the matter of an application for a Writ of Prohibition and Certiorari and Declaratory and Injunctive Relief against Vanstone, 40–41

Bagus v MIMA (1994), 75n.94

Baker v Campbell (1983), 258

Bal v MIMA (2002), 35–37

Bedlington v Chong (1997), 39n.20

Blanco-Lopez v INS (9th Cir., 1988) 234n.50

Bretag v MILGEA (1991), 59

British Rail Board v Pickin (1974), 232n.38, 231–234

Bui v MIMA (1999), 152

Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs (2003), 65

Calado v MIMA (1997), 189–190, 192

Cameirao v MIMA (2000), 194n.33

Canada (Attorney-General) v Ward (1993), 175, 198n.47

Canwan Coals Pty Ltd v FCT (1974), 223n.16

Cardenas v MIMA (2001), 121n.39

Castlemaine Tooheys Ltd v South Australia (1990), 241n.65, 242, 246n.78

Cerff, Stephen Cyril (2003), 64–65

Chan Yee Kin v MIEA (1989), 189n.12, 199, 219, 220–222, 252, 253, 253n.7, 254, 255, 255n.12, 263n.1

Chen Shi Hai v MIMA (2000), 229, 230–231, 235, 238, 246, 255n.10

Cheung v Minister for Immigration & Multicultural & Indigenous Affairs (2005), 85n.24

Cheung v MRT (2004), 91n.63

Church of the New Faith v The Commissioner of Pay-Roll Tax (Victoria) (1983), 193n.24, 232

Commonwealth v Baume (1905), 223n.17

Commonwealth v Tasmania (1983), 190, 224n.18

Dhayakpa v MIEA (1995), 276–277, 278n.29

Doan v MIMA (2000), 62

Drake v MIEA (No.2) (1979), 30n.21

Du v MIMA (2000), 62–63

EC v Minister for Immigration & Multicultural & Indigenous Affairs (2004), 69–70, 71

El Ess v Minister for Immigration & Multicultural & Indigenous Affairs (2004), 30–31, 157–158

Esso Australia Resources Limited v The Commissioner of Taxation (1999), 258

Fathi-Rad v Canada (Secretary of State) (1994), 196

Gunaseelan v MIMA (1997), 222n.10

Harry Tjandra aka Jimmy Yek v MIEA (1996), 138n.14

Hernandez-Montiel v INS (9th Cir., 2000) 234n.50

Horvath v Secretary of State for the Home Department (UK) (2001), 175

Hossain v MIMIA (2007), 143n.34

Ibrahim v Minister for Immigration & Multicultural & Indigenous Affairs (2002), 33, 63–64

Inderjit Singh v MIMA (2001), 319

Islam (A.P.) v. Secretary of State for the Home Department, Regina v. Immigration Appeal Tribunal and Another Ex Parte Shah (UK) (1999), 210n.84

Issa v MIMA (2000), 77

IW v City of Perth (1997), 241n.64, 241n.66, 248

Jahazi v MIEA (1995), 230n.36

Johnson v Minister for Immigration & Multicultural & Indigenous Affairs (2004), 138–139

Juan Alejandro Araya Heredio (Canada) (1977), 200

Kenny v MILGEA (1993), 19

Lama v MIMA (1999), 195, 235

Leung v MIMA (2001), 291

Li v MIMA (2000), 36

Lin v Minister for Immigration & Multicultural & Indigenous Affairs (2004), 77–80

Lobo v Minister for Immigration & Multicultural & Indigenous Affairs (2003), 93

Maddalozzo v Maddick (1992), 223n.17

Mandla v Dowell Lee [1983], 190n.14

Maria Macabenta v Minister of State for Immigration & Multicultural Affairs (1998), 193n.21

Marina Galvis de Cardona (Canada) (1979), 201

Masuoka v Immigration Review Tribunal (1996), 111n.95

Mauricio Esteban Lemoine Guajardo v Minister of Employment and Immigration (Canada) (1981), 201

