- DIMIA (Department of Immigration and Multicultural and Indigenous Affairs) Unauthorised Arrivals by Air a11d Sea Fact Sheet No 81 (29 August 2001) at 1, www.immi.gov.au/facts/81boats.htm#2. Note that Mary Crock points to statistical research suggesting much overestimation by the Australian population about the number of unauthorised arrivals: Crock Mary Immigration and Refugee Law in Australia Federation Press Sydney 1998 p 163.
- See, for example, Hathaway James C and Neve R Alexander ‘Making International Refugee Law Relevant Again: A Proposal for Collectivised and Solution-Oriented Protection’ (1997) 10 Harvard Human Rights Journal 115; and North A M and Bhuta Nehal ‘The Future of Protection—the Role of the Judge’ (2001) 15 Georgetown Immigration Law Journal/479 at 480.
- Howard has recently been quoted as saying ‘We have an absolute right to decide who comes into this country and there is concern inside the Government, and I suspect in the broader community, that we are fast reaching the stage of losing that right’: Endurbury Kep ‘Immigrants: case for the third umpire’ The Australian (Sydney) 30 August 2001, p 11.
- For a brief overview of these, see Bhuta Nehal ‘Legal Thuggery: Australia's New Refugee Laws’ (2001) 2001.8 Farrago 26.
- Border Protection (Validation and Enforcement Powers) Act 2001 (Cth), s 7A.
- Migration Act 1958 (Cth), ss 198–99.
- Migration Legislation (Amendment) Bill No 6 2001 (Cth). This Bill narrows the meaning of ‘persecution’ which has previously attached to the definition of ‘refugee’ contained in the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150, (entered into force 22 April 1954), art 1A(2) (Refugee Convention).
- Certain grounds for judicial review had already been removed by operation of the Migration Act 1958 (Cth), s 476. Previous attempts had also been made to ouster the jurisdiction of the Federal and High Courts of Australia—see, for example, Migration Legislation Amendment Bill (No 5) 1997 (Cth). This Bill revealed the Immigration Minister's dissatisfaction with Pt 8 of the Migration Act 1958 (Cth), which already limited the Federal Court's review powers: Crock above note 1 at 293.
- Judicial Review Bill 1998 (Cth). The Refugee Review Tribunal is the merits review body for refugee matters. For a general description see Crock above note 1 at 258.
- If refused immigration clearance, unauthorised arrivals can apply for a choice of two kinds of substantive visa. The first are border visas, which cover inadvertent failure to obtain a valid visa: Migration Regulations 1994 (Cth), Sch 1, cl 1305. The second are the protection visas: Migration Regulations 1994 (Cth), Sch 2, Subclass 051 Bridging visa. See Burn Jennifer and Reich Anne Immigration Kit (6th ed) Federation Press Sydney 2001 at 579;Taylor Savitri ‘Should Unauthorised Arrivals in Australia have Free Access to Advice and Assistance?' (2000) 6(1) Australian Journal of Human Rights 34 at 34. Technically, there are two further classes; one of which is open to Norfolk Island residents and one open to New Zealand residents: Crock above note 1 at 54.
- Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150, (entered into force 22 April 1954), art 1A(2).
- See, for example, Parrish Michael ‘Redefining the Refugee: The Universal Declaration of Human Rights as a Basis for Refugee Protection’ (2000) 22 Cardozo Law Review 223 at 223; Schuck Peter H ‘Refugee Burden-Sharing: A Modest Proposal’ (1997) 22 Yale Journal of International Law 243.
- Mitropoulos Angela ‘The Barbed End of Human Rights’ (2001) 164 Overland 51 at 53.
- North and Bhuta above note 2 at 483.
- See, for example, Nafziger James AR ‘The General Admission of Aliens Under International Law’ (1983) 77 American Journal of International Law 804. Nafziger discusses various rationales for exclusion, which see exclusion as part of effective self-preservation (at 817), an abstract question of exclusive domestic jurisdiction (at 821), or in his view, ‘nativism and more specific fears that aliens will displace local workers, contribute to social tensions, or impose an economic burden on the state’ (at 804). For an overview of moral foundations for exclusion, see Thompson Janna ‘Justifying Immigration Restrictions’ (1996) 5(3) Res Publica 1.
