Migration and Refugee Lawassets.cambridge.org/97805217/14327/frontmatter/...7.4 Visas based on employer nominations 110 7.4.1 The Employer nomination scheme (ENS) 110 7.4.2 The regional

Migration and Refugee LawPrinciples and Practice in AustraliaSecond Edition

Migration and Refugee Law: Principles and Practice in Australia 2nd Editionprovides an overview of the legal principles governing the entry of people intoAustralia. The second edition encompasses legislative amendments and signifi-cant judicial decisions to 2007. It is an ideal companion to Migration and RefugeeLaw 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 RefugeeLaw: Principles and Practice in Australia 2nd Edition analyses the policy and moralconsiderations underpinning this area of law. This is especially so in relationto refugee law, which is one of the most divisive social issues of our time. Thebook suggests proposals for change and how this area of law can be made morecoherent and principled.

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

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

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

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

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

© Cambridge University Press www.cambridge.org

Cambridge University Press978-0-521-71432-7 - Migration and Refugee Law: Principles and Practice in Australia, Second EditionJohn Vrachnas, Kim Boyd, Mirko Bagaric and Penny DimopoulosFrontmatterMore information

http://www.cambridge.org/052171432X

http://www.cambridge.org


Migration and RefugeeLaw

Principles and Practice in Australia

Second Edition

John Vrachnas

Kim Boyd

Mirko Bagaric

Penny Dimopoulos






cambr idge university pr essCambridge, New York, Melbourne, Madrid, Cape Town, Singapore, Sao Paulo

Cambridge University Press477 Williamstown Road, Port Melbourne, VIC 3207, Australia

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c© John Vrachnas, Kim Boyd, Mirko Bagaric, Penny Dimopoulos 2008

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

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

National Library of Australia Cataloguing in Publication dataMigration 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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Contents

Table of cases page xivTable of statutes xxPreface to the second edition xxiiAcknowledgments xxvi

1 Historical context to migration 11.1 Introduction 11.2 Historical developments 2

1.2.1 The period before 1778 21.2.2 Early white settlement – the first wave 31.2.3 The first colonial emigration programs 41.2.4 The gold rushes and the second wave 41.2.5 Self-government and the ‘White Australia’ policy 61.2.6 After the gold rushes 71.2.7 The Federation debates 81.2.8 Federation and ‘White Australia’ legislation 91.2.9 Empire-building – the post–World War I wave 101.2.10 Post–World War II 111.2.11 Dismantling the ‘White Australia’ policy 12

1.3 The modern immigration debate 13

2 Immigration control: an overview 162.1 Constitutional foundations 162.2 The control model 212.3 The advent of current migration legislation 212.4 The amended Migration Act 1958 (Cth) and new Migration

Regulations 22

3 Basic migration legislation and policy 243.1 The legislative framework and relationship between the

Act and Regulations 243.1.1 Entry, stay and departure 253.1.2 The nature of a visa 253.1.3 Circumstances and conditions of visa grants 253.1.4 Controlling the numbers 26

3.2 The structure of the Migration Regulations 263.3 Visa class/visa subclass 293.4 Gazette notices 29

v






vi CONTENTS

3.5 Ministerial policy and departmental policies and procedures 293.6 How to locate visa criteria 31

4 The visa system and application procedures 324.1 Validity of visa applications 324.2 Procedures for dealing with visa applications 374.3 Restrictions on visa applications 384.4 Family members 434.5 Sponsorship and assurance of support 44

4.5.1 Family sponsors and assurors 444.5.2 Employer sponsors 45

4.6 Special classes of person 464.7 Third-party sources of decision-making power 474.8 The DIAC decision-making process 474.9 Evidencing the visa 50

5 Family and interdependency migration and otherAustralia-based visas 515.1 Overview 515.2 Sponsorship, assurances of support and bonds 53

5.2.1 Sponsorship 535.2.2 Assurances of support and bonds 54

5.3 Spouse and Interdependency visas 555.4 Other family visa categories 66

5.4.1 Children 665.4.1.1 Child (subclasses 101 and 802) 675.4.1.2 Adoption (subclasses 102 and 802) 675.4.1.3 Orphan relative (subclasses 117 and 837) 71

