This chapter focuses on the role of nationality laws in relation to marriage migration to South Korea (‘the Republic of Korea’ or ‘Korea’) and Taiwan (‘the Republic of China’) in manufacturing gendered nationality and statelessness. It illustrates how gender-based statelessness serves the interests of the ‘nation-state’ by excluding some female marriage migrants from membership of the nation. This is because nationality laws confer a status on those marriage migrants who advance the project of nation building by reversing falling birth rates. It argues that discriminatory nationality laws in Korea and Taiwan reflect traditional East Asian framings of nationality based on cultural and ethnic patriarchal lineage. The chapter demonstrates how laws and policies on nationality, in both Korea and Taiwan, both include and exclude the marriage migrant on the basis of gender, nationality, race, class, culture and ethnicity; it thereby exposes the causes of statelessness in the context of marriage migration. The chapter applies a construction of gender as based on power relations involving the state, social structures and individuals in the context of nationality laws in Korea and Taiwan.

Australia achieved international notoriety through its bold handling of the MV Tampa incident in August 2001 and the subsequent creation of the Pacific Plan, which involved extraterritorial processing of asylum seekers. The Tampa incident and its aftermath is possibly the most vivid illustration in this book of the role of law in developing state refugee policy which is contrary to the spirit of the 1951 Convention relating to the Status of Refugees (Refugee Convention) (if not international law). Effectively, this Plan situated the asylum seekers in a legal limbo outside the Australian legal system and prevented them from seeking asylum in Australia. Importantly, the arrangements for the Plan were achieved through the passage of legislation by compliant legislators. This included a law excising parts of Australian territory from the ‘migration zone’ as defined in the Migration Act 1958 (Cth) (Migration Act).

Through the Pacific Plan, Australia successfully denied the asylum seekers access to the national legal system and outsourced its responsibilities under the Refugee Convention. It will be shown in this chapter that the Pacific Plan was the natural outgrowth of restrictive and deterrent policies to refugees which had developed over the previous decade and which demonstrated the power of the executive to drive a legislative agenda to keep asylum seekers apart from the Australian community.

The first part of this chapter describes the history and development of legal responses to refugees and asylum seekers in Australia (including the legislative framework and the constitutional basis of this jurisdiction).

• The method and extent of incorporation of international law obligations – are they directly or indirectly incorporated into general migration legislation or into a purpose-specific statute? Are all relevant treaty obligations specifically incorporated? Have treaty obligations been modified by legislation?

• Is a distinction made in incorporating legislation between asylum seekers and refugees, that is between those who arrive spontaneously and those who come under a resettlement programme? In relation to those who arrive spontaneously, are distinctions made according to the route taken or the method of arrival? Are the international law obligations incorporated equally for all classes of persons?

• Which institution is responsible for the initial decision as to status? Does the legislation confer additional discretions or personal residuary powers on an administrative decision maker which qualify the international law obligations?

• What is the institutional framework for decision making after the initial decision as to status? That is, is it administrative or adjudicative, judicial or quasi-judicial?

• What are the opportunities for appeal or judicial review in this institutional framework? What proportion of initial applications proceed to judicial review? What type of issues are heard on judicial review? What are the outcomes of each category of issue on judicial review?

• What is the response of the executive government to the outcomes from judicial review? That is, does it modify previous policy or practices, or increase the restrictiveness of its approach in response to significant judicial determinations?

• What is the constitutional basis of jurisdiction in this context? Is that jurisdiction an entrenched/plenary jurisdiction? Is primacy accorded to constitutional rights as distinct from statutory rights in the national legal system?

• […]

This book uses the idea of the ‘Rule of Law’ to illuminate how the legal systems in five industrialized countries which share a common legal heritage – namely Canada, the USA, Australia, New Zealand and the UK – have responded to issues about the rights and status of refugees and asylum seekers. This is a particularly important issue in its own right because, as explained in Chapter 1, the rule of law, which is the cornerstone of the concept of democracy and of modern legal systems, is challenged by its application to refugees and asylum seekers. It is also important for a second reason. The rights of refugees are defined in international law, but are subject to state discretion as to their implementation in national legal systems. As the chapters in this book reveal, implementation is being done in such a way as to deny refugees the rights which are due to them under the international regime of refugee protection. Thus the international rule of law is also being eroded by implementation at the national level.

This raises the issue of the interconnectedness of the national and the international rule of law. Should the rule of law be regarded only as a ‘national enterprise’, as Audrey Macklin queries? How can coherency between the national and the international rule of law be achieved? These are issues addressed in this book.

The purpose of this chapter is to explain some meanings of the rule of law, and how they fit with ideas about the operation of a legal system comprising three independent arms of government. This will assist with an evaluation of the role of law in this contested area of refugee and asylum law and policy. In particular, this chapter introduces the reader to Ronald Dworkin's idea of ‘law as integrity’ as one tool in such an evaluation.

The focus of this book upon the rule of law arises from an overall concern with how national legal responses to refugees and asylum seekers have developed, and what they reveal about the operation of the rule of law. The way that the rule of law operates at the national level in relation to refugees and asylum seekers determines the extent to which their rights in international law (especially, as explained in the previous chapter, the right to seek asylum and the right against refoulement) are respected. That is, it is important for practical reasons, as it has been left to state parties to international treaties to acknowledge and to implement the rights and status of asylum seekers and refugees. As explained in the previous chapter, the international rule of law is imperfect, and it is open to individual states to interpret and implement it according to their own needs and understanding. This book is concerned about the integrity or coherency of ‘dualist’ legal systems.

This book explores national legal responses to issues raised by refugees and asylum seekers and the rule of law. The issue of the rights and status of the asylum seeker in the legal system raises fundamental questions about how to maintain the ‘integrity’ of the rule of law when it is under challenge, and the role of the state to protect individuals who are not its ‘nationals’. The basic argument in this book is that the way that the rule of law operates at the national level in relation to refugees and asylum seekers in the jurisdictions examined is denying them access to their rights under international law. In particular, the twin precepts of refugee protection – the right to seek asylum and the right against non-refoulement – are under threat.

A comparison of the five jurisdictions – namely Canada, the USA, Australia, New Zealand and the UK – tells some interesting stories. Although they share a common law heritage, majority language and colonial past, and a tendency to borrow ideas for responses from each other, there are differences in each jurisdiction in the way that the Refugee Convention is received, which influence the precise way in which each legal system responds to issues about asylum seekers and refugees. Yet, despite those differences, there are broadly similar patterns in the response of these receiving countries to asylum seekers and refugees over the last decade.

One common response is to exclude asylum seekers and refugees from access to the legal system.