Murdoch University Electronic Journal of Law

Author:	Virakone Sengchanh B Econ LLB (Hons) (Macq)
Issue:	Volume 8, Number 4 (December 2001)

Contents:

Hope
• Introduction
• Nature of our International Obligation
• Return to Sender...Address Unknown
• Second class refugees
• Housing
• Medical
• Services
• Family
• Conclusion
• Importance of belonging
• Rule of Law Rethought
• Judicial opinion
• Liberal view
• Restrictive view
• Lim
• Cunliffe
• Fang
• Liang
• Conclusion
• Bibliography
• Cases
• Notes

Dedicated to my grandfather - for his bravery, service and his love.

Hope

It has been over twenty years since my grandfather escaped with his wife, their children and their children's children across the Mekong River. In fear of his life and the livelihood of his family, my grandfather left everything he had owned and built. No laughter, no noise from pattering footsteps across the rice fields, sliding silently onto canoes, pushing across the rushing Kong, awakening in a graveyard, endless walk for help, imprisonment, then refugee camp - we escaped in secret, under the cloak of night and found refuge in Thailand. The doors of Australia were eventually opened to us and here we have made our home.

I asked my grandfather about the experience. He smiled. I have gathered bits and pieces from whispered conversations of aunts who remember but do not retell the story. They smile. Even the most vivid present day reminder of our escape - my one legged second cousin - can smile at his good fortune.

Their faces are not etched with the lines of a haunted history. They are the struggle lines engraved upon the faces of those refugees who are given a chance to rebuild their lives again in another country - those that live two lifetimes in one.

With faith in every forward footstep many refugee families have similar experiences to my own. Having made their way or presently passing their way from one life to another, common to the refugee tale is the agony of being uprooted from home and the hope through survival.

Listen to the voices of these refugees. They are the voices of ordinary men and women under extraordinary circumstances.

Refugees in this 'born again' experience are a peculiarity. For if we could capture their stories, we could in a moment in time, look reverently backwards and faithfully forward. If these stories could be captured I am sure it would inspire and rekindle the spirit deep within us all - a spirit that prays for courage, hope and acceptance. It is this 'refugee' spirit that we need - it challenges us to be and do better.

Introduction

1. Unfortunately, we can only feel a glimpse of this 'refugee spirit' in the Australian treatment of those people seeking refugee status and consequent permanent residency. Part I of this paper highlights the unsatisfactory nature of the Australian position regarding incorporation of international treaties concerning refugees. In particular my focus is on the policy that Australia is now denying citizenship to those who arrive without a valid visa or passport after the 20th of October 1999. An asylum seeker in this respect is not eligible for permanent residence and can only be granted a three-year Temporary Protection Visa (TPV - Visa Subclass 785). I argue that this new policy measure is contrary to the spirit of our international obligations. I seek to show how the practices of the new policy disempower and patronize refugees. It offers them artificial choices and perpetuates the loss of control and social dislocation.

2. Part II looks at the implications of citizenship and non-citizen rights from two angles. Firstly as a basis for democratic theory and judicial review and secondly as a footing for exclusion of non-citizens, of which refugees are a significant sub-set. The location and construction of the refugee is a product of particular visions of the democracy, state and citizenship. My argument is that there is a need to incorporate a view of citizenship, which is concerned with the rights of individuals within the community, no matter what their formal citizenship status. Only then may we see different and effective answers evolve in refugee law.

   Nature of our International Obligation

3. Australia acceded to the two principal conventions, which govern international refugee law matters: the 1951 Convention relating to the status of Refugees (the Convention) and its 1967 Protocol[1]. The Convention sets out the rights of refugees and the standards for their treatment in the countries that receive them. In particular, Article 33 of the Convention provides for the principle of non-refoulement -

   No " state shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."

   It is important to note that there is a legal distinction between refoulement and asylum. The Convention primarily offers protection from refoulement and an interim regime of protection pending a durable solution. While signatory countries are required not to directly or indirectly return a refugee to their country of origin or other places of persecution, they are not required to provide permanent residence to meet that obligation.

4. While there is general agreement at the international level that temporary protection has a valid place in the refugee protection framework[2] Australia has been overly restrictive in its interpretation and application of this key element of the Convention. By denying permanent residency to a class of refugees - those who arrive in Australia without a valid visa or passport after the 20th of October 1999 - Australia is fulfilling the 'letter of the law' - that a State is not required to provide permanent residence to meet the Convention obligation. But such practice is violating the spirit of the entire Refugee Convention because the practice will have a profound and lasting negative impact on the present and future lives of the refugees concerned. What are these negative impacts?