5.4.2 Parents 725.4.3 Aged dependent relatives (subclasses 114 and 838) 745.4.4 Remaining relatives (subclasses 115 and 835) 745.4.5 Carer (subclasses 116 and 836) 765.4.6 Temporary visas for family members of Australian citizens or

permanent residents, or eligible New Zealand citizens 80

6 Business and investment visas 826.1 Overview 826.2 Business visa classes and subclasses 836.3 Sponsorship 846.4 Spouses 856.5 Onshore applications 856.6 Documentation 866.7 Common criteria and definitions 86

6.7.1 Age 876.7.2 Business skills points test 876.7.3 English language skills 876.7.4 Acceptable business activities 886.7.5 Overall successful business career 88






CONTENTS vii

6.7.6 Ownership interest in a qualifying business 896.7.7 Main business 926.7.8 Turnover 946.7.9 Genuine and realistic commitment 95

6.8 Criteria specific to particular visa subclasses 956.8.1 Investment visas (subclasses 162 and 165) 956.8.2 Established business (residence) visas (subclasses 845

and 846) 976.8.3 Business owner (provisional) subclass 163 986.8.4 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 1017.1 Overview 1017.2 Visas based on qualifications and/or occupational skills 101

7.2.1 Offshore 1047.2.2 Onshore 106

7.3 Temporary visas 1087.4 Visas based on employer nominations 110

7.4.1 The Employer nomination scheme (ENS) 1107.4.2 The regional sponsored migration scheme (RSMS) 112

7.5 Labour agreements 1137.6 Distinguished talent 115

8 Temporary visas 1178.1 Overview 1178.2 Temporary workers 117

8.2.1 Working Holiday (Temporary) (class TZ) 1178.2.2 Electronic Travel Authority (class UD) 1188.2.3 Temporary Business Entry (class UC) 1198.2.4 Short Stay Sponsored (Visitor) (Class UL) 1228.2.5 Medical Practitioner (Temporary) (class UE) 1238.2.6 Domestic Worker (Temporary) (class TG) 123

8.3 Cultural/Social (Temporary) (class TE) 1248.4 Educational (Temporary) (class TH) 1298.5 Student visas 130

8.5.1 Student (Temporary) (class TU) 1318.6 Other temporary visas 133

8.6.1 Subclass 410 (Retirement) 1338.6.2 Medical Treatment (Visitor) (class UB) 134

9 Miscellaneous visas 1369.1 Citizenship 1369.2 Absorbed person visa 1389.3 Tourists 1409.4 Bridging visas 1419.5 Resident return 144






viii CONTENTS

9.6 Other Australia-based visas 1469.6.1 Special eligibility 1469.6.2 Confirmatory (Residence) visa 808 147

9.7 Emergency visas 1479.8 Other special visa categories 149

10 Common visa requirements 15010.1 Overview 15010.2 Health 15110.3 Character 15410.4 Exclusion periods and re-entry bans 15410.5 Visa conditions 155

11 Compliance: unlawful non-citizens, removal and deportation 15911.1 Unlawful non-citizens: an overview 15911.2 Becoming unlawful 160

11.2.1 Overstayers 16011.2.2 Entry without authority 16011.2.3 Cancellation of visas 161

11.2.3.1 Cancellation because of inaccurateinformation 162

11.2.3.2 General cancellation power 16211.2.3.3 Cancellation of business visa 16311.2.3.4 (Automatic) cancellation of student visas 16411.2.3.5 Cancellation on the basis of bad character 164

11.3 Options for unlawful non-citizens 16511.4 Consequences of being unlawful: removal and deportation 16711.5 Offences that can be committed by unlawful non-citizens 169

12 History of the refugees convention and definitional framework 17012.1 History of the convention 17012.2 The four elements 17412.3 Protection not a key element: it is external not internal 174

13 Refugee and humanitarian visas: the statutory structure 17613.1 Overview 17613.2 Onshore applications 17713.3 Offshore applications 18113.4 General provisions 184

13.4.1 Health 18413.4.2 Public interest 18513.4.3 National interest 186

14 Convention grounds 18714.1 Overview of grounds 18714.2 Race 18914.3 Nationality 19114.4 Religion 19314.5 Political opinion 197






