Dauvergne, Catherine --- "Citizenship, Migration Laws and Women: Gendering Permanent Residency Statistics" [2000] MelbULawRw 11; (2000) 24(2) Melbourne University Law Review 280

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[This article argues that migration law and citizenship law form a dichotomy, which masks the inequalities of citizenship law. Issues identified by the well-established strands of feminist critiques of citizenship are clearly displayed in Australian migration law. This paper reanalyses the statistical data describing settler arrivals to Australia over the past five years and demonstrates that migration patterns are highly gendered. This rereading of the statistics also confirms the diversity of women’s experiences by showing that in the family, economic and humanitarian migration categories, women’s experiences diverge. In each category they differ from the experiences of men. The ‘citizen’ as a male-contoured role, enshrining a value of independence and suppressing difference, is imprinted in migration law. As permanent residency status establishes the pool of potential new citizens, migration law does the dirty work in establishing membership of the nation, freeing citizenship law to the lofty realm of liberal formal equality and neutrality.]

I INTRODUCTION

For at least 15 years now, citizenship has been back in vogue.[1] Discourses of citizenship have become increasingly important in academic and political circles. Much of the new citizenship scholarship has originated in Europe, fuelled by the emergence of post-Soviet states and by the strengthening of the European Union as an alternative unit with which individuals can identify.[2] In Canada new citizenship legislation has been proposed with the aim of articulating a more comprehensive vision of the values associated with Canadian citizenship.[3] Citizenship was named as one of the Australian Research Council’s key themes in 1998 and was the topic of a major international conference in 1999.[4] The public debate over the Australian constitutional referendum in 1999 had much in common with citizenship discourse elsewhere. The concept of citizenship was directly related to important elements of the debate, such as the question of who the appropriate head of state for Australia should be. Feminist scholars have taken a prominent place in the renewed discussions of citizenship both in Australia and worldwide. While feminist commentary, of course, spans a range of philosophical and political traditions, it is united in regarding citizenship discourse with appropriate concern, wary of the universalising quality of the ‘citizen’ category and the power of such an overtly political label to reinforce the public–private divide.[5]

This article contributes to the feminist critique of citizenship by focusing on the relationship between migration law and citizenship law. These two intertwined legal frameworks regulate membership of the Australian community,[6] as they do in the other major nations of immigration — the United States and Canada. I argue that a feminist critique of citizenship law must include a detailed appreciation of the relationship between migration laws and citizenship laws. In the New World’s nations of immigration,[7] it is migration law rather than citizenship law that forms the effective barrier to membership in the community. This means that the differences between the rights and duties of citizens and those of permanent residents are often not significant.[8] The legal frameworks regulating migration and citizenship run in parallel, acting together as the laws of community membership. The relationship between citizenship law and migration law mirrors that of other dichotomies such as mind and body, public and private.

The citizenship law–migration law dichotomy is examined in this article in four steps. I turn first to presenting an overview of feminist analyses of citizenship, drawing attention to those elements most apposite to a critique of migration law. I then consider how migration law functions as a vehicle for encoding the nation’s priorities and values and how gender has been treated to date in critical accounts of migration law. In Part IV, I analyse the statistical data on settlers arriving in Australia between 1994 and 1999. Consideration of this data reveals that migration to Australia is highly gendered, in ways that are not apparent when the statistics are aggregated. The numbers also reinforce our understanding of the diversity of women’s experiences: rather than revealing one story, the statistics reveal different stories in different categories of migration, as well as stories that are racialised and sexualised in different ways. Gendering permanent residency statistics does not tell us that women have one common experience in entering Australia, but rather that women’s range of experiences differs from men’s. The effects of migration law provisions on women revealed by these statistics reflect the central concerns of citizenship theory. In Part V of the article, I draw on these insights to explain the migration law–citizenship law dichotomy, arguing that the bodily preoccupations of migration law reserve for citizenship law the liberal discourse of equality and universality. Migration law does the dirty work, and merits attention accordingly.

II FEMINIST ANALYSES OF CITIZENSHIP

The distinction I draw here between citizenship law and migration law is important in legal discourses and legally-centred critiques. Lawyers tend to treat discussions of citizenship as starting and ending with citizenship laws. Within legal analysis, therefore, the texts of citizenship law can too easily be taken as the extent, or the most important part, of the basis of citizenship. As Margaret Thornton emphasises, ‘liberal legalism has displayed very little interest in citizenship, other than in policing the boundaries. Its concern has been with whether an individual is “in” or “not in” the relevant national community.’[9] Many theorists of citizenship, however, focus on the broader concept of membership in the polity. They therefore regard citizenship law and migration law, along with other legal frameworks such as social security law and labour law, as elements in a legal framework which provide an avenue for assessing the entitlements and responsibilities of members and the degrees of membership in the polity.[10] The narrow distinction between citizenship law and migration law is most important to lawyers[11] and the concerns raised by both halves of this dichotomy are addressed by citizenship theory. It is, nonetheless, important to split the concerns apart and to consider which aspects of citizenship theory are addressed within the narrow framework of citizenship law and which are addressed by migration law (and to note that some are addressed by neither), since legal discourses hold important sway in terms of individuals’ relationships with the state as a legal entity. That is, the legal discourse of citizenship is important even though it does not capture or represent the richness of the concept of citizenship. Furthermore, analysing the concerns of citizenship law and migration law separately reveals how the relationship between the two legal texts replicates the public–private dichotomy. Understanding how this dichotomy functions in this area of the law builds on the established tradition of feminist critique of citizenship and of law.