   Return to Sender...Address Unknown

5. Temporary protection has been used to meet emergency refugee influxes in many countries. Through its use, governments can initially avoid having to undertake individual screening, which is both time-consuming and costly. Thus most temporary protection schemes offer refuge to everyone fleeing an area of generalized conflict or human rights abuse. While this approach works as a coping mechanism for mass influxes from civil wars, in the Australian case it is being applied to people who have been and can be individually determined. Moreover, it presumes that the conflict will be short-lived and that asylum-seekers may be returned directly the conflict is over. If the conflict is not short-lived, the question of refugee status pursuant to the Convention and durable solutions cannot be avoided forever. We have to eventually find a solution. The assumption that people can return as soon as formal hostilities are concluded is also incorrect. Given that reconstruction is required and that, in the case of the dismemberment of a State into new polities with new nationality rules, many asylum-seekers cannot return to the place from whence they came[3]

   Second class refugees

6. Article 31 of the Convention provides that the State shall not impose penalties, on account of their 'illegal entry, on refugees coming directly from a territory where their life or freedom was threatened' but eligibility for a 785 Temporary Protection Visa, as opposed to the more generous 866 Permanent Residence Protection visa, is determined solely on method of arrival. The new measures consequently create two tiers of refugee status.

7. On the one hand there are the people who were legally in Australia at the time they made their application. They are granted permanent residence, which provides certainty about the future and access to the full range of benefits afforded to other permanent residents.

8. On the other hand there are those people who, for one reason or another, are not able to use regular migration channels. They also have a claim for refugee status no less credible than those of the first group but can only be granted only temporary residence. These people subject to temporary protection become "B" status or "humanitarian" refugees because they are simply not granted all the needed social rights. The three-year Temporary Protection Visa has certain entitlements, which does give its recipients access to welfare, education and work[4] but these are barely minimal and is arguably contrary to Australia's obligations under the Refugee Convention which seeks to protect such vulnerable groups. The following will explain how this is so.

9. In 1998 the Refugee Resettlement Advisory Council (RRAC) found that former detainees have settlement needs additional to those of refugees who had not been detained. It was recommended that former detainees be considered an especially vulnerable group whose needs should be addressed by service providers. This recommendation was adopted by DIMA in the early drafts of the Integrated Humanitarian Settlement Strategy. With the introduction of the temporary protection visas, all of this has gone out the window. Not only are released detainees no longer considered a special target group, they are no longer eligible for even the base level of services other refugees are entitled to.

   Housing

10. The new visas make it impossible for refugees to access a wide range of services, which are essential to recovery. Refugees under this protection will experience problems with securing accommodation because of their temporary status (discrimination by real estate agents and ineligibility for public housing) and because they are not eligible for bond assistance. The Refugee Council has already received reports that Afghans granted the new temporary visas are sleeping in tents in the streets of Perth because they are unable to obtain or afford proper accommodation[5] Further, their ineligibility for Adult Migrant English Program courses will mean that those with limited English are likely to remain without functional communication skills, plus they will not be eligible for the Job Network services so will have a much harder time finding employment[6]

    Medical

11. Once a person has been granted a temporary protection visa (TPV) it is a requirement that he/she apply for a permanent protection visa (subclass 866) in order to be eligible for Medicare. As no assistance is being provided at this time for TPV holders to lodge this application, the significance of doing so might be lost, or an incomplete application submitted which is summarily rejected, and the refugee might find him/herself without access to medical services. If this were to be the case, it would arguably be a breach of Article 23 of the Convention, which requires that a refugee have access to the same level of public relief as nationals.[7]

    Services

12. One of the few settlement services that TPV holders will be eligible for is the Early Intervention Case Management. This program is intended to assess entrants' needs and then refer them to appropriate programs. Workers are already expressing frustration and confusion because once they have identified the TPV entrants' needs, there is nowhere to refer them to. This has significant implications for the staff as well as the entrants. The limitation on eligibility for DIMA funded settlement services, and the pressure being put on ethno-specific groups not to assist subclass 785 visa holders, will result in the new entrants finding it very difficult to get assistance from regular sources. They will thus have to turn to other service providers, in particular the mainstream charities, and compete directly with the needy in the Australian community for the limited resources. This will generate negative community attitudes towards refugees[8] because they will be stigmatized as a burden to society.