Meroka v MIMA (2002), 63–64

MIEA v Guo & Anor (1997), 174, 199, 220, 254, 255

MIEA v Pochi (1980), 59

MIEA v Wu Shan Liang & Ors (1996), 252n.3

MILGEA v Dhillon (1990), 58

MILGEA v Gray (1994), 30

MIMA v Y (1998), 198

MIMA v ‘A’ (1999), 34, 36, 39

MIMA v Al-Sallal (1999), 295

MIMA v Asif (2000), 60

MIMA v Darboy (1998), 195n.36, 232

MIMA v Eshetu (1999), 321

MIMA v Farahanipour (2001), 258n.17

MIMA v Gnanapiragasam (1998), 293n.68

MIMA v Ibrahim (2000), 187–188, 220, 229, 243n.72

MIMA v Kandasamy (2000), 174n.23

MIMA v Khawar (2002), 207, 210n.84, 249

MIMA v Kundu (2000), 35

MIMA v Li (2000), 35

MIMA v Respondents S152/2003 (2004), 174–175, 249–250

MIMA v Savvin (2000), 170n.1

MIMA v SGLB (2004), 324n.30

MIMA v Singh (2002), 282n.37

MIMA v Thiyagarajah (1998), 267n.9, 293, 295

MIMA v VBAQ of, 2002 (2004) 222n.12

MIMA v VWBA (2005), 194n.33

MIMA v WABQ (2002), 266–267

MIMA v VBAOQ of, 2002 (2004) 219

MIMA v Yusuf (2001), 322, 323n.25

MIMIA v Hidalgo (2005), 75n.94

Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986), 30, 156

Minister for Immigration & Multicultural & Indigenous Affairs v Godley (2005), 165n.25

Minister for Immigration & Multicultural & Indigenous Affairs v Kord (2002), 219–220

Minister for Immigration & Multicultural & Indigenous Affairs v Nystrom (2006), 20

Minister for Immigration & Multicultural & Indigenous Affairs v QAAH of, 2004 (2004) 264–266

MMM v MIMA (1998), 195n.36

Moller v MIMA (2007), 45n.29, 121n.35

Montes-Granados v MIMA (2000), 260n.24

Murugasu......... 229

N01/04446 (2004) 153

N1045/00 A v MIMA (2002), 294n.75

NAEN v Minister for Immigration & Multicultural & Indigenous Affairs (2003), 293n.73

NAES v MIMA (2004), 253n.6

NAEU v MIMA (2002), 199

Nagalingam v MILGEA & Anor (1992), 267n.9

NAGV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002), 295, 296n.79

Naidu v MIMA (2000), 156

Namitabar v Canada (1994), 196

Nassif v Minister for Immigration & Multicultural & Indigenous Affairs (2003), 93n.72

