Confronting chaos: Migration law responds to images of disorder

Res Publica

Volumn 5, Issue 1, 1999, Pages 23-45

  Dauvergne, Catherine ^a  

^a UNIVERSITY OF SYDNEY   (Australia)

Author keywords

Australia; Identity; Liberalism; Migration law; Nation; Refugee law

Indexed keywords

EID: 0037934891     PISSN: 13564765     EISSN: 15728692     Source Type: Journal    
DOI: None     Document Type: Article

References (101)

1. A. Paliwala, "Law and the Constitution of the 'Immigrant' in Europe: a United Kingdom Policy Perspective", in P. Fitzpatrick, ed., Nationalism, Racism and the Rule of Law (Aldershot U.K. and Brookfield U.S.A.: Dartmouth Press, 1995), 74-96, p. 77.
2. See also A. Dummett and A. Nicol, Subjects, Citizens, Aliens and Others: Nationality and Immigration Law (London: Weidenfeld and Nicolson, 1990).
3. As discussed in V. Hampton, "Immigration, Identity and Justice", in W.F. Schwartz, ed., Justice in Immigration (Cambridge: Cambridge University Press, 1995), 267-93.
4. This argument is made in different ways by Patricia Tuitt in False Images: Law's Construction of the Refugee (London and East Haven Connecticut: Pluto Press, 1996)
5. and by James Hathaway in "Preface", in J. Hathaway, ed., Reconceiving International Refugee Law (The Hague, Boston and London: Martinus Nijhoff, 1997), xvii-xxix. What the arguments have in common is that both assert that international refugee law in its present state is more about ensuring that refugees are kept out of the Western nations which dominate the international norm-building apparatus than about providing assistance to people in need.
6. Headlines in the Daily Telegraph in September 1998 included: "Refugee camps in parks are rejected" (P.Newton, September 21, 1998);
7. "Failure to deport man 'led to rapes' " (S. Clough, September 25, 1998);
8. "Lawyers tout for asylum-seekers trade" (September 27, 1998);
9. and "Refugees may be sent to barracks" (September 25, 1998). This last article states: "Although there are genuine refugees fleeing the fighting in Kosovo, Kate Hoey, the junior Home Office minister, said the greatest concern was over the number of Albanian 'economic migrants' posing as Kosovans. Across Europe there was a rising number of bogus claims, with many states running out of accommodation for genuine cases."
10. Living up to Canada's humanitarian tradition is an explicit objective of the Canadian Immigration Act R.S.C. 1985, c. I-2, s.3. The notion of overcoming legal barriers or adverse decisions on the basis of "humanitarian or compassionate" grounds is woven into the Canadian law at various junctures: see for example ss. 70,77 and 114.
11. Evocative examples of this include the Israel Law of Return and the German commitment to allow entry to ethnic Germans (discussed by J.L. Coleman and S.K. Harding, "Citizenship, the Demands of Justice, and the Moral Relevance of Political Borders", in Schwartz, ed., Immigration Act R.S.C. op. cit., 18-62).
12. This is one of the methodologies employed by M. Kline, "Complicating the Ideology of Motherhood: Child Welfare Law and First Nation Women", Queen's Law Journal 18 (1993), 306-42.
13. In recent years, this choice of date to commemorate the Australian nation has attracted criticism. Re-enactments of the first Colonial Governor walking ashore and planting the British flag are slowly being replaced by celebrations of aboriginal heritage.
14. S. Brawley, The White Peril: Foreign Relations and Asian Immigration to Australia and North America 1919-1978 (Sydney: University of New South Wales Press, 1995) offers an excellent examination of the politics behind this policy.
15. See also J.H. Garens, "Nationalism and the Exclusion of Immigrants: Lessons from Australian Immigration Policy", in M. Gibney, ed., Open Borders? Closed Societies? The Ethical and Political Issues (New York: Greenwood Press, 1988), 43-60.
16. Migration Act 1958 (Cth). Under the constitution of the Commonwealth of Australia, immigration and emigration are matters reserved to the legislative competence of the national government (s. 51(xxvii)).
17. Michael Walzer's formulation of the role of migration law in liberal societies is the most well known and detailed: Spheres of Justice: A Defense of Pluralism and Equality (New York: Basic Books, 1983), Chapter Two: Membership.
18. See also Joseph Garens' various articles, especially "Aliens and Citizens: The Case for Open Borders", The Review of Politics 49 (1987), 251-73;
19. "Membership and Morality: Admission to Citizenship in Liberal Democratic States", in W.R. Brubaker, ed., op. cit., Immigration and the Politics of Citizenship in Europe and North America (Lanham, Maryland: University Press of America, 1989).
20. "Refugees and the Limits of Obligation", Public Affairs Quarterly 6 (1992), 31-414;