- Department of Immigration and Multicultural Affairs Protecting the Border 2000 (2000) www.immi.gov.au/illegals/border2000/border03.htm, although in 2001 for the first time there were more boat than air arrivals, as air arrivals in 1999–2000 decreased by 20 per cent from the 1998–1999 figure.
- Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967). Australia acceded on 13 December 1973, art 1(2).
- Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150, (entered into force 22 April 1954), art 1A(2).
- Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, (1984) 23 ILM 1027 (entered into force 26 June 1987), art 3. Changes noted in 24 ILM 535 (1985). Australia lodged instrument of ratification on 8 August 1989 and became a party 30 days later (Convention Against Torture).
- International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171, 6 ILM 368 (entered into force 23 March 1976). Exposing a person by refoulement to a ‘real risk’ of a violation of an ICCPR right is itself violating the right in question. See, for example, Airs G T (on behalf of her husband T) V Australia, Communication No 706/1996, UN Doc CCPR/C/61/D/706/1996 (4 November 1997), paras 6.8, 6.9. See also Taylor Savitri ‘Australia's Implementation of its Non-refoulement Obligations under the Convention Against Torture and Other Cruel Inhuman or Degreading Treatment or Punishment and the International Covenant on Civil and Political Rights’ (1994) 17(2) University of New South Wales Law Journal 432 at 444–447.
- Goodwin-Gill Guy The Refugee in International Law (2nd ed) Oxford University Press Oxford 1996 p 123. See also Goodwin-Gill Guy ‘The Haitian Refoulement Case: A Comment’ (1994) 6(1) International Journal of Refugee Law 103 at 103.
- Addendum to the Report of UNHCR, UN General Assembly Official Records, 32nd session, Supplement No 12A, UN Doc A/32/12/Addl (1977), para 53(6)(e). Cited in UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Refugee Convention and 1967 Protocol relating to the Status of Refugees (revised ed, 1988), para 192. See also Taylor Savitri ‘Rethinking Australia's Practice of ‘Turning Around’ Unauthorised Arrivals: The Case for Good Faith Implementation of Australia's Protection Obligations’ (1999) 11(1) Pacifica Review 43 at 44.
- Migration Act 1958 (Cth), s 166.
- Nelly Siegmund (First Assistant Secretary, Border Control and Compliance Division, Department of Immigration and Multicultural and Indigenous Affairs) letter to author, 26 October 2001. Due to the nature of this process, obtaining material about its specifics is difficult. As an administrative process which is obviously not subject to review, no decisions, nor reasons for them, are available. Further, staff at DIMIA who were approached for an interview consistently declined, citing job security as a motivation.
- See chart on p 61, DIMIA's 'Entry Task Force Procedural Flow Chart’.
- Susan Pullar, [email protected], personal correspondence with author, 31 October 2001. Pullar identifies that in some instances although preliminary interviews will be conducted at the airport, they may be relocated to a detention facility.
- Contra Taylor above note 22 at 47. Taylor reports that the content of interviews is related over the telephone and a decision is made on that basis.
- See chart on p 61, DIMIA's 'Entry Task Force Procedural Flow Chart’.
- Crock above note 1 at 129.
- Taylor above note 22 at 47. Susan Pullar, [email protected], personal correspondence with author, 31 October 2001.
- See chart on p 61, DIMIA's 'Entry Task Force Procedural Flow Chart’.
- Taylor above note 22 at 47.
- Nelly Siegmund (First Assistant Secretary, Border Control and Compliance Division, Department of Immigration and Multicultural and Indigenous Affairs) letter to author, 26 October 2001.
- Aluwhalia Pal Politics and Post-Colonial Theory Routledge London 2001 p 68.
- Dauvergne Catherine ‘Confronting Chaos: Migration Law Responds to Images of Disorder’ (1999) 5 Res Publica 23 at 34.
- Bhabha Homi The Location of Culture Routledge London 1994 p 1.
- See, for example, Ahluwalia above note 34 at 109.