    Family

13. At the October 1999 meeting of the Executive Committee of the United Nations High Commissioner for Refugees, Australia was one of the countries that passed, by consensus, a Conclusion on the Protection of the Refugee's Family. Here it was re-emphasised that the family is the natural and fundamental group unit of society and is entitled to protection by the society and the state. Moreover there is the underlying need for the refugee family to be protected by measures which ensure respect for the principle of family unity, including those to reunify family members separated as a result of refugee flight.

14. Possibly the most profound limitation on those with temporary visas is that which precludes family reunion. Under the new provisions, a man coming to Australia to seek protection and granted a temporary visa is likely to be separated from his wife and children for a period more than five years. This is a violation of the refugee's right to be reunited with his family. The separation is likely to cause significant psychological distress to the refugee and the family. It will extend the period during which his family is in danger. Women and dependent children without male support are especially vulnerable in refugee camps and also in certain countries of origin (especially if it is known that a member of the family has sought asylum).

    Conclusion

15. The above analysis has sought to show how the practices of the new Australian policy - the Temporary Protection Visa - can have a negative impact upon recipients. It can disempower and patronize refugees. It offers them artificial choices and perpetuates the loss of control and social dislocation. Such practice clearly shows how the tendency of states to interpret their own duties in light of sovereign self-interest contributes ' to a negative situation capable of breaching the fundamental principle of non-refoulement.'[9]

16. The need for an immediate response demands that the regulatory framework that controls the 'distribution of membership' and distribution of 'goods and services' be reconstituted with the inclusions of elements capable of according justice to refugees. From the standpoint of refugees a solution would entail the notion that - subordinate and disadvantage groups in society have a perspective of their own life experience that cannot be accommodated in a regulatory framework that relies on the application of objective criteria. Such a framework overtly ignores the existence of this subjectivity. This suggests that the key element that needs to be included in the regulatory framework is a capacity to accommodate the subjective life experiences of refugees.[10]

17. As Article 33 'brings the Convention close to recognizing the subjective right of the asylum'[11] we need to ratify and institute it with a more liberal and wider perspective. From the standpoint of the refugee this firstly means that refugees should have access to a full range of needed goods and services and opportunities. It must needs be that as 'non-citizens' they need wider and more profound rights. Secondly, it means the incorporation of policies that pursues and finds lasting solutions. A refugee has found a lasting solution when he or she is no longer in need of international protection and when he or she has assumed all of the rights and responsibilities of other citizens living in the same state. Thus refugees need a real opportunity to become a citizen. When governments practice policy that effectively limit membership in a community they are in effect unjustly distributing the primary social good - membership in a community.

    Importance of belonging

18. 'The primary good that we distribute to one another is membership in some human community.'[12]

    The extent to which the nature of legal authority is determined by the ideological interests of dominant groups, is made apparent by the fact that this tendency is most pervasive in contexts where those denied the possibility of 'individualised justice' are members of the most disadvantaged and subordinate groups in society. As 'non-members' of society, they are relegated to being passive recipients of an unjust distribution of the 'primary social good'- membership.[13] It is important to critically review the assumptions that lead to such result.

19. We understand citizenship to be relevant to our understanding of democracy. Yet, while the democratic values associated with citizenship are important elements for a democracy, there is also another consequence flowing from citizenship - what do we do about non-citizens? How do we treat people who do not have the legal status of citizen in our community? Moreover, how do we treat people who are not even resident in our community - non-citizens who seek to become members of the community?

20. This section of the paper looks at citizenship from both angles - as a basis for democratic theory and judicial review and, as a footing for exclusion of non-citizens, of which refugees are a significant sub-set. My argument is that we should adopt a more liberal approach towards the rights of a non-citizen, one that ties non-citizen rights to humanity not to legal status. Only then will we find a more just, equitable and lasting solution to the refugee problem.

    Rule of Law Rethought

21. In a democracy with citizen members, it is those members of the community who decide how the community will be governed, and who will govern. Popular sovereignty, and the rule by the citizens, is a vital part of the legitimacy of judicial review in liberal democracies. Judicial review is a mechanism for ensuring that the government and the individuals are equal in their treatment before the law. Just as the individual is subject to the law, so too is the state. The rule of law is pivotal to this understanding of democracy. Ronald Dworkin[14] an American philosopher, challenges our understanding of the rule of law. He claims that there are in fact "two very different conceptions of the rule of law, each of which has its partisans". He identifies the first as the "rule book" conception and the second as the "rights" conception.