21. "Who Belongs? Theoretical and Legal Questions About Birthright Citizenship in the United States", University of Toronto Law Journal 37 (1987), 413-4-3;
22. D. Galloway, "Liberalism, Globalism and Immigration", Queen's Law Journal 18 (1993), 266-305;
23. and "Strangers and Members: Lquality in an Immigration Setting", Canadian Journal of Law and Jurisprudence 1 (1994), 149-72
24. ; and my "Beyond Justice: The Conse-quences of Liberalism for Immigration Law", Canadian Journal of Law and Jurisprudence 10 (1997), 323-412.
25. J. Rawls, "Justice as Fairness: Political not Metaphysical", Philosophy and Public Affairs 14 (1985), 223-51.
26. Compare J. Rawls, idem, A Theory of Justice (Cambridge, MA: The Belknap Press of Harvard University Press, 1971);
27. R. Dworkin, Law's Empire (Cambridge MA: Harvard University Press, 1986);
28. M. Walzer, Law's Empire op. cit.
29. This is the point that I argue in "Beyond Justice", Law's Empire op. cit., 11. My views are countered by those of Donald Galloway, who argues that liberal theory supports an argument for closed borders to the community, and by Joseph Garens, who argues that liberal theory supports an argument for open borders to the community.
30. This point is, of course, contentious, and I have discussed my position fully in the paper noted above. Liberal theorists are generally in agreement that a certain number of refugees should be admitted. I discuss this consensus in a paper entitled "Amorality and Humanitarianism in Immigration Law", forthcoming, Osgoode Hall Law Journal. The current public debate in Australia is primarily about immigrants, not refugees; and to the extent that it is not it should be, since the annual migration intake is composed primarily of immigrants.
31. Fang and Others v. Minister for Immigration and Ethnic Affairs and Another (1996) 135 ALR 583 (F.C.A.). The appellants had arrived by boat in Australia. They had verbally sought refugee status but had not completed the correct forms.
32. This view is frequently aired in editorial discussions of Australia's immigration policies. See for example D. Campbell, "Just how big a nation should we aim to be?" The Australian, 15 October 1996, 13.
33. 1951 Convention Relating to the Status of Refugees (189 U.N.T.S. 2545) as amended by the 1967 Protocol on the Convention Definition (606 U.N.T.S. 8791), especially Article 33.
34. There are no international conventions which grant a right of entry on a humanitarian basis at this time. While a right to family life or the International Convention on the Rights of the Child may ground some arguments that certain individuals ought to be exempted from border control, these arguments have either not been accepted or have not been accepted as rights claims. When exceptions to prohibitions on entry are made on family or child considerations, they are usually made as humanitarian exceptions, rather than in conformity with immigration rules (see the Australian High Court's ruling in Minister for Immigration and Ethnic Affairs v. Teoh (1995) 128 A.L.R. 218). James Haulaway's argument in Reconceiving International Refugee Law, op. cit., also addresses this point. There is a liberal consensus that some humanitarian admissions are morally required, but the consensus is closely limited, can be overridden by vaguely defined national need and amounts in form to a non-enforceable "good samaritan-ness" rather than a "rights"-based claim, let alone a duty.
35. Canada admits a much higher number of refugees per year than Australia, but uses a similar system of a pre-determined annual quota. Refugee admissions in the United States have been strongly influenced by American super-power politics. This was especially true during the Cold War: see M. Gibney and M. Stohl, "Human Rights and U.S. Refugee Policy", in M. Gibney, ed., Open Borders? Closed Societies? The Ethical and Political Issues (New York: Greenwood Press, 1988), 151-65.
36. Acts Interpretation Act 1901 (Cth) s. 15AA. On making this point in a public presentation, I was challenged by a migration law practitioner who told me that s.4 was almost never important "in a real sense", as it did not arise frequently in litigation. This observation furthers my argument. Section 4 is not frequently contested, the purpose of the Act is assumed and the role of national identity is implicit. While formally, legalistically and literally, it should constrain interpretations of the Act - and while it represents the public face of the Act - its meaning is regarded as so settled that a rhetoric of national interest slips into the jurisprudence without directly linking its source to this formal authority and without examining its meaning.
37. Water Conservation and Irrigation Commission (N.S.W.) v. Browning (1947) 74 CLR 492 at 505.
38. A non-judicial body which is theoretically independent of the department is charged with merits review of migration decisions. Minister for Immigration and Ethnic Affairs andAnor v. Tan Jia Xin (1994) 69 ALJR 8 at 9.