CONTENTS ix

14.5.1 Political opinion generally interpreted broadly 19814.5.2 Political opinion must be known or imputed by the persecutor 19914.5.3 Political opinion need not be expressed 20014.5.4 What if the applicant can avoid coming to notice of authorities? 20114.5.5 Forms of political opinion 203

14.6 Particular social group 20414.6.1 Formal test 20414.6.2 Difficulties in practical application of the test 206

14.6.2.1 Infinite number of personal traits 20614.6.2.2 Group description is context sensitive 20714.6.2.3 Persecution and group selection 20814.6.2.4 The history of drafting the Convention is not a useful guide

to identifying a particular social group 20814.6.2.5 In principle guidance can be sought from the humanitarian

underpinning of the Convention 20814.6.2.6 A humanitarian approach supports an expansive definition

of ‘particular social group’ 20914.6.2.7 Gaining insight into application by looking at previous

paradigm examples of limited utility 21014.6.2.8 Matters that assist in identifying a particular social

group 21014.6.2.9 Nonchalance and dispassion do not lead to

differentiation 21114.6.3 How to spot a particular social group, applying the existing

law – a summary 21214.6.4 Examples of particular social group claims 21314.6.5 Statutory change to family as a particular social group 214

15 Persecution 21715.1 Overview of persecution 21715.2 Overview of relevant statutory principles 21815.3 Serious harm 218

15.3.1 Overview of legislation 21815.3.2 Case law prior to statutory changes 21915.3.3 Likely meaning to be given to serious harm: an examination of

statute in light of case law 22215.3.3.1 Ample scope of divergent judicial interpretations

of serious harm 22215.3.3.2 Towards a narrow meaning of serious harm 22515.3.3.3 Refugee realities – no appetite for uninvited

arrivals 22515.3.3.4 The flourishing versus subsistence dichotomy 227

15.4 Other elements of persecution: the nexus between the grounds andthe serious harm 22715.4.1 Overview of nexus 22715.4.2 Nexus elements of discrimination, systematic conduct, motivation

and causation 22715.4.2.1 Discrimination 22715.4.2.2 Element of motivation 228






x CONTENTS

15.4.2.3 Systematic conduct 22915.4.2.4 Causation 230

15.4.3 Prosecution and persecution distinction 23115.4.3.1 States have unlimited power to prosecute citizens 23115.4.3.2 Overlaps and tension: prosecution and persecution 23315.4.3.3 What is a law of general application? 23515.4.3.4 General laws not persecutory 23515.4.3.5 Selective enforcement of a law of general

application 23715.4.3.6 The legitimate objective and appropriate and

adapted test 23715.4.4 Unsatisfactory state of existing law regarding nexus elements 23915.4.5 A new unifying understanding: discrimination as the touchstone

where persecution stems from the operation or applicationof a law 24115.4.5.1 The nature of discrimination 24115.4.5.2 Statement of the new test for the requisite nexus between

the grounds and the harm 24315.4.5.3 The notion of a relevant difference 24315.4.5.4 The legitimate objective and appropriate and adapted test

as a synonym for relevant difference 24515.4.6 A new test or unification of previous principles? 24715.4.7 Relevance of proposed test where persecutory conduct is not

pursuant to legal standard 24815.4.8 Non-state agents: failure of state protection 24915.4.9 Personal responsibility to avoid persecution 250

16 Well-founded fear of persecution 25216.1 Overview 25216.2 The subjective element 25216.3 The objective element 25316.4 Fear must be objective and subjective 25416.5 The relevant time at which risk is assessed and relevance of past

events and sur place claims 25516.6 Relocation 258

17 Limits on protection of refugees – cessation, exclusion exceptions andprotection by another country 26117.1 Overview of exclusion, cessation and exceptions 26117.2 Cessation: article 1C 262

17.2.1 Articles 1C(1)–(4) voluntary actions by refugee 26317.2.2 Articles 1C(5)–(6) changed country circumstances 264

17.3 Article 1D 26617.4 Article 1E 26717.5 Article 1F 268

17.5.1 Overview of article 1F 26817.5.2 Article 1F(a) – crimes against peace, war crimes, and crimes against

humanity 26817.5.2.1 Crimes against peace 269






CONTENTS xi

17.5.2.2 War crimes 27017.5.2.3 Crimes against humanity 275

17.5.3 Article 1F(b) – serious non-political crimes 27617.5.3.1 When is a crime serious? 27717.5.3.2 Meaning of (serious) non-political crime 278