- Bhabha above note 36 at 147.
- As above at 142.
- As above at 145
- See chart on p 61, DIMIA's 'Entry Task Force Procedural Flow Chart’.
- Derrida Jacques ‘Force of Law: the “mystical foundation of authority”’ (1990) 11 Cardozo Law Review 920 at 941.
- Douzinas Costas and Warrington Ronnie Justice Miscarried: Ethics, Aesthetics and the Law Harvester Wheatsheaf London 1994 p 212.
- As above at 213.
- Papastergiadis Nikos The Turbulence of Migration Polity Press Cambridge 2000 p 108.
- As above at 109. For a discussion of the savage in this context, see Fitzpatrick Peter Modernism and the Grounds of Law Cambridge University of Press Cambridge 2001 at 28.
- Here, an ambivalence of potency or power is intended to interact with the more usual (and related) sense of ambivalence to mean ambivalence in identity between self and other, particular and universal, and the sense in which Kyambi uses these terms to show how the nation disavows its ambivalence the better to exclude the refugee: Kyambi Sarah ‘National Identity and Ambivalence in Refugee Law’ (chapter of unpublished PhD thesis, Birkbeck College UK, copy on file with author) at 14.
- See, for example, Fitzpatrick above note 46 at 122.
- Bhabha above note 36 at 70.
- Derrida above note 42 at 929.
- Papastergiadis above note 45 at 107.
- Bhabha above note 36 at 147.
- Aluwhalia above note 34 at 109.
- As above at 109.
- Douzinas and Warrington above note 43 at 147.
- See, for example, Dauvergne above note 35 at 26; Dillon Michael ‘Another Justice’ (1999) 27(2) Political Theory 155.
- See, for example, Rubenstein Kim ‘Citizenship in Australia: unscrambling its meaning’ (1995) Melbourne University Law Review 503.
- Australian Citizenship Act 1948 (Cth) s 10.
- Dauvergne above note 35 at 27 mentions the case of Fang v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 583, in which it was held that the migration legislation had ‘negated the common law requirements of natural justice and procedural fairness in some dealings with non-citizens’.
- See, for example, Crock above note 1 at 272. Note also the tendency to ouster judicial review in the migration jurisdiction, culminating most recently in the Judicial Review Bill 1998 (Cth), and key provisions built into the Migration Act itself, such as a requirement that all applications for judicial review be lodged within 28 days of the merits review decision to be appealed: Migration Act 1958 (Cth), s 478.
- Fleming Gabriel ‘Review of Migration Decision-Making—Rival Goals and Values’ (1999) 10 Public Law Review 131 at 135–6. Fleming indicates that procedural fairness is sacrificed in place of efficiency, which is elevated to an end in itself.
- Douzinas and Warrington above note 43 at 232.
- As above at 139.
- As above at 227.
- As above at 227.
- See, for example, Papastergiadis above note 45 at 14.
- Kumar Amitava Passport Photos University of California Press Berkeley 2000 p ix.
- ‘Nader’ and Bowen ‘Nader’, and Bowen Tricia, 'Nader's Diary' (2001) 164 Overland 23 at 23.
- Kumar above note 67 at 3.
- Papastergiadis above note 45 at 13.
- Kumar above note 67 at 22.
- Douzinas and Warrington above note 43 at 142.
- Bhabha above note 36 at 148. See also the detailed discussion in Fitzpatrick above note 46 at 111–145, especially at 125–129.
- Dillon above note 56 at 157.
- Bhabha above note 36 at 149 (original emphasis).
- Anderson Benedict Imagined Communities: Reflections on the Origin and Spread of Nationalism Verso London 1983.
- Papastergiadis above note 45 at 13.
- ABC TV National Press Club 7 November (2001).
- That is, historical in the lay sense; ‘pedagogical’ in Bhabha's sense of the ‘object’ of history.
- Papastergiadis above note 45 at 182.
- As above at 185.
- Szorenyi Anna ‘Economies of Speech and Silence’ (2001) 164 Overland 41. Szorenvi reports that ABC TV's Four Corners featured close-up footage of the mouths of refugees repeating this phrase. She adds that when these particular refugees were deported they had their mouths covered with packing tape and were later forcibly sedated.