39. This point is also implicit in the more celebrated case testing the validity of this legislation, Chu Kheng Lim and Ors v. Minister for Immigration, Local Government and Ethnic Affairs andAnor (1992) 176 CLR 1.
40. We can easily image a statement such as "it is not, of course, in the national interest to make bad laws". While we can all agree with this, it tells us nothing about what either national interest or bad laws are.
41. This argument relies on a presumption that liberalism is the hegemonic political and moral discourse in the prosperous Western nations which most intending migrants target. While liberalism is increasingly under challenge, no other ideology which could form the basis of broad societal consensus has yet emerged. This argument would also hold true for any political theoretical position which starts from the assumption of a closed community, the traditional presumption of political theorists both within and outside the liberal tradition. I examine this presumption, and discuss of the claim that follows, in detail in "Beyond Justice: The Consequences of Liberalism for Immigration Law", CLR op. cit.
42. This is true for immigrants rather than for refugees. The division between the two is supported in liberal theory. Most admissions to Australia are in the former category. Target numbers for 1997-98 were 68,000 in the immigrant or non-humanitarian programme and 12,000 humanitarian admissions (of which 6000 are to be refugees).
43. Migration Act 1958 (Cth) s. 96.
44. K. Cronin, "Concerning Equity and Control: A Look at the New Immigration Law", Law Society Journal 28 (1990), 50-51.
45. Immigration law is characterised generally as an area with a very high degree of administrative discretion: see S.H. Legomsky, Immigration and the Judiciary: Law and Politics in Britain and America (Oxford: Clarendon Press, 1987).
46. K. Cronin, "A Culture of Control: An Overview of Immigration Policy Making", in J. Jupp and M. Kabala, eds., The Politics of Australian Immigration (Canberra: Australian Government Printing Service, 1993), 83-104. While Australian migration law is a an extreme example, I argue that migration law performs this function in all liberal democracies: the distinction is one of degree.
47. Some of these theoretical insights appear in works which can be considered constitutive theories of law and society (e.g. Alan Hunt, Explorations in Law and Society: Toward a Constitutive Theory of Law (London and New York: Routledge 1993)). Although Hunt does not expressly address a link between law and identity, his constitutive theory of law provides a detailed examination of and justification for the processes explored in work linking law and identity. Others appear in analyses of particular legal issues or constructed identities.
48. (Examples include: After Identity: A Reader in Law and Culture D. Danielson and K. Engle, eds. (New York: Routledge, 1995);
49. N. lyer, "Categorical Denials; Equality Rights and the Shaping of Social Identity", Queen's Law Journal 19 (1993), 179-207;
50. G. Torres and K. Milun, "Translating YONNONDIO by Precedent and Evidence: The Mashpee Indian Case", Duke Law Journal (1990), 625-59;
51. G. Torres and K. Milun idem., "Symposium: Eegal Eoci and Places in the Heart: Community and Identity in Sociolegal Studies", Law and Society Review 28 (1994), 971-1265.)
52. "Identities", Yale Journal of Law and the Humanities 3 (1991), 97-130.
53. M. Minow and G. Bellow, eds., Law Stories (Ann Arbor: University of Michigan Press, 1996).
54. Making All the Difference: Inclusion, Exclusion and the American Law (Ithaca: Cornell University Press, 1990).
55. Making All the Difference: Inclusion, Exclusion and the American Law Ibid., 3:
56. cf., "When we identify one thing as unlike the others, we are dividing the world; we use our language to exclude, to distinguish - to discriminate." - Making All the Difference: Inclusion, Exclusion and the American Law ibid.
57. This portion of the analysis draws directly on Minow, Making AU the Difference, op. cit.
58. Making AU the Difference Ibid., 10 and passim.
59. Admissions based on "family reunion" in Australia involve primarily allowing an Australian citizen or permanent resident to have their heterosexual spouse join them in Australia. Of the 37,240 admissions in the family category in 1996-97, 22,130 were spouses and 3000 were fiancés. Dependent children accounted for 2200 and parents for 7580. For the 1997-98 planning year, the parent category was capped at 1000. One implication of this is that heterosexual partners will make up an even greater proportion of the family category. A category named "interdependent relationships" provides a code word for family reunion of same sex spouses: 400 visas in this category were granted in 1996-97.