17.5.4 Article 1F(c): acts contrary to the purposes and principles of theUnited Nations 282

17.5.5 Evidential issues and the scope of individual liability 28417.5.6 Analysis of Article 1F 28617.5.7 Expulsion: articles 32 and 33 288

17.6 Country of reference and effective protection in anothercountry 290

17.7 Third country (or effective) protection 29217.7.1 Common law 29317.7.2 Statute 294

18 Time for a fundamental re-think: need as the criterionfor assistance 29718.1 Overview: time to stop paying homage to the Convention and

to fix it 29718.1.1 Refugee law – not humanitarian law – is the appropriate

vehicle for change 29818.1.2 The implications of finite international compassion – proper

targeting of refugees critical 29918.1.3 History of Convention inevitably resulted in flawed definition 301

18.2 The problem with the Convention Grounds 30218.3 An alternative definition 303

18.3.1 Universal moral standards should underpin the new definition 30318.3.1.1 Overview of moral theory 30318.3.1.2 New approach not contingent on acceptance of particular

moral theory 30418.3.2 Deontological rights-based theories underpinning the

new definition 30418.3.2.1 The influence of rights-based theories 30418.3.2.2 The absence of a foundation of rights 30618.3.2.3 Explanation for the appeal of rights-based theories 307

18.3.3 Consequentialist underpinning to new definition – thepreferred approach 30818.3.3.1 Interlude – criticisms of utilitarianism 30918.3.3.2 Horror scenarios not that bad 30918.3.3.3 Utilitarian rights 310

18.3.4 Ramifications for a new definition 31118.3.4.1 Repeal of grounds 31118.3.4.2 Hierarchy of human interests – life and liberty as

fundamental 31218.3.4.3 Where to draw the line? 312

18.4 The preferred definition 31318.4.1 Proposed definition 31318.4.2 The concept of persecution is made (effectively) redundant 314






xii CONTENTS

18.5 Concluding remarks 31518.5.1 Practical obstacles to reform 31518.5.2 The proposed definition is not a complete solution 316

19 The determination and review process for migration andrefugee decisions 31819.1 Merits review 31819.2 Decisions reviewable by the MRT, RRT and AAT 31819.3 Judicial review 31919.4 Original jurisdiction of the High Court 32019.5 Background to enactment of privative clause 32019.6 Privative clause 32419.7 Ministerial intervention 32619.8 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 AffairsMILGEA Minister for Immigration, Local Government and Ethnic AffairsMIMA Minister for Immigration and Multicultural Affairs

Cases

A v MIMA (1999), 289n.53Abebe v Commonwealth (1999), 321Ahmadi v MIMA (2001), 222n.11Al Toubi v MIMA (2001), 293n.72Al-Amidi v MIMA (2000), 260Al-Anezi v MIMA (1999), 291Al-Asam v MIMA (2001), 260n.24Ali Shahabuddin v MIMA (2001), 36, 37Alin v MIMA (2002), 63Aliparo v MIMA (1999), 213n.88Al-Rahal v MIMA (2001), 293n.72Al-Zafiri v MIMA (1999), 295Appellant S395/2002 v MIMA (2003), 194n.32, 202Applicant A & Anor v MIEA (1997), 210n.85, 210n.87, 213n.89, 214n.90Applicant A v MIEA (1997), 187, 191, 203, 204, 213, 213n.89, 220, 223–224, 227–228, 235,

