The review of migration decisions a story of borders and orders
In the last decade in Australia and the United Kingdom, the review of immigration decisions in tribunals and courts has been marked by constitutional conflict between the executive and the judiciary; a crisis of confidence; and continual change. This thesis explores what this tumultuous story of immigration review tells us about the law as a social practice, as an institution, and as a linguistic genre in these jurisdictions, in these times. This thesis argues that the story of immigration review is explained best not through the conventional story of a battle between the executive and the judiciary, but rather as a story of the fundamental challenges immigration poses to the social, institutional, ideological and linguistic dimensions of law, and of the attempt by judges and the legal community to defend their different conceptions of the legitimacy of the law from those challenges, in different ways. Four fundamental challenges are identified. First, immigration challenges the coherence of the legal framework, as it exposes tensions within and between the different legal regimes. Second, the more reductive language used in legal contexts competes badly with more complex, and more socially powerful, discourses about immigration. Third, immigration challenges the capacity of law to perform the functions of resolving disputes and regulating behaviour. Fourth, immigration challenges our deepest concepts of legality. The thesis examines these challenges, and the responses they provoke, by drawing on the insights of migration studies, contemporary political philosophy, language and the law, and regulatory theory, as well as examining important case law in detail. In doing so, it aims both to capture the story of immigration review more fully, and to illuminate some of the complexities of, and limits to, the contemporary social practice of law.