60. That is, migrants who are perceived to be able to make an immediate contribution to the Australian economy. The principal categories include those who already have a job offer in Australia, those with a significant sum to invest and entrepreneurs willing to start a business.
61. Of the 12,000 places in the program for 1997-98, 6000 are for people meeting the internationally agreed definition of "refugee", the rest for others in need who do not come within this definition.
62. These two limitations are common migration law screens in many nations.
63. This narrowness is countered by the periodic creation of special categories of humanitarian admissions beyond the specific refugee group. The narrow definition of refugee is used in Europe, the United States, and Canada as well as in Australia, with parallel results.
64. Remarks by Hon Phillip Ruddock at the Immigrant Justice Conference, Sydney, June 6, 1997
65. and at the Australian Institute of Administrative Law Twilight Seminar, Canberra, October 30, 1997. Recent reform to the Migration Act has aimed at curbing the extent to which onshore refugee claimants exercise review provisions by introducing a privative clause limiting access to the courts and a post-decision fee of S1000 for unsuccessful applications to the Refugee Review Tribunal, a non-judicial merits review body. The former is not yet passed into law.
66. Applicant A and Another v. Minister for Immigration and Ethnic Affairs and Another (1997) 142 A.L.R. 331 (H.C.A.)
67. Fang, A.L.R. op. cit., 625.
68. This aspect of the credibility issue is central to the still on-going Ozmanian case, where the claimant alleges that Australian diplomatic inquiries have jeopardised his and his family's safety in Armenia: Minister for Immigration and Multicultural Affairs and Anon v. Tosn Ozmanian [1996] 1017 FCA 1;
69. Ozmanian v. Minister for Immigration and Multicultural Affairs [1997] 256 FCA AustLii databases.
70. Migration Act ss 177, 178.
71. The Department of Immigration and Multicultural Affairs states that "[AJbout 3030 people have arrived in Australia by small boats since November 1989, and 77 children have subsequently been born to those people. As at June 18 1998, 2376 of the 3030 arrivals had left Australia to return home or to travel to other countries; 541 had been granted permanent residence status as refugees, and 75 had been granted permanent residence status on other humanitarian grounds." - Department of Immigration and Multicultural Affairs, "Fact Sheet: Key Facts in Immigration", 1998, available on the Department Website, www.immi.gov.au/facts.
72. Fiona Carruthers, "Refugees Sail for New Zealand Shores", Australian, 17th Nov, 1997.
73. This image is used by M. Kline, "Complicating the Ideology of Motherhood: Child Welfare Law and First Nation Women", Australian op. cit., 315. In this analysis, Kline analyses how a submerged and assumed ideological representation of the 'good mother' underlies legal constructions of First Nations mothers as 'bad mothers'.
74. Since 1988 there have been 37 separate Acts of Parliament amending the 1958 Migration Act.
75. One comprehensive discussion is presented by M. Rosenfeld, "The Identity of the Constitutional Subject", Cardozo Law Review 16 (1995), 1049-1109. Rosenfeld explicity acknowledges the Hegelian and Lacanian currents in his work. In many law and identity studies, these influences are more distant, or are best described as parallels only.
76. M. Rosenfeld, "The Identity of the Constitutional Subject", Cardozo Law Review 16 (1995), 1049-1109. Ibid.
77. K. Engle, "Female Subjects of Public International Law: Human Rights and the Exotic Other Female", in D. Danielson and K. Engle, eds., Cardozo Law Review op. cit., 210-28.
78. This theme appears in various of Minow's writings, e.g. "Identities", Cardozo Law Review op. cit.,
79. and in "Not Only For Myself: Identity, Politics, and Eaw", Oregon Law Review 75 (1996), 647-98.
80. Writing of a guardianship application concerning a child with special needs, Minow writes: "The judge, the lawyers, and the parties in effect showed how an individual like Philip has an identity only in relation to others and how the description of his situation depends upon who is offering the observations." - Making AU the Difference, op. cit., 351.
81. In Law Stories, Minow and Bellow's edited collection, op. cit.,
82. Anthony Alfieri recounts how as a lawyer he reconstructs his client's story of being an impoverished welfare recipient struggling against a bewildering bureaucracy to a story of statutory eligibility and state-sanctioned victimisation of economically dependent women and children: "Welfare Stories", Law Stories op. cit., 31-4-9.
83. "Identities", Law Stories op. cit., 112.