Nassouh v MIMA (2000), 61

NBGM v MIMA (2006), 296n.79

Nguyen v MIMA (2001), 42, 157

Nolan v MIEA (1988), 19

Ovcharuk v MIMA (1998), 277, 278, 282n.37, 288n.52

Patto v MIMA (2000), 292n.62, 293

Perampalam v MIMA (1999), 259n.22

Petty and Maiden v The Queen (1991), 201

Plaintiff S157/2002 v Commonwealth of Australia (2003), 23, 223n.14

Pochi v MacPhee (1982), 18–19

Prashar v MIMA (2001), 194n.33

Pushpanathan v Canada (Minister of Citizenship and Immigration) (1998), 283

R v Cahill (1978), 57n.25, 58

R v Home Secretary; Ex parte Sivakumaran (1988), 253, 255

R v Immigration Appeal Tribunal; Ex parte Shah (1999), 231

R v Macfarlane; Ex parte O’Flanagan and O’Kelly (1923), 2n.3

Rafiq v Minister for Immigration & Multicultural & Indigenous Affairs (2004), 77

Rajendran; MIMA v Gnanapiragasam (1998), 295

Rajendran v MIMA (1998), 267n.9

Ram v MIEA (1995), 205, 206, 210n.86, 228

Ramirez-Rivas v INS (9th Cir., 1990) 234n.50

Randhawa v MILGEA (1994), 259

Re MIMA & Anor: ex parte Miah, 38, 325

Re MIMA; Ex parte Applicant S20/2002 (2003), 325

Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002), 20

Re Patterson; Ex parte Taylor (2001), 16n.1, 19n.7

Rezaei v MIMA (2001), 263n.4

Robinson v MIMIA (2005), 153

Robtelmes v Brenan (1906), 16–18

Roguinski v MIMA (2001), 229

Rohner v MIEA (1997), 53n.3

Rohner v MIMA (1998), 53n.4

S157/2002 v Commonwealth (2003), 324

S395/2002 v MIMA (2003), 239n.62, 250

SAAS v MIMA (2002), 257n.16

Saliba v MIMA (1998), 198n.47

Sam, Sophy (2004), 68–69

Scargill v Minister for Immigration & Multicultural & Indigenous Affairs (2003), 75n.94, 76n.95

Schaap v MIMA (2000), 156

SDAQ v Minister for Immigration & Multicultural & Indigenous Affairs (2003), 254n.9

Secretary of State for the Home Department v K: Fornah v Secretary of State for the Home Department (UK) [2006], 207n.82

SGKB v Minister for Immigration & Multicultural & Indigenous Affairs (2003), 254

Shao v Minister for Immigration & Multicultural & Indigenous Affairs (2005), 45n.29

Shaw v MIMA (2003), 19n.7, 19n.9

Sheritt Gordon Mines Ltd v FCT (1976), 222n.13

Simpson v MIEA (1994), 58–59

Singh v Commonwealth of Australia (2004), 19n.9

Singh v MIMA (2002), 280–281

SKFB v MIMA (2004), 259

Soegianto v MIMA (2001), 30

Sok v Minister for Immigration & Multicultural & Indigenous Affairs (2005), 65

Somaghi v MILGEA (1991), 258n.18

SRYY v Minister for Immigration & Multicultural & Indigenous Affairs (2005), 269n.13, 270n.16, 284n.45

STCB v MIMA (2006), 216

Street v Queensland Bar Association (1989), 241, 242–243

SZAZX v Minister for Immigration (2004), 259

SZCCZ v MIMA [2006], 143n.34

SZITR v MIMA (2006), 269n.13

T v Secretary of State for the Home Department (UK) (1996), 281–282

Taiem v MIMA (2001), 291

Tarasovski & Ors v MILGEA (1993), 162n.22

Terera v Minister for Immigration and Multicultural and Indigenous Affairs (2003), 41–43, 155–157

Thalary v MIEA (1997), 196n.41, 222n.10

Tharmalingen v MIEA (1998), 197

Thiyagarajah v MIMA (1997), 292n.62, 292n.63, 293

Thongpraphai v MIMA (2000), 41, 42, 156

Tjhe Kwet Koe v MIEA & Anor (1997), 290

V v MIEA (1999), 198

V v MIMA (1999), 200n.53

V856/00 A v MIMA (2001), 292n.65

V872/00 A v MIMA (2001), 293n.71

VBAO v MIMA (2006), 218n.6

VHAF v MIMA (2002), 320n.8

VTAG v Minister for Immigration, Multicultural & Indigenous Affairs (2004), 253n.7

VWYJ v Minister for Immigration & Multicultural & Indigenous Affairs (2006), 284n.46

W221/01 A v MIMA (2002), 256n.13

WAGH v Minister for Immigration & Multicultural & Indigenous Affairs (2003), 294n.76

Wai Che Lee (Canada), 201n.57

Wang v MIMA (2000), 193, 195

Weheliye v MIMA (2001), 235n.51

Welivita v MIEA (1996), 197

Wolseley v MIMA (2006), 116n.132

Wu v MIEA (1996), 36

Xie v MIMA (2000), 30

Ye Hong v MIMA (1998), 203, 203n.69

Yilmaz v MIMA (2000), 34–35

Yu v Minister for Immigration & Multicultural & Indigenous Affairs (2004), 89n.51

