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The Review of Migration Decisions — a Story of Borders and Orders

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The Review of Migration Decisions — a Story of Borders and Orders The Review of Migration Decisions — A Story of Borders and Orders Joyce Kok-Won Chia Submitted for the qualification of Doctor of Philosophy, University College London (UCL) November 2008 1 Declaration I, Joyce Kok-Won Chia, confirm that the work presented in this thesis is my own. Where information has been derived from other sources, I confirm that this has been indicated in the thesis. Signed: Dated: 2 Abstract In the last decade in Australia and the United Kingdom, the review of immigration decisions in tribunals and courts has been marked by constitutional conflict between the executive and the judiciary; a crisis of confidence; and continual change. This thesis explores what this tumultuous story of immigration review tells us about the law — as a social practice, as an institution, and as a linguistic genre — in these jurisdictions, in these times. This thesis argues that the story of immigration review is explained best not through the conventional story of a battle between the executive and the judiciary, but rather as a story of the fundamental challenges immigration poses to the social, institutional, ideological and linguistic dimensions of law, and of the attempt by judges and the legal community to defend their different conceptions of the legitimacy of the law from those challenges, in different ways. Four fundamental challenges are identified. First, immigration challenges the coherence of the legal framework, as it exposes tensions within and between the different legal regimes. Second, the more reductive language used in legal contexts competes badly with more complex, and more socially powerful, discourses about immigration. Third, immigration challenges the capacity of law to perform the functions of resolving disputes and regulating behaviour. Fourth, immigration challenges our deepest concepts of legality. The thesis examines these challenges, and the responses they provoke, by drawing on the insights of migration studies, contemporary political philosophy, language and the law, and regulatory theory, as well as examining important case law in detail. In doing so, it aims both to capture the story of immigration review more fully, and to illuminate some of the complexities of, and limits to, the contemporary social practice of law. 3 Acknowledgements For the inspiration and encouragement to pursue this thesis, thanks must go first to Justices Kenny and North of the Federal Court of Australia. I thank also the continuing support of my referees, Derek and Anne McDougall, and Glenn Patmore. For the absolutely vital financial support, thanks must go to the Rae and Edith Bennett Foundation at the University of Melbourne; University College London; and the UK government. For providing intellectual guidance and encouragement, and occasional emotional support, I thank Professor Jeffrey Jowell, my original primary supervisor; Professor Rick Rawlings, my primary supervisor; and especially Colm O’Cinneide, who provided much more guidance, time and support than any student could possibly hope for from a secondary supervisor. Thank you also to Sylvia Lough and Ann Tucker of UCL, for all their administrative and emotional support. For the emotional support and the good times, I thank of course all my family and friends. Thank you to my new friends, especially my colleagues at UCL, of whom Tomoko Ishikawa (and her family), Arif Jamal, Gijsbert ter Kuile, Sharon Kaur, Viky Martzoukou, Shin Wei Ng, and Ivana Radaçic deserve a special mention. Thanks also to my old friends, especially those in Australia whose birthdays, weddings, and babies I have missed over the last three years. Thank you to Suzan Davies, a cherished friend both in Melbourne and in London. Thank you to my parents, for migrating, for investing in my education, and for everything else in between; and to my sister Jessica for being who she is. 4 Table of Contents List of Tables and Figures .............................................................................................8 Abbreviations ................................................................................................................9 Update.......................................................................................................................... 11 Introduction .................................................................................................................14 1 Definitions ............................................................................................................17 1.1 The law ..........................................................................................................17 1.2 Immigration, migration and refugees.........................................................17 2 Jurisdictions......................................................................................................... 18 3 Orientation of thesis............................................................................................ 18 4 Outline................................................................................................................. 19 Chapter 1 — The story of immigration review.............................................................21 1 Introduction..........................................................................................................21 2 The development of immigration review..............................................................21 2.1 The prehistory of immigration review ....................................................... 22 2.2 The brave new world ................................................................................... 23 2.3 The ‘model’ of immigration review............................................................. 26 3 The story of immigration review .........................................................................29 3.1 Battles with the Bench................................................................................. 29 3.1.1 War of words...............................................................................................................30 3.1.2 Executive defiance........................................................................................................31 3.2 Crisis of confidence ......................................................................................33 3.3 From there to here: Reforms to the immigration review system.............. 35 3.3.1 Structural change .......................................................................................................36 3.3.2 Changes to jurisdiction...............................................................................................40 3.3.3 Changes to access .......................................................................................................44 4 Conclusion ........................................................................................................... 55 Chapter 2 — The legal constellation .......................................................................... 57 1 Introduction......................................................................................................... 57 2 Immigration law ..................................................................................................59 3 Citizenship and nationality law ..........................................................................68 4 Refugee law .......................................................................................................... 72 5 Constitutional law ............................................................................................... 75 6 Common law principles of judicial review...........................................................78 7 Human rights law................................................................................................80 8 EU law..................................................................................................................83 9 Conclusion ...........................................................................................................88 Chapter 3 — Confronting the challenges ...................................................................92 1 Introduction.........................................................................................................92 2 The ouster clause sagas.......................................................................................93 2.1 The Australian ouster clause....................................................................... 93 2.2 The UK ouster clause................................................................................... 95 2.3 Explaining ‘success’ ..................................................................................... 97 2.3.1 The ‘constitutional outrage’.......................................................................................97 2.3.2 The rule of law redux ................................................................................................. 98 2.3.3 Constitutional design ................................................................................................102 2.4 Qualified celebrations................................................................................102 3 Exporting the border.......................................................................................... 104 3.1 The Tampa case...........................................................................................104 3.2 The Prague Airport case .............................................................................107
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