22. The rule book conception involves the theory that the power of the state should never be exercised against individual citizens except in accordance with rules explicitly set out in a public rule book, available to all.

23. The rights conception assumes that citizens have moral rights and duties with respect to one another and political rights against the state as a whole. These rights are to be recognised in positive law so that the citizen through the courts may enforce them. The rule of law then in this sense is the ideal of rule by an accurate public conception of individual rights. In this sense, citizenship is linked to humanity, not to the formal legal status.

24. Dworkin continues to distinguish the two concepts, but the most important distinction for this discussion is the different result they suggest on the question of whether judges should make political decisions in cases where the rule-book does not give an answer. The rule book conception, is part of the legalistic, formalist framework in Australian jurisprudence which says that judges should decide hard cases by trying to discover what is really in the rule book. Judges should not decide cases on their own political beliefs, but rather by considering what "should" be in the rule book. The rights conception in contrast insists that the rule-book is relevant because people have a prima facie moral right for courts to enforce the rules that the representative legislature has enacted, but it denies that the rule book is the exclusive source of moral rights in court. Dworkin claims that "[a] judge who follows the rights conception of the rule of law will try, in a hard case, to frame some principle that strikes him as capturing, at the appropriate level of abstraction, the moral rights of the parties that are pertinent to the issues raised by the case"[15]

25. This distinction is important when looking at how views of citizenship influence the legitimacy and scope of judicial review of executive action. One view is that the citizens have elected the people to act as the State - so the policy judgements of those in power are to be kept in check by the democratic system. That is, if the citizens do not like the government of the day's policies they can decide not to re-elect them at the following election. We are constantly reminded that the judges are not there to adjudicate on policy matters. Rather, they are exercising a vital democratic function - of keeping a check on the lawful exercise of governmental power. This is a rule book conception of citizenship. In essence this becomes a citizenship of exclusion, because only those who have membership voting rights can exercise this citizenship. Non-citizens have no rights.

26. A rights based view of citizenship, says that the Courts do have a responsibility over the content of the rules - that a democracy that values citizenship should look to the nature of those rules to see if they offend human rights that are essential to a just and democratic society.

27. These different views display different theoretical understandings of judicial review. Refugee law is an acute example of citizenship representing exclusion from political influence. The High Court has had various contexts within which to consider the significance of citizenship and the rights of non-citizens in Australian refugee law. Predominantly, the status is raised in refugee cases, but it is also of importance in cases, which look at rights and responsibilities, which discriminate upon the grounds of citizenship. I will highlight a few cases to bring attention some of the High Court's view on citizenship.

    Judicial opinion

    Liberal view

28. In the decisions of Chief Justice Mason in Cunliffe[16] and Gaudron J in Teoh[17] - we do find judicial support for a more liberal and open view of non-citizen rights.

29. Chief Justice Mason, in Cunliffe, was the only judge to embrace the idea that non-citizens in Australia were entitled to the protection afforded by the Constitution and the laws of Australia. He said that non-citizens within Australia were entitled to invoke the implied freedom of communication, particularly -

    "when they are exercising that freedom for purpose, or in the course of establishing their status as entrants and refugees or asserting a claim against government or seeking the protection of the government."[18]

30. Justice Gaudron in Teoh, relied on common law rights of citizenship, in deciding whether an executive decision-maker in a migration matter, should have taken into account the interests of the children of a man who was about to be deported. Gaudron J relied on the children's Australian citizenship. She argued -

    ' [C]itizenship carries with it a common law right on the part of children and their parents to have a child's best interests taken into account, at least as a primary consideration, in all discretionary decisions by governments and government agencies which directly affect that children's welfare, particularly decisions which affect children as dramatically and as fundamentally as those involved in this case'[19]

31. Her Honour referred to the obligations that a State has to its citizens in a "civilised democratic society". In this context, she is emphasising citizenship as an essential element to democracy. By bringing citizenship into a matter of family relationship, she is implying that democracy must value families. This reflects a view of citizenship, which is broader than the formal legal status. It is citizenship as a commitment to human rights.