238–239Applicant C v MIMA (2001), 294n.75, 294n.77, 295Applicant N403 of 2000 v MIMA (2000), 198–199Applicant NABD/2002 v MIMA (2005), 194, 250n.88Applicant S v MIMA (2004), 204–205, 206–207, 228, 237, 238Argente v MIMA (2004), 33Arquita v MIMA (2000), 284n.45Auva’a, in the matter of an application for a Writ of Prohibition and Certiorari and Declaratory

and Injunctive Relief against Vanstone, 40–41Bagus v MIMA (1994), 75n.94Baker v Campbell (1983), 258Bal v MIMA (2002), 35–37Bedlington v Chong (1997), 39n.20Blanco-Lopez v INS (9th Cir. 1988), 234n.50Bretag v MILGEA (1991), 59British Rail Board v Pickin (1974), 232n.38, 231–234Bui v MIMA (1999), 152Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs (2003), 65Calado v MIMA (1997), 189–190, 192Cameirao v MIMA (2000), 194n.33Canada (Attorney-General) v Ward (1993), 175, 198n.47

xiv






TABLE OF CASES xv

Canwan Coals Pty Ltd v FCT (1974), 223n.16Cardenas v MIMA (2001), 121n.39Castlemaine Tooheys Ltd v South Australia (1990), 241n.65, 242, 246n.78Cerff, Stephen Cyril (2003), 64–65Chan Yee Kin v MIEA (1989), 189n.12, 199, 219, 220–222, 252, 253, 253n.7, 254, 255,

255n.12, 263n.1Chen Shi Hai v MIMA (2000), 229, 230–231, 235, 238, 246, 255n.10Cheung v Minister for Immigration & Multicultural & Indigenous Affairs (2005), 85n.24Cheung v MRT (2004), 91n.63Church of the New Faith v The Commissioner of Pay-Roll Tax (Victoria) (1983), 193n.24, 232Commonwealth v Baume (1905), 223n.17Commonwealth v Tasmania (1983), 190, 224n.18Dhayakpa v MIEA (1995), 276–277, 278n.29Doan v MIMA (2000), 62Drake v MIEA (No.2) (1979), 30n.21Du v MIMA (2000), 62–63EC v Minister for Immigration & Multicultural & Indigenous Affairs (2004), 69–70, 71El Ess v Minister for Immigration & Multicultural & Indigenous Affairs (2004), 30–31, 157–158Esso Australia Resources Limited v The Commissioner of Taxation (1999), 258Fathi-Rad v Canada (Secretary of State) (1994), 196Gunaseelan v MIMA (1997), 222n.10Harry Tjandra aka Jimmy Yek v MIEA (1996), 138n.14Hernandez-Montiel v INS (9th Cir. 2000), 234n.50Horvath v Secretary of State for the Home Department (UK) (2001), 175Hossain v MIMIA (2007), 143n.34Ibrahim v Minister for Immigration & Multicultural & Indigenous Affairs (2002), 33, 63–64Inderjit Singh v MIMA (2001), 319Islam (A.P.) v. Secretary of State for the Home Department, Regina v. Immigration Appeal

Tribunal and Another Ex Parte Shah (UK) (1999), 210n.84Issa v MIMA (2000), 77IW v City of Perth (1997), 241n.64, 241n.66, 248Jahazi v MIEA (1995), 230n.36Johnson v Minister for Immigration & Multicultural & Indigenous Affairs (2004), 138–139Juan Alejandro Araya Heredio (Canada) (1977), 200Kenny v MILGEA (1993), 19Lama v MIMA (1999), 195, 235Leung v MIMA (2001), 291Li v MIMA (2000), 36Lin v Minister for Immigration & Multicultural & Indigenous Affairs (2004), 77–80Lobo v Minister for Immigration & Multicultural & Indigenous Affairs (2003), 93Maddalozzo v Maddick (1992), 223n.17Mandla v Dowell Lee [1983], 190n.14Maria Macabenta v Minister of State for Immigration & Multicultural Affairs (1998), 193n.21Marina Galvis de Cardona (Canada) (1979), 201Masuoka v Immigration Review Tribunal (1996), 111n.95Mauricio Esteban Lemoine Guajardo v Minister of Employment and Immigration (Canada)

