[1] Savitri Taylor, "Marginalising the International Law Claims of On-Shore Asylum seekers in Pursuit of Immigration Control and Foreign Policy Objectives", [1994], Sydney Law Review, Volume 16, pp32-71. The Protocol was drafted to remove the geographic and time limitations of the earlier instrument, the incorporation of which reflected the post-World War II context in which the Convention was framed. Otherwise, it retains the same language as that used in the Convention.
[2] There is a well established mechanism, incorporated in the 1951 UN Refugee Convention, which can be applied to facilitate the repatriation of people who were recognized as refugees but who no longer need international protection. Commonly known as the 'cessation clause', this mechanism is based on the principle that people should enjoy refugee status only for as long as it is absolutely necessary, and that such status can be withdrawn when fundamental and durable changes have taken place in their country of origin. During the past 20 years, UNHCR and states have applied this principle to refugees from 15 different countries where peace has been restored and where democratic systems of government have been established.
[3] Refugee Council of Australia position paper - see http://www.refugeecouncil.org.au/position01032000.htm
[4] The TPV gives access only to Special Benefits through Centrelink for which a range of eligibility criteria apply; no family reunion rights (including reunion with spouse and children); limited access to DIMA funded settlement services; access to school education subject to state policy (full fees imposed for tertiary education); permission to work, but ability to find employment influenced by temporary nature of visa; and no automatic right of return if the visa holder leaves the country.
[5] Refugee Council of Australia position paper - see http://www.refugeecouncil.org.au/position01032000.htm
[6] ibid
[7] ibid
[8] ibid
[9] Goodwin-Gill G.S, The Refugee in International Law (Oxford Clarendon Press, 1983 at 55), as Extracted in Hyndman Patricia, "Australian Immigration Law and Procedures Pertaining to the Admission of Refugees", McGill Law Journal, Volume 33 1988, p716, at 720
[10] Stewart Motha, "Discretionary Decision Making and Refugees: A Sociological exploration of transformations in the nature of legal authority", 1993 - Law 511 Research Project, Macquarie University
[11] Pierre-Michel Fontaine, the Relevance of the 1951 Geneva Convention Relating to the Status of Refugees.
[12] Micheal Walzer, Spheres of Justice. 1983, p49
[13] op.cit, Stewart Motha
[14] Ronald Dworkin, A Matter of Principle, 11 (1985).
[15] Ibid p33
[16] Cunliffe and Another v. The Commonwealth of Australia (1994) 182 CLR 272
[17] Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh(1995) 128 ALR 353
[18] Cunliffe and Another v. The Commonwealth of Australia(1994) 182 CLR 272
[19] Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh(1995) 128 ALR 353
[20] Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1
[21] According to the Court they were non-citizens because ' citizens can not be imprisoned for an administrative reason, in times of peace, but non-citizens can.'
[22] Musgrove v Chen Teong Toy [1891] AC 272 at 283.
[23] Cunliffe and Another v. The Commonwealth of Australia (1994) 182 CLR 272:
[24] Cunliffe and Another v. The Commonwealth of Australia (1994) 182 CLR 272. Issue was whether implied freedom was not limited to communications for the purposes of the political processes. The plaintiffs sued the Commonwealth in the High Court for a declaration that Pt 2A of the Migration Act 1958 (Cth) was invalid. Part 2A established a registration system for persons who gave immigration assistance or who made immigration representations. A person who was not so registered was prohibited from giving immigration assistance unless he or she came within certain exceptions.
[25] Held per Brennan, Dawson, Toohey and McHugh JJ: that Pt 2A was wholly valid as a law with respect to aliens within s51(xix) of the Commonwealth Constitution. The registration imposed by 2A upon the giving of immigration assistance to aliens or the making of immigration representations on their behalf did not interfere with any freedom of communication implied by the Constitution; per Brennan J on the ground that they did not infringe the freedom of political discussion that is necessary to maintain the system of representative democracy; per Dawson J on the ground that they were not incompatible with the requirements of the system of representative government with the Constitution ordains; per Toohey J on the ground that they did not constitute an undue restriction on the implied freedom of political communication; and per McHugh J on the ground that the Constitution contained no guarantee of freedom of expression to which they were obnoxious.
[26] (1996) 135 ALR 583
[27] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 136 ALR 481
[28] And the use of changed words was a means of showing a change in rules. Interestingly, Justice Gaudron was not a member of the Court for this case. Her discussion in Teoh may suggest that she would not have been supportive of such a rule-book approach to judicial review.