Z v MIMA (1998), 195n.36

Zanaj v MIMA (2000), 37

Table of statutes

Acts Interpretation Act, 1901 34, 36, 224

Administrative Decisions (Judicial Review) Act 1977 (AJDR Act), 21, 22, 320

Audit Act, 1901 168n.35

Australian Citizenship Act, 1948 18–19, 136n.1

Australian Citizenship Act, 2007 136–137

Australian Colonies Act, 1850 (Imp) 6

Australian Security Intelligence Organisation Act, 1979 116

Chinese Immigration Act, 1855 (Vic) 6n.13

Contract Immigrants Act, 1905 10

Crimes (Aviation) Act 1991, 279

Crimes (Internationally Protected Persons) Act, 1976 279

Crimes (Ships and Fixed Platforms) Act, 1992 279

Education Services for Overseas Students (ESOS) Act, 2000 131

Equal Opportunity Act, 1984 (WA) 248–249

Extradition Act, 1988 149n.74, 278, 280, 282

Genocide Convention Act, 1949 279

Immigration Restriction Act, 1901 9, 10, 12

International Criminal Court Act, 2002 149n.74

International Organisations (Privileges and Immunities) Act, 1963 120

International War Crimes Tribunals Act, 1995 149n.74

Judiciary Act, 1903 22

Marriage Act, 1961 53n.2, 53–54, 57, 58

Migration Act, 1958, 12, 13, 18–19, 20, 21, 22–23, 24–26, 32, 34, 35, 37, 38, 39, 57–62, 81, 85n.27, 89n.51, 107n.63, 137, 138, 141, 149, 149n.72–73, 75, 151n.3, 154, 157, 159–160, 160n.10–11, 161–163, 164–165, 164n.24, 166–168, 176, 177–181, 181n.40, 184, 184n.60, 188, 214–216, 218, 222, 229, 231, 249, 257–258, 264, 278, 280n.35, 288–289, 290, 292, 294–296, 315n.60, 318, 319, 320, 326

Migration Amendment Act, 1983 19, 138

Migration Legislation Amendment Act (No, 6) 2001 188n.7, 189, 214, 258n.17, 280n.33

Migration Legislation Amendment (Judicial Review) Act, 2001 324n.27

Migration Legislation Amendment (Procedural Fairness) Act, 2002 49, 325

Migration Reform Act, 1992 22, 320–325

Mutual Assistance in Criminal Matters Act, 1987 149n.74

Overseas Missions (Privileges and Immunities) Act, 1995 120

Pacific Islanders Labourer’s Act, 1901 9, 16–18

Post and Telegraph Act, 1901 10

Sentencing Amendment Act (No, 3) 2001 (NT) 232n.41

Sex Discrimination Act, 1984 53

Social Security Act, 1991 46, 74, 76

Preface to the second edition

A defining aspect of national sovereignty is that nation states have the right to determine which people are permitted to come within their geographical borders. Individuals, like nations, appear to be inherently territorial. In addition to this, a defining aspect of many people's personhood (their core identity) is the place where they were born or live.

Despite the disparate range of interests and projects that individuals have and pursue, there are basic goals that communities invariably share. Thus, in Australia, the current generation (building on the work of earlier generations) has committed enormous resources to building state institutions (such as our political and legal system), hospitals, schools, roads and recreational and sporting amenities and facilities.

These common projects serve to entrench our feeling of community. We also come to share some fundamental values and beliefs.

Immigration policy and law is concerned with setting the parameters by which `foreigners' (or `aliens' as they are called in the Commonwealth Constitution) come to share our community, enjoy our resources and become exposed to our culture and values, whether permanently or for a shorter period. It is, thus, inherently controversial. Limits seemingly need to be placed on the numbers and types of people who can come to Australia.

This book examines the way in which Australia currently responds to this challenge. It is divided into two main sections. The first eleven chapters examine migration law. The next seven chapters look at refugee law. The dichotomy between migration and refugee law is non-existent at a formal level. Refugee law and policy is in fact one branch of migration law. It involves three among over 150 available visas. Chapter 19 outlines the scope for `merits review' and judicial review of decisions made in relation to migration or refugee visas.

However, substantively, there is a fundamental distinction between migration and refugee law. Migration law and policy is in essence concerned with what migrants can do for Australia. The principal objective in framing migration law is to let in people who will contribute something tangible to Australia. Australia seeks to attract people who will make the community richer or smarter.