(1981), 201Meroka v MIMA (2002), 63–64MIEA v Guo & Anor (1997), 174, 199, 220, 254, 255MIEA v Pochi (1980), 59MIEA v Wu Shan Liang & Ors (1996), 252n.3MILGEA v Dhillon (1990), 58MILGEA v Gray (1994), 30MIMA v Y (1998), 198






xvi TABLE OF CASES

MIMA v ‘A’ (1999), 34, 36, 39MIMA v Al-Sallal (1999), 295MIMA v Asif (2000), 60MIMA v Darboy (1998), 195n.36, 232MIMA v Eshetu (1999), 321MIMA v Farahanipour (2001), 258n.17MIMA v Gnanapiragasam (1998), 293n.68MIMA v Ibrahim (2000), 187–188, 220, 229, 243n.72MIMA v Kandasamy (2000), 174n.23MIMA v Khawar (2002), 207, 210n.84, 249MIMA v Kundu (2000), 35MIMA v Li (2000), 35MIMA v Respondents S152/2003 (2004), 174–175, 249–250MIMA v Savvin (2000), 170n.1MIMA v SGLB (2004), 324n.30MIMA v Singh (2002), 282n.37MIMA v Thiyagarajah (1998), 267n.9, 293, 295MIMA v VBAQ of 2002 (2004), 222n.12MIMA v VWBA (2005), 194n.33MIMA v WABQ (2002), 266–267MIMA v VBAOQ of 2002 (2004), 219MIMA v Yusuf (2001), 322, 323n.25MIMIA v Hidalgo (2005), 75n.94Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986), 30, 156Minister for Immigration & Multicultural & Indigenous Affairs v Godley (2005), 165n.25Minister for Immigration & Multicultural & Indigenous Affairs v Kord (2002), 219–220Minister for Immigration & Multicultural & Indigenous Affairs v Nystrom (2006), 20Minister for Immigration & Multicultural & Indigenous Affairs v QAAH of 2004 (2004), 264–266MMM v MIMA (1998), 195n.36Moller v MIMA (2007), 45n.29, 121n.35Montes-Granados v MIMA (2000), 260n.24Murugasu........., 229N01/04446 (2004), 153N1045/00 A v MIMA (2002), 294n.75NAEN v Minister for Immigration & Multicultural & Indigenous Affairs (2003), 293n.73NAES v MIMA (2004), 253n.6NAEU v MIMA (2002), 199Nagalingam v MILGEA & Anor (1992), 267n.9NAGV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002), 295,

296n.79Naidu v MIMA (2000), 156Namitabar v Canada (1994), 196Nassif v Minister for Immigration & Multicultural & Indigenous Affairs (2003), 93n.72Nassouh v MIMA (2000), 61NBGM v MIMA (2006), 296n.79Nguyen v MIMA (2001), 42, 157Nolan v MIEA (1988), 19Ovcharuk v MIMA (1998), 277, 278, 282n.37, 288n.52Patto v MIMA (2000), 292n.62, 293Perampalam v MIMA (1999), 259n.22Petty and Maiden v The Queen (1991), 201Plaintiff S157/2002 v Commonwealth of Australia (2003), 23, 223n.14Pochi v MacPhee (1982), 18–19Prashar v MIMA (2001), 194n.33






TABLE OF CASES xvii

Pushpanathan v Canada (Minister of Citizenship and Immigration) (1998), 283R v Cahill (1978), 57n.25, 58R v Home Secretary; Ex parte Sivakumaran (1988), 253, 255R v Immigration Appeal Tribunal; Ex parte Shah (1999), 231R v Macfarlane; Ex parte O’Flanagan and O’Kelly (1923), 2n.3Rafiq v Minister for Immigration & Multicultural & Indigenous Affairs (2004), 77Rajendran; MIMA v Gnanapiragasam (1998), 295Rajendran v MIMA (1998), 267n.9Ram v MIEA (1995), 205, 206, 210n.86, 228Ramirez-Rivas v INS (9th Cir. 1990), 234n.50Randhawa v MILGEA (1994), 259Re MIMA & Anor: ex parte Miah, 38, 325Re MIMA; Ex parte Applicant S20/2002 (2003), 325Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002), 20Re Patterson; Ex parte Taylor (2001), 16n.1, 19n.7Rezaei v MIMA (2001), 263n.4Robinson v MIMIA (2005), 153Robtelmes v Brenan (1906), 16–18Roguinski v MIMA (2001), 229Rohner v MIEA (1997), 53n.3Rohner v MIMA (1998), 53n.4S157/2002 v Commonwealth (2003), 324S395/2002 v MIMA (2003), 239n.62, 250SAAS v MIMA (2002), 257n.16Saliba v MIMA (1998), 198n.47Sam, Sophy (2004), 68–69Scargill v Minister for Immigration & Multicultural & Indigenous Affairs (2003), 75n.94, 76n.95Schaap v MIMA (2000), 156SDAQ v Minister for Immigration & Multicultural & Indigenous Affairs (2003), 254n.9Secretary of State for the Home Department v K: Fornah v Secretary of State for the Home