- As above.
- Foucault Michel ‘The Dangerous Individual’ in Lawrence Kritzman (ed) Michel Foucault: Politics Philosophy Culture Routledge London 1988 at 125–6.
- Szorenyi above note 82 at 42.
- Taylor above note 22 at 50.
- As above at 50.
- Dauvergne above note 35 at 37.
- Szorenyi above note 82 at 43. Taylor above note 22 at 48 also raises the possibility that the refugee might be suffering from post-traumatic stress disorder: subconsciously avoiding thoughts, activities and situations which might make them remember their ordeal.
- Taylor above note 22 at 48.
- Szorenyi above note 82 at 41.
- Taylor above note 10 at 48.
- Nelly Siegmund (First Assistant Secretary, Border Control and Compliance Division, Department of Immigration and Multicultural and Indigenous Affairs) letter to author, 26 October 2001; Taylor above note 22 at 48.
- In the English context, Kyambi reports some other trends. A common reason offered for not raising instances of abuse and torture in an interview is ‘he never asked’. Thus, the domination of the refugee by the institutional questioning process is made perfectly transparent. See Kyambi Sarah ‘Refugee Law and Inclusion: The Exclusivity of Universality’ (chapter of unpublished PhD thesis, Birkbeck College UK, copy on file with author) at 28.
- Taylor above note 22 at 49.
- Douzinas and Warrington above note 43 at 223.
- Kyambi above note 47 at 29–30.
- Szorenyi above note 82 at 41.
- Taylor above note 22 at 47.
- As above at 47. Kyambi addresses other strategies which have emerged from the questioning patterns in the equivalent process in England. Of particular concern is the manipulation of the refugee's desire not to become a burden on the state, by leading them to emphasise their desire to work. This achieved, they can be recast as ‘economic refugees’ and immediately removed. See Kyambi above note 94 at 28.
- Szorenyi above note 82 at 42. Szorenyi is quoting Foucault, from the History of Sexuality.
- As above at 43. Szorenyi is quick to point out that many refugees are articulate, but are forced to identify themselves with the abuse and shame put upon them.
- Spivak G C ‘Can the Subaltern Speak?’ in Nelson C and Grossberg L (eds) Marxism and the interpretation of Culture University of Illinois Press Chicago 1988 at 71. Spivak elaborates that since the subaltern's identity is difference, there can be no subaltern subject that can know and represent itself. Elsewhere, Spivak has clarified her sense of the subaltern. Bart Moore-Gilbert has quoted her as saying: ‘subalternity is the name I borrow for the space out of any serious touch with the logic of capitalism or socialism’: Moore-Gilbert Bart Postcolonial Theory Verso London 1997 p 101. She goes on to ask that subalternity not be confused with ‘unorganised labour, women as such, the proletariat, the colonised…’ amongst other things. And amongst those other things, she asks it not be confused with ‘political refugees’. But it is the force of the (il)legal identity ascribed to the political (or other) refugee which displaces them from the touch of these or any logics (other than the self-justificatory logic of the sovereign border), and thereby creates for them a subaltern space. This is the case even if they may otherwise be imbricated in the communities which traffic in these logics.
- Papastergiadis above note 45 at 223.
- Douzinas and Warrington above note 43 at 224.
- As above at 224.
- This idea of the incommensurable is a starting point for discourses on justice. See Derrida above note 42 at 929.
- For a complex exposition of this posturing, see Fitzpatrick above note 46 at 77–9.
- Dauvergne above note 35 at 34.
- Douzinas and Warrington above note 43 at 230.
- Kumar above note 67 at 7.
- See Bhabha above note 36; Papastergiadis above note 45 at 193.
- Mohantv Chandra Talpade ‘Under Western Eyes: Feminist Scholarship and Colonial Discourses’ Boundary 2 12(3), 13(1), 1984.
- Spivak Gavatri Chakravorty ‘The Problem of Cultural Self-Representation’ (a discussion with Walter Adamson) in Harasvm Sarah The Post-Colonial Critic: Interviews, Strategies, Dialogues Routledge London 1990 p 50 at 58.
