Judicial Protections of Migrant Rights: The Case of Australia

• In Event: Migrant Rights: Practices at the Local, National, and Multilateral Levels

Abstract

Immigration is a policy area that has been judicialized in many countries around the world. This phenomenon positions courts to play an important role in protecting migrant rights, but the volume of litigation can be overwhelming. How do courts cope? More specifically, how do they balance their finite resources and agenda space against the imperative to deliver justice to members of an especially vulnerable group? This paper focuses on Australia, where, over the last two decades, immigration cases have come to consume an increasing proportion of the federal judiciary’s agenda. Litigants who lose in the Federal Court frequently apply to the High Court of Australia for leave to appeal their cases. Although the number of immigration cases decided by the High Court has risen, the Court has denied leave to appeal to hundreds more cases concerning immigration. Focusing on immigration cases between 2004 and 2017, this paper examines the process through which the High Court selects the cases that it will hear on appeal. It addresses four main questions. First, how many cases concerning migrant rights has the Court decided each year? Second, how many cases concerning migrant rights has the Court annually declined to hear on appeal? Third, what factors increase the likelihood that the Court will hear a case concerning migrant rights? And finally, based on the answers to the foregoing questions, what are the normative implications for the judicial protection of migrant rights in Australia?

Author

• Rhonda L. Evans, University of Texas, Austin