Department (UK) [2006], 207n.82SGKB v Minister for Immigration & Multicultural & Indigenous Affairs (2003), 254Shao v Minister for Immigration & Multicultural & Indigenous Affairs (2005), 45n.29Shaw v MIMA (2003), 19n.7, 19n.9Sheritt Gordon Mines Ltd v FCT (1976), 222n.13Simpson v MIEA (1994), 58–59Singh v Commonwealth of Australia (2004), 19n.9Singh v MIMA (2002), 280–281SKFB v MIMA (2004), 259Soegianto v MIMA (2001), 30Sok v Minister for Immigration & Multicultural & Indigenous Affairs (2005), 65Somaghi v MILGEA (1991), 258n.18SRYY v Minister for Immigration & Multicultural & Indigenous Affairs (2005), 269n.13, 270n.16,

284n.45STCB v MIMA (2006), 216Street v Queensland Bar Association (1989), 241, 242–243SZAZX v Minister for Immigration (2004), 259SZCCZ v MIMA [2006], 143n.34SZITR v MIMA (2006), 269n.13T v Secretary of State for the Home Department (UK) (1996), 281–282Taiem v MIMA (2001), 291Tarasovski & Ors v MILGEA (1993), 162n.22Terera v Minister for Immigration and Multicultural and Indigenous Affairs (2003), 41–43,

155–157






xviii TABLE OF CASES

Thalary v MIEA (1997), 196n.41, 222n.10Tharmalingen v MIEA (1998), 197Thiyagarajah v MIMA (1997), 292n.62, 292n.63, 293Thongpraphai v MIMA (2000), 41, 42, 156Tjhe Kwet Koe v MIEA & Anor (1997), 290V v MIEA (1999), 198V v MIMA (1999), 200n.53V856/00 A v MIMA (2001), 292n.65V872/00 A v MIMA (2001), 293n.71VBAO v MIMA (2006), 218n.6VHAF v MIMA (2002), 320n.8VTAG v Minister for Immigration, Multicultural & Indigenous Affairs (2004), 253n.7VWYJ v Minister for Immigration & Multicultural & Indigenous Affairs (2006), 284n.46W221/01 A v MIMA (2002), 256n.13WAGH v Minister for Immigration & Multicultural & Indigenous Affairs (2003), 294n.76Wai Che Lee (Canada), 201n.57Wang v MIMA (2000), 193, 195Weheliye v MIMA (2001), 235n.51Welivita v MIEA (1996), 197Wolseley v MIMA (2006), 116n.132Wu v MIEA (1996), 36Xie v MIMA (2000), 30Ye Hong v MIMA (1998), 203, 203n.69Yilmaz v MIMA (2000), 34–35Yu v Minister for Immigration & Multicultural & Indigenous Affairs (2004), 89n.51Z v MIMA (1998), 195n.36Zanaj v MIMA (2000), 37