32. The consequences of embracing such a vision are profound. It will allow access for refugees to a broader and extensive range of rights and services. It will allow the incorporation of the subjective viewpoint of a refugee, in a regulatory framework that eventually determines their right to life, to identity and to community. It will allow our vision to expand and include.

33. Unfortunately our history has been strewn with instances where we have reaffirmed our right to exclude - our entire immigration system is based upon it - and citizenship is essential to that exclusion.

    Restrictive view

    Lim

34. The Lim[20] case emphasises that Refugee law, in particular, is an area of policy that is essential to the identity and content of the community. It decides which person will be members of the community - it decides which people become citizens, who in turn will influence the outcome of further policy. In the Lim case we find that the High Court's understanding of the status of non-citizenship is a legitimate basis for exclusion and not contrary to the Parliament's power as prescribed by the Constitution.

35. The case concerned the Federal government's power to legislate in migration matters. Changes had been made to the Migration Act 1958 which in effect "designated" certain persons to be kept in custody, and only to be released from that custody if they were to be removed from Australia. These designated persons were 'non-citizens'[21] and were in this instance people seeking refugee status in Australia. The issue turned on whether the legislation was constitutionally valid and whether a non-citizen would be able to challenge the decision of the Commonwealth Officer in the same manner as an Australian citizen, pursuant the Constitution.

36. The Court initially found that if the non-citizens were detained without such a statutory authority, the non-citizen would be able to challenge the decision of the Commonwealth Officer in the same manner as an Australian citizen, pursuant the Constitution. So the case turned on the constitutional validity of the legislation. Was it valid?

37. The Court first resorted to international law in its decision. In the early 20th century the Judicial Committee of the Privy Council said similar things to the case of Musgrove v Toy[22] - "One of the rights possessed by the supreme power in every State is the right to refuse to permit an alien to enter that State". The Court recognised that this principle had been the basis for many earlier High Court decisions. Consequently the Court recognised the Parliament can enact a statutory provision to empower detention of non-citizens. It was the executive power of the State that gave rise to its power to detain in the exercise of that executive power. Therefore, this legislation which discriminated upon the grounds of citizenship was valid.

38. Interestingly enough part of the legislation section was held to be invalid. This was the breach of separation of powers in the section, which dictated that the Courts could not review an executive decision. Paradoxically citizenship essentially appears in this context also in that the Court reaffirmed that decision-makers can not be above the law - even in exercising their executive power of detention. And in order to ensure that they are acting according to law, it means that the Court must review their decisions. But the practical reality of citizenship as exclusion was of significant consequence to the applicants in this case - the citizenship of judicial review did not protect them from exclusion.

39. Citizenship is not always discussed in terms of refugee and exclusion. The question of citizenship is fundamental in looking at the relationship between the individual and the State. The development of implied rights in the Australian Constitution also raises the question of whose rights? Do non-citizens have the protection of implied constitutional rights? This question was raised in obiter discussion in the Cunliffe[23] case.

    Cunliffe

40. This was a migration law case but of a different nature[24] The Migration Act 1958 was amended to include a section imposing restrictions on the giving of 'immigration assistance'. Only registered agents can legally provide immigration assistance, with harsh penalties applying for breach of that section. Cunliffe, a solicitor, challenged the Act.

41. The relevant challenge involved the question of free speech. The plaintiff argued, amongst other things, that the law was invalid because it contravened the implied constitutional guarantee of freedom of communication. The plaintiff argued that this implied freedom was not limited to communications for the purposes of the political processes in a representative democracy, but applied generally to all people of the Commonwealth in their communications with the Commonwealth Government.

42. It was held that the legislation was wholly valid with respect to aliens within section 51(xix) of the Commonwealth Constitution. The registration imposed by the Act upon the giving of immigration assistance to aliens or the making of immigration representations on their behalf did not interfere with any freedom of communication implied by the Constitution.

43. In the discussion about implied rights, some of the judges addressed the question of whether an implied freedom, such as the one claimed, could be claimed by non-citizens. Brennan and Deane JJ[25] sought to distinguish a non-citizen's right to the protection of the law, from the right to invoke the Constitutional protection of free speech. This distinction means that there are different legal consequences flowing from citizenship.