84. Migration law is more important than citizenship law for the question of who can become an Australian citizen. Migration law's detailed criteria regulating permanent residency are the most significant barrier to full membership in the polity. Any permanent resident who has lived in Australia for two years can apply for citizenship and most will be granted it: see Australian Citizenship Act 1948 (Cth), ss. 12-16.
85. For the 1997-98 financial year, Australia aimed to admit 68,000 immigrants, 6000 refugees and 6000 individuals in the "other humanitarian" category. For my analysis, this last category can be combined with refugees.
86. The level of humanitarian admissions which liberalism requires is completely unclear, as I argue in "Amorality and Humanitarianism", op. cit.
87. The connection remains, nonetheless. I discuss this in my Ph.D. thesis, particularly in Chapter Four, "The Mirror of Humanitarianism".
88. These two broad categories of migration are the most common among the prosperous Western nations which have migration programmes: see Jules L. Coleman and Sarah K. Harding, "Citizenship, the Demands of Justice, and the Moral Relevance of Political Borders", in Warren F. Schwartz, ed., op. cit. This demonstrates my point that migration law serves the national interest in liberal democratic polities, of which Australia is one example among many. The specific ways in which the economic and family categories are constituted within these nations reveal certain differing constructions of national identity.
89. Migration Act 1958 ss. 92-96.
90. This statement can be nuanced in several ways. Of course, many countries which are not predominantly 'white' do have significant English-speaking populations. In many places English is a language common to the élite and the educated. This serves only to exacerbate the overall effects of the scheme, and has particular gender effects. In statistical totals, the number of men admitted in the skilled categories is only slightly higher than the number of women. This is in part because the law allows dependents of a primary applicant to be admitted if they are in good health and do not have a criminal record. The effect on women of being admitted as 'dependent spouses' is a topic for separate research.
91. Department of Immigration and Multicultural Affairs, "Fact Sheet", op. cit. The other examples suggested are musicians, artists and designers, "all of whom are internationally recognised as outstanding in their field".
92. Emphatically not spouses.
93. Three hundred is the target number for 1997-98: compare note 38.
94. See note 39. In addition to the effects of capping, the balance of family test now requires that more than half of the parents' children live in Australia - and some must be Australian citizens - to permit sponsorship.
95. Verissimo v. Minister for Immigration and Multicultural Affairs [1997] 1030 FCA (2 September 1997) Branson J.
96. The present Immigration Minister is clearly aware of this. In a recent speech to the Victorian Press Club (Melbourne, 26 March 1998) he states: "How we respond to the humanitarian crises that continue to plague the world defines us as a nation. How we act on the global stage conveys to others what we are. We are a nation that can be proud of its record of responding to refugee and humanitarian problems."
97. Addressing an international audience at the Regional Tripartite Consultations on Resettlement (Canberra, 21 May 1998) the Minister stated: "As is well known, per capita, Australia maintains one of the largest refugee resettlement programs in the world. Since the second World War, over half a million refugees and displaced people have been resettled here, and this year we will resettle 12,000 people in Australia." Similar statements appear frequently in Ministerial speeches and departmental documentation.
98. See note 72.
99. The Minister of Immigration and Multicultural Affairs opened his 1998 "Australia Day Citizenship Message" by stating that "Australia is a nation that has been built on migrants, whether they be our indigenous population arriving here 40-thousand years ago, or First Fleeters arriving on our shores two centuries ago."
100. Multiculturalism is much overrated, as the government is quick to assure those who cry that the population is becoming "Asianised". In 1996-97 "Europe and the Former USSR" was the largest source region for permanent migrants, accounting for 25.5% of arrivals - Department of Immigration and Multicultural Affairs, "Fact Sheet", op. cit.
101. My point here is similar to the observation that women who meet male norms have had considerable success in "catching-up" with men in professional workplaces while the norms of those workplaces have shifted little from their male-dominated pedigree. While the surface of Australian society looks more diverse these days, the identity-patterns fostered by migration law help ensure that a more traditional view of "Australianness" is imposed on new-looking faces.