Table of statutes

Acts Interpretation Act 1901, 34, 36, 224Administrative Decisions (Judicial Review) Act 1977 (AJDR Act), 21, 22, 320Audit Act 1901, 168n.35Australian Citizenship Act 1948, 18–19, 136n.1Australian Citizenship Act 2007, 136–137Australian Colonies Act 1850 (Imp), 6Australian Security Intelligence Organisation Act 1979, 116Chinese Immigration Act 1855 (Vic), 6n.13Contract Immigrants Act 1905, 10Crimes (Aviation) Act 1991, 279Crimes (Internationally Protected Persons) Act 1976, 279Crimes (Ships and Fixed Platforms) Act 1992, 279Education Services for Overseas Students (ESOS) Act 2000, 131Equal Opportunity Act 1984 (WA), 248–249Extradition Act 1988, 149n.74, 278, 280, 282Genocide Convention Act 1949, 279Immigration Restriction Act 1901, 9, 10, 12International Criminal Court Act 2002, 149n.74International Organisations (Privileges and Immunities) Act 1963, 120International War Crimes Tribunals Act 1995, 149n.74Judiciary Act 1903, 22Marriage Act 1961, 53n.2, 53–54, 57, 58Migration 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, 138Migration Legislation Amendment Act (No 6) 2001, 188n.7, 189, 214, 258n.17, 280n.33Migration Legislation Amendment (Judicial Review) Act 2001, 324n.27Migration Legislation Amendment (Procedural Fairness) Act 2002, 49, 325Migration Reform Act 1992, 22, 320–325Mutual Assistance in Criminal Matters Act 1987, 149n.74Overseas Missions (Privileges and Immunities) Act 1995, 120Pacific Islanders Labourer’s Act 1901, 9, 16–18Post and Telegraph Act 1901, 10Sentencing Amendment Act (No 3) 2001 (NT), 232n.41Sex Discrimination Act 1984, 53Social Security Act 1991, 46, 74, 76

xx






Preface to the second edition

A defining aspect of national sovereignty is that nation states have the right todetermine 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 placewhere they were born or live.

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

These common projects serve to entrench our feeling of community. We alsocome 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 ourculture and values, whether permanently or for a shorter period. It is, thus,inherently controversial. Limits seemingly need to be placed on the numbers andtypes of people who can come to Australia.

This book examines the way in which Australia currently responds to thischallenge. It is divided into two main sections. The first eleven chaptersexamine migration law. The next seven chapters look at refugee law. Thedichotomy 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 involvesthree among over 150 available visas. Chapter 19 outlines the scope for ‘meritsreview’ and judicial review of decisions made in relation to migration or refugeevisas.

However, substantively, there is a fundamental distinction between migrationand refugee law. Migration law and policy is in essence concerned with whatmigrants can do for Australia. The principal objective in framing migration lawis to let in people who will contribute something tangible to Australia. Australiaseeks 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 asa community can do for a person fleeing serious harm, rather than what he or

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PREFACE TO THE SECOND EDITION xxiii

she has to offer us as a nation. Refugees make a significant contribution to thecountry, but this is an incidental outcome of refugee policy.

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

The authors have incorporated into this second edition the numerous and sig-nificant changes to migration legislation and policy as well as important develop-ments in migration and refugee case law that have occurred since the publicationof the first edition in 2005.

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

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

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

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

The chapters on refugee law provide an overview of existing legal princi-ples in relation to the more unsettled areas of law (such as how persecution isdefined) and suggest a way in which the law can be made more coherent andworkable.






xxiv PREFACE TO THE SECOND EDITION

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

This book is essentially concerned with the principles governing the mannerin which non-citizens come to gain lawful access to Australia. The focus is noton how people come to lose this status or the legal process in which migrationand refugee status is determined. This last area involves the entire ambit ofadministrative law and is another fertile source of jurisprudence. A treatment ofthis is beyond the scope of this book. However, for the sake of completeness, weprovide an overview of these areas in chapters 11 and 19 respectively.






Acknowledgments

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

The Bond Law Review: Mirko Bagaric & Penny Dimopoulos, ‘The shifting meaning ofpersecution in Australian refugee law: how much must one suffer to be deserving ofasylum?’, (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 TheCanterbury Law Review (NZ), 268–293.The International Journal of the Sociology of Law: Mirko Bagaric & Penny Dimopou-los, ‘Discrimination as the touchstone of persecution in refugee law’, (2004) 32 TheInternational Journal of the Sociology of Law, 310–334.

The authors’ knowledge of Refugee Law has been greatly assisted by their trainingand experience at the Refugee Review Tribunal and in particular to the excellentpublication 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 anduse extracts from the excellent online course: ‘In Search of Australia: HistoricalPerspectives’, developed for the Central Queensland University. This assisted usgreatly in the writing of chapter 1.

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

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Documents

Migration and Refugee Lawassets.cambridge.org/97805217/14327/frontmatter/...7.4 Visas based on employer nominations 110 7.4.1 The Employer nomination scheme (ENS) 110 7.4.2 The regional