44. Justice Brennan grounded this distinction in the notion of representative democracy. Aliens "have no constitutional right to participate in or to be consulted on matters of government in this country" and the "Constitution contains no implications that the freedom is available to aliens who are applying for or who have applied for visas. Nor is there any basis for implying that aliens have a constitutional right." Moreover he stated -

    "[I]f the Constitution implied a right of access to government or to the repositories of statutory power...it would be a citizen's right."

45. The crucial point here is that the centrality of citizenship is the right to participate in, or to be consulted in government. If you do not have the right to vote, then you do not have the right to rely on the Constitutional protection of free speech in trying to invalidate a law.

46. Justice Deane accepted that non-citizens could rely on the ordinary law, and included in this some of the Constitution's guarantees, directives and prohibitions but declared that a non-citizen -

    "stands outside the people of the Commonwealth whose freedom of political communication and discussion is a necessary incident of the Constitution's doctrine of representative democracy. That being so the incident does not operate to directly confer rights or immunities upon an alien. Any benefit to an alien must be indirect in the sense that it flows from the freedom or immunity of those who are citizens."

47. Justice Deane noted that the effect of his distinction might be of no practical consequence, however, the significance is extreme in determining the rights that flow from citizenship. Therefore, exclusion becomes more pronounced, for it is not only a question of a right of entry, but also of access to rights within the country. This view of citizenship being integrally related to the democratic system of voting is significant in the assessment of judicial review.

48. The Cunliffe case is important in that it frames the meaning of citizenship. Citizenship is about democratic participation in government and society. Citizens are those who have the right to vote. Citizens have the right to participate in, and influence our democratic system. Citizenship in this sense is in contrast to subjectivity. Citizens are meant to be equal in their relationship with the State. Subjects are indeed that - subject to the power of the State.

    Fang

49. In Nicholson J's judgement in the Full Federal Court decision of Wu Yu Fang v The Minister for Immigration and Ethnic Affairs[26] the question of rights of persons who had arrived unlawfully in Australia, were reviewed. Were they entitled to be told that they had certain rights? Should procedural fairness apply to them? RD Nicholson J stated:

    "This is a case in which the Parliament has negated the possibility of common law concepts of procedural fairness applying in favour of the non-citizen applicants. While [this] executive conduct does not accord with internationally expressed goals relating to conduct in relation to refugees, the conditions for application of international law, as prescribed by Australian domestic law, are not present to enable international law to control that conduct. Furthermore, such conduct was supported by the enactments of the Australian Parliament, which, to that extent, evinces an intention in relation to non-citizens to negate the application of those internationally commended basic procedural requirements. The result is that the non-citizen applicants are unassisted by either Australian domestic law or by international law."

50. Citizenship is definitely at play here, in both contexts. Parliament, expressing the will of its citizens, has chosen to restrict the rights of non-citizens. Parliament will be accountable to the people at the next election; but of course they are accountable only to the citizens. And here, the Court states that it is bound by Parliament's express intent, illustrating a rule book view of judicial review, whereby it looks at the rules, and while recognising those rules are not conducive with principles protecting the rights of refugees, they are acceptable. In this sense we see citizenship as exclusion. Non-citizens are excluded from the democratic process, and have no means of influencing Australia's conduct toward them. The Court's reliance on a formalist view of judicial review, in accepting Parliament's power to offend rights also conforms to a narrow view of citizenship.

    Liang

51. The case of Minister for Immigration and Ethnic Affairs v Wu Shan Liang[27] is a further illustration and reinforcement of citizenship as democracy with a rule book conception of judicial review. The High Court criticised the over-zealous review by the Federal Court, and identified a change in law, through the use of different wording in the legislation, to explain this result. The section 'The proper role of a reviewing court' in the joint judgement of Brennan CJ, Toohey, McHugh and Gummow JJ reaffirms democracy essentially as majority rule, resulting in the Courts not being entitled to interfere with administrative injustice. The High Court in Liang is affirming a narrow, rule-based view of democracy. Despite the attempts by the lower Courts to introduce a rights based review of the legislation, and the action of the executive, the Court stated quite definitively, that it is bound by Parliament's clear intention[28]

52. Am I expecting judges to decide or influence refugee policy? Am I suggesting that the courts be in the position of overriding, if only temporarily, important decisions or policies of representatives of elected governments? Would not that be undemocratic? Surely citizenship is meant to be about exclusion - and why be concerned about the differential treatment that citizenship propounds?