Refugee law is the main exception to this principle. It focuses on what we as a community can do for a person fleeing serious harm, rather than what he or she has to offer us as a nation. Refugees make a significant contribution to the country, but this is an incidental outcome of refugee policy.

The differences between migration and refugee law are also to some extent reflected in the development and state of the law. Migration legislation is regulation-driven, and is highly fluid and constantly changing. Refugee law, though far less voluminous in terms of legislation, is imbued with many conflicting principles and interests.

The authors have incorporated into this second edition the numerous and significant changes to migration legislation and policy as well as important developments in migration and refugee case law that have occurred since the publication of the first edition in 2005.

The chapters dealing with migration law provide a detailed analysis of the major legislative provisions relating to the most widely utilised visa categories. The structure of these chapters reflects the fact that migration law is predominantly contained in regulations. Each visa category has numerous legal criteria, but invariably has a `signature' criterion (such as having a spouse for a spouse visa). This book does not look at all visa categories or at all criteria for the visa classes it does consider. While it focuses on the signature criteria, it does so with the caveat that the failure to meet any of the other criteria can prove fatal to a visa application.

Refugee law is derived from the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (the Refugees Convention). Article 1A(2) of the Refugees Convention defines a refugee as a person who:

ֽֽֽowing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

At the heart of this definition are the concepts of fear and persecution. Despite the apparent simplicity of these concepts, the interpretation of Article 1A(2) has proven to be fertile ground for legal and judicial analysis. Refugee law is littered with controversy regarding the meaning and scope of key terms in the definition, due in no small part to the history of the drafting of the Refugees Convention, and to the absence of a coherent doctrinal rationale underpinning it.

The chapters on refugee law provide an overview of existing legal principles in relation to the more unsettled areas of law (such as how persecution is defined) and suggest a way in which the law can be made more coherent and workable.

Chapter 18 analyses the fundamental failings of the Convention and suggests a more appropriate definition of a refugee.

This book is essentially concerned with the principles governing the manner in which non-citizens come to gain lawful access to Australia. The focus is not on how people come to lose this status or the legal process in which migration and refugee status is determined. This last area involves the entire ambit of administrative law and is another fertile source of jurisprudence. A treatment of this is beyond the scope of this book. However, for the sake of completeness, we provide an overview of these areas in chapters 11 and 19 respectively.

Acknowledgments

Excerpts from parts of chapters 15 and 18 have been published elsewhere. Such sections as are reprinted, are done so by permission. In this regard we are very grateful for the permissions granted by the following journals:

The Bond Law Review: Mirko Bagaric & Penny Dimopoulos, ‘The shifting meaning of persecution in Australian refugee law: how much must one suffer to be deserving of asylum?’, (2003) 15 The Bond Law Review, 284–302.

The Canterbury Law Review: Mirko Bagaric & Penny Dimopoulos, ‘Refugee law: time for a fundamental re-think – need as the criterion for assistance’, (2003) 9 The Canterbury Law Review (NZ), 268–293.

The International Journal of the Sociology of Law: Mirko Bagaric & Penny Dimopoulos, ‘Discrimination as the touchstone of persecution in refugee law’, (2004) 32 The International Journal of the Sociology of Law, 310–334.

The authors’ knowledge of Refugee Law has been greatly assisted by their training and experience at the Refugee Review Tribunal and in particular to the excellent publication by S. Haddad et al., A Guide to Refugee Law in Australia (RRT).

We also thank M. Saunders, S. Mullins and J. Gryle for allowing us to source and use extracts from the excellent online course: ‘In Search of Australia: Historical Perspectives’, developed for the Central Queensland University. This assisted us greatly in the writing of chapter 1.

Readers will note that the case citations in the book do not accord with those found in the various hard copy law reports. For reasons of expense and accessibility to readers, references to all cases which can be accessed on a free database are as per the citation in the electronic database. In relation to these cases, readers are referred to the Australasian Legal Information Institute database (a joint facility of UTS and UNSW Faculties of Law) at <www: austlii.edu.au>.