Apart from Us or a Part of Us? Immigrants' Rights, Public Opinion and the Rule of Law
Mary Elizabeth Crock
University of Sydney - Faculty of Law
June 16, 2009
International Journal of Refugee Law, Vol. 10, pp. 49-76, 1998
Sydney Law School Research Paper No. 09/52
On 24 February 1997, the High Court handed down its long-awaited ruling in the case of Applicants A and B v Minister for Immigration and Ethnic Affairs. The applicants were a married couple from a remote village in the Peoples' Republic of China (PRC) who came to Australia by boat in December 1993. The wife was heavily pregnant and gave birth to the couple's first child the day after arrival. The couple claimed that one or both of them would be forcibly sterilised if returned to China because of the prevailing 'one couple, one child policy.
This article uses the case of Applicants A and B to explore the extent to which cases involving migrants and refugees are being treated differently from those in which the human rights of Australian citizens are affected. The author attempts to identify some of the external factors that may have influenced the Court. The study acknowledges that the High Court's ruling can be analysed on a purely doctrinal level so as to place it within the matrix of international jurisprudence relating to the interpretation of the 1951 Convention. However, the very fact that the Court divided so evenly in its interpretation of the phrase 'particular social group' suggests that the case cannot be explained purely in terms of text or jurisprudential trend.
The second part of the article examines the recent history of refugee determinations in Australia, outlining the changes that have occurred in both the treatment of refugee claimants and in public attitudes towards and sympathy for these people. The case of Applicants A and B is then analysed in its jurisprudential context by comparing the reasoning of the majority and minority judges with the rulings made in other jurisdictions. There follows a critique of both the decision and of the factors that at the very least find resonance in the majority's reasoning. The final part of the paper looks at the totality of the challenge presented by fugitives of China's one child policy and at the options available to the government to meet this challenge.
Number of Pages in PDF File: 29
Keywords: immigration, refugees, citizens, human rights, one child policy
JEL Classification: K10, 30, K33
Date posted: June 16, 2009 ; Last revised: June 23, 2009