53. All I am suggesting is a reevaluation of our assumptions, by society, the courts, DIMA, the Migration Act, RRT and so forth. What is required is for a more liberal interpretation of established principles. Indeed, a view that citizenship leads to a one-dimensional view of our parliamentary democracy should be resisted. The very fact that we are discussing the "return" of the Court to deferential approaches to judicial review, is reflective of the fact that there are broader notions of democracy and legitimate exercise of power. As discussed above, there are differing theoretical perspectives on the role of judicial review, one of which is a human rights based view of citizenship.

54. Citizenship is essential to our understanding of refugee law and to judicial review. However, the Courts have been incorporating in their reasoning a view of citizenship as exclusion. This is not new in Australia. But we are presently in the threshold of a new century, where international principles should be having a greater impact on domestic legislation, and where human rights should not only be exclusive to formal citizens within nation-state.

55. If we incorporated a view of citizenship, which was concerned with the rights of individuals within the community, no matter what their formal citizenship status, then we may see different answers evolve when the Courts review government legislation on refugee law.

    Conclusion

56. We are living in a time when the thrust of political and economic thinking and practice is bereft of commitment to social justice. My call in this essay has been to question and challenge the underlying assumptions, concepts, practices and voices that continually oppress and separate marginilised groups in our society. We must seriously assess the path we are treading, we must ask basic questions about the sort of society in which we wish to live, and to the extent to which our social and legal institutions deliver that society.

57. We need to listen and hear the voices of the oppressed. For an exact explanation for the refugee situation and of refugee law, which does not take into account the witness and voices of victims, is nothing more than an eviscerated abstraction. Failure to consider seriously the subjective element in the construction of explanations of oppression makes it difficult to give credence to the primacy of any ideology and theoretical explanation and suggests that the experience of oppression cannot be encompassed in a theory of theories which do not give the oppressed a voice. We need to lift our sights to embrace a vision that will give everyone an opportunity to be part of our community.

58. My grandfather passed away late last year. Before his death I had the honour and privilege to pronounce a religious blessing upon him. My heart swelled with gratitude and love for a man that was able to carry his family on his back. I am thankful for the legacy he has left me. I am thankful for him bringing me to Australia. I am thankful for Australia accepting me and giving me citizenship. May we continually have the courage to open our minds and hearts to those in need.

Bibliography

Ronald Dworkin (1985), A Matter of Principle, 11

Pierre-Michel Fontaine, The Relevance of the 1951 Geneva Convention Relating to the Status of Refugees (1994), Australian International Law Journal, pp69-79

Goodwin-Gill G.S, The Refugee in International Law (Oxford Clarendon Press, 1983 at 55), as Extracted in Hyndman Patricia, "Australian Immigration Law and Procedures Pertaining to the Admission of Refugees", McGill Law Journal, Volume 33 1988, p716, at 720

Ami Madhuri Kalmath, "Refugee Law in Australia" (1993), Law 511 Research Assignment, Macquarie University

Stewart Motha, "Discretionary Decision Making and Refugees: A Sociological exploration of transformations in the nature of Legal Authority"(1993), Law 511 Research Assignment, Macquarie University

Refugee Council of Australia position paper - see http://www.refugeecouncil.org.au/position01032000.htm

Kim Rubenstein , `Citizenship as Democratic Participation and Exclusion: The High Court`s approach to judicial review and refugees.` Paper presented at Retreating from the Refugee Convention, Darwin, February 1997

Justice Ronald Sackville, 'The Limits of Judicial Review of Executive Action -some comparisons between Australia and the United States.'

Savitri Taylor, "Informational Deficiencies Affecting Refugee Status Determinations: Sources and Solutions", 1994, University of Tasmania Law Review, Volume 13, No 1, pp43-101

Savitri Taylor, "Marginalising the International Law Claims of On-Shore Asylum seekers in Pursuit of Immigration Control and Foreign Policy Objectives", [1994], Sydney Law Review, Volume 16, pp32-71

Cases

Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1

Cunliffe and Another v. The Commonwealth of Australia (1994) 182 CLR 272

Wu Yu Fang v The Minister for Immigration and Ethnic Affairs (1996) 135 ALR 583.

Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh(1995) 128 ALR 353

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 136 ALR 481

Musgrove v Chen Teong Toy [1891] AC 272 at 283.