- Douzinas and Warrington above note 43 at 231.
- As above at 164.
- See Appendix A.
- Taylor above note 22 at 49.
- As above at 49. Taylor raises concerns that the summaries of interviews risk inaccuracy: of four interview summaries checked against the tape by the Australian National Audit Office, one ‘did not include what may have been relevant information on the tape’.
- North and Bhuta above note 2 at 483.
- Douzinas and Warrington above note 43 at 162.
- Derrida above note 42 at 949.
- See also Kyambi above note 94 at 10. Kyambi is of course drawing on Derrida (Derrida Jacques The Other Heading: Reflections on Today's Europe Indiana University Press Bloomington 1992 at 40–1). Derrida is committed to the destruction of this Hegelian sublation in relation to the other.
- Douzinas and Warrington above note 43 at 141.
- As above at 142. See also the detailed discussion of this point in Kyambi above note 94. Kvambi uses the concept of exemplar to explicate the universalisation of the particular.
- Douzinas and Warrington above note 43 at 136.
- Foucault Michel ‘Governmentality’ in G Burchill et al (eds) The Foucault F.ffect Harvester Wheatsheaf London 1991 at 95.
- Douzinas and Warrington above note 43 at 144.
- As above at 145.
- As above at 167.
- Spivak Gavatri Chakravorty ‘Questions of Multi-culturalism’ (a discussion with Sneja Gunew) in Harasym Sarah The Post-Colonial Critic: Interviews, Strategies, Dialogues Routledge London 1990 at 65.
- Douzinas and Warrington above note 43 at 147.
- See, for example, Joppke Christian Challenge to the Nation State Oxford University Press Oxford 1998 at 110.
- Mitropoulos above note 13 at 52.
- See, for example, Endurbury above note 3 at 11.
- Universal Declaration of Human Rights, GA Res 217A, 3 UN GAOR (183rd plen mtg), UN Doc A/Res/217A (1948) (UDHR); see Parrish above note 12 at 262. These key provisions are, of course, those which nation-states are ‘most able to guarantee’.
- Douzinas and Warrington above note 43 at 149.
- Rosewarne Stuart ‘Globalisation: the New Migration’ (2001) 164 Overland 29 at 31. ‘Rightless’ meaning with an unenforceable claim to right on the terms of a sovereign who might have articulable and unarticulable interests in denying that right.
- Dauvergne above note 35 at 31. See also Kyambi above note 94 at 33, who argues that human rights discourse simply replicates the restrictions inherent in refugee law which are the topic of this paper.
- See also Dillon above note 56 at 155.
- Ahluwalia above note 34 at 123, quoting Partha Chatterjee.
- Dillon above note 56 at 155.
- Kafka Franz Stories 1904–1924 (trans J A Underwood) Futura London 1983 pp 194–5.
- Kvambi above note 94 at 12.
- See generally Dillon above note 56.
- Douzinas and Warrington above note 43 at 160–1. Of course this is premised upon Levinas' philosophy of the other.
- Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150, (entered into force 22 April 1954), art 1A(2).
- Derrida above note 42 at 961.
- As above at 955. In his words, ‘who pretends to be just by economising on anxiety?'.
- Kumar above note 67 at 21.
- Derrida above note 42 at 959 (emphasis added).
- As above at 963.
- As above at 963.
- Douzinas and Warrington above note 43 at 182. Note that Dillon above note 56 at 168, is more pessimistic about achieving justice on these terms:The refugee precipitates a fundamental crisis in the juridical self-satisfaction of the political traditionalist as much as she or he does in the hubristic epistemological claims of the modern political cogito. Neither the epistemic realism of cognition nor the phronesis of an established tradition is capable of rendering her justice… the bearings of her world have suffered the disaster that is the original meaning of that term, and she is living through a worldlessness which is itself a direct function of modern political existence.
- Dillon above note 56 at 166.
- Consider the previously mentioned discursive positioning of the refugee as ‘illegal’ and therefore already judged.
Australian Feminist Law Journal
Volume 18, 2003 - Issue 1