A Search for Rights: Judicial and Administrative Responses to Migration and Refugee Cases

Abstract

This chapter charts domestic proceedings in relation to the Commonwealth’s powers to regulate migration. It examines the human rights framework in Australia, noting that there are few limits on Parliament’s ability to enact legislation that is inconsistent with Australia’s international obligations, and maps the long history of judicial review of decisions under the Migration Act 1958 (Cth). Administrative decision-making is also addressed, with an eye to seminal early cases in the Administrative Appeals Tribunal (AAT) that featured review of exercises of power under the Migration Act; the recent amalgamation of the sui generis Migration and Refugee Review Tribunals into the AAT; and the establishment of a new ‘fast-track’ mechanism for reviewing certain asylum applications. The chapter also discusses Parliamentary efforts to limit judicial consideration of Australia’s international obligations in the process of statutory interpretation, and to restrict judicial review. It examines the courts’ responses to these developments, particularly with respect to incursions on core judicial functions, and proffers some conclusions on the ultimate strength of judicial and administrative remedies under Australian law in migration and refugee cases.