Notes

[1] Savitri Taylor, "Marginalising the International Law Claims of On-Shore Asylum seekers in Pursuit of Immigration Control and Foreign Policy Objectives", [1994], Sydney Law Review, Volume 16, pp32-71. The Protocol was drafted to remove the geographic and time limitations of the earlier instrument, the incorporation of which reflected the post-World War II context in which the Convention was framed. Otherwise, it retains the same language as that used in the Convention.

[2] There is a well established mechanism, incorporated in the 1951 UN Refugee Convention, which can be applied to facilitate the repatriation of people who were recognized as refugees but who no longer need international protection. Commonly known as the 'cessation clause', this mechanism is based on the principle that people should enjoy refugee status only for as long as it is absolutely necessary, and that such status can be withdrawn when fundamental and durable changes have taken place in their country of origin. During the past 20 years, UNHCR and states have applied this principle to refugees from 15 different countries where peace has been restored and where democratic systems of government have been established.

[3] Refugee Council of Australia position paper - see http://www.refugeecouncil.org.au/position01032000.htm

[4] The TPV gives access only to Special Benefits through Centrelink for which a range of eligibility criteria apply; no family reunion rights (including reunion with spouse and children); limited access to DIMA funded settlement services; access to school education subject to state policy (full fees imposed for tertiary education); permission to work, but ability to find employment influenced by temporary nature of visa; and no automatic right of return if the visa holder leaves the country.

[5] Refugee Council of Australia position paper - see http://www.refugeecouncil.org.au/position01032000.htm

[6] ibid

[7] ibid

[8] ibid

[9] Goodwin-Gill G.S, The Refugee in International Law (Oxford Clarendon Press, 1983 at 55), as Extracted in Hyndman Patricia, "Australian Immigration Law and Procedures Pertaining to the Admission of Refugees", McGill Law Journal, Volume 33 1988, p716, at 720

[10] Stewart Motha, "Discretionary Decision Making and Refugees: A Sociological exploration of transformations in the nature of legal authority", 1993 - Law 511 Research Project, Macquarie University

[11] Pierre-Michel Fontaine, the Relevance of the 1951 Geneva Convention Relating to the Status of Refugees.

[12] Micheal Walzer, Spheres of Justice. 1983, p49

[13] op.cit, Stewart Motha

[14] Ronald Dworkin, A Matter of Principle, 11 (1985).

[15] Ibid p33

[16] Cunliffe and Another v. The Commonwealth of Australia (1994) 182 CLR 272

[17] Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh(1995) 128 ALR 353

[18] Cunliffe and Another v. The Commonwealth of Australia(1994) 182 CLR 272

[19] Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh(1995) 128 ALR 353

[20] Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1

[21] According to the Court they were non-citizens because ' citizens can not be imprisoned for an administrative reason, in times of peace, but non-citizens can.'

[22] Musgrove v Chen Teong Toy [1891] AC 272 at 283.

[23] Cunliffe and Another v. The Commonwealth of Australia (1994) 182 CLR 272:

[24] Cunliffe and Another v. The Commonwealth of Australia (1994) 182 CLR 272. Issue was whether implied freedom was not limited to communications for the purposes of the political processes. The plaintiffs sued the Commonwealth in the High Court for a declaration that Pt 2A of the Migration Act 1958 (Cth) was invalid. Part 2A established a registration system for persons who gave immigration assistance or who made immigration representations. A person who was not so registered was prohibited from giving immigration assistance unless he or she came within certain exceptions.

[25] Held per Brennan, Dawson, Toohey and McHugh JJ: that Pt 2A was wholly valid as a law with respect to aliens within s51(xix) of the Commonwealth Constitution. The registration imposed by 2A upon the giving of immigration assistance to aliens or the making of immigration representations on their behalf did not interfere with any freedom of communication implied by the Constitution; per Brennan J on the ground that they did not infringe the freedom of political discussion that is necessary to maintain the system of representative democracy; per Dawson J on the ground that they were not incompatible with the requirements of the system of representative government with the Constitution ordains; per Toohey J on the ground that they did not constitute an undue restriction on the implied freedom of political communication; and per McHugh J on the ground that the Constitution contained no guarantee of freedom of expression to which they were obnoxious.

[26] (1996) 135 ALR 583

[27] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 136 ALR 481

[28] And the use of changed words was a means of showing a change in rules. Interestingly, Justice Gaudron was not a member of the Court for this case. Her discussion in Teoh may suggest that she would not have been supportive of such a rule-book approach to judicial review.