Given the lawyer’s narrow understanding of citizenship, it is not surprising that analysis of the concept is richest in disciplines with which law is intertwined: political theory, sociology, history, social theory. The concept of citizenship escapes succinct definition,[12] but its elements include: membership of a community, political participation in the community, the rights and duties attached to membership, and a concept of equality. Of these, membership itself has a logical priority of concern. Once members of the community can be identified, questions of participation, entitlements and responsibilities are enlivened, along with questions as to why formal equality between members has not been sufficient on its own to achieve social equality.[13] Migration law is on its surface concerned with membership, but because it sets up a hierarchy of membership categories it also has vital linkages with rights, duties, equality and participation. Three overlapping elements in feminist critiques of citizenship are crucial at the interface of citizenship law and migration law. They are: that citizenship is a male-contoured concept firmly anchored in the public sphere; that citizenship suppresses and ignores difference; and that independence is a core value of citizenship.

Each of these strands of critique is important in analysing the citizenship law–migration law dichotomy. Identifying them as three elements serves this end but is at the same time artificial. An analysis starting at any of these points necessarily encounters and engages each of the others. Similarly, there is no monolithic ‘feminist’ position asserting a set relationship between these themes. The concept of citizenship is anchored in the public sphere and is therefore necessarily constructed on a model of traditional male participation in the public sphere and the norm of formal equality accompanying that model. In her seminal analysis of the patriarchal welfare state, Carole Pateman states that ‘[t]he public world of universal citizenship is an association of free and equal individuals, a sphere of property, rights and contract — and of men, who interact as formally equal citizens.’[14] She asserts that the central criterion for citizenship has been independence[15] and that this criterion has been defined on the basis of masculine attributes and abilities.[16] In the contemporary employment state, independence is gauged by holding a job in the public/market sphere and earning a wage to support a family in the private/family sphere. In this analysis, of course, women involved in private, caring, home-centred work are ‘dependants’. Summarising Pateman’s argument for development in her own analysis of work and welfare, Bettina Cass writes:

The independence that is the central citizenship value is the economic status that comes with secure, full-time employment at an adequate wage, the type of employment most elusive for women. While women, including married women with children, are increasingly members of the full-time work force, their inclusion in the work force is still of ‘precarious legitimacy’.[18] Furthermore, for women who are in full-time employment the gendered division of time impairs their ability to act in citizenship roles when citizenship is defined on a model of public participation.[19]

Iris Marion Young argues that the function of independence as the ‘paragon virtue of liberal citizenship’ relegates dependent people and their usually female caretakers to an inferior status, that of second-class citizens.[20] She unmasks the argument that the intact heterosexual two-parent family is best for children (as future citizens) by demonstrating that it ignores the reality of gender inequality and male domination.[21] The poverty that is the greatest threat to children in female-headed households must be understood as a consequence of poor wages and poor work for women and of the state’s failure to value caring work. These factors all contribute to the construction of those involved in caring work as second-class citizens. Young argues that independence should be reconfigured as autonomy and distinguished from self-sufficiency if equal citizenship is to be promoted.

As is evident in the analyses of both Pateman and Young, the centrality of independence in discourses of citizenship carries with it the image of the heterosexual family in which women and children fill the role of ‘dependants’. The same picture of the family is replicated in migration law, where the migrant’s dependent status is encoded succinctly on some visa categories, and where ‘family’ is defined by reference to this model. The universalising power of citizenship discourse, however, means that the independence–dependence dichotomy is submerged, and those who are dependants disappear from view. The perceived opposite of ‘citizen’ is not ‘dependant’ but, rather, ‘alien’. Alien is beyond the space of the community where questions of equality and justice are relevant. This is the essence of the universalising power of citizenship discourse.

The basic building block of membership in the modern liberal legal state is the equality of all citizens. All differences between individuals and groups are subsumed in this equality. The formal equality of citizenship rights — of voting, or speech, or political participation — masks differences and inequalities that lie outside this most narrow view of the public sphere and conditions entry into it. All citizens are equal, but only in the formal ways relevant to citizenship. The ‘participation’ model of citizenship considers not only citizenship rights but also duties, and analyses citizenship as a mode of community participation.[22] The focus on participation reconfigures citizenship as a cluster of duties and participatory experiences, and is therefore broader. However, whether the public sphere is configured narrowly or broadly,[23] it is still conceived of as an arena in which one casts particularity and difference aside to enter in pursuit of some version of the common good. Referring to both rights-based and duties-based accounts of citizenship, Young states:

For migrants the suppression of difference represented by citizenship discourses is literal. To become a citizen of a new state is to erase a previous bond of attachment, previous commitments, previous identities.[25] Feminist theory’s critique of the universalising elements of citizenship assists in understanding the migration law–citizenship law dichotomy. Dividing the elements of the legal framework according to this dichotomy reveals that the nation is attentive to individuality and particularism when it seeks to exclude, but suppresses these as a basis for inclusion and admission to the innermost circle of belonging represented by citizenship.

These elements of the feminist critique of citizenship are central to my project of describing the migration law–citizenship law relationship within a feminist framework. The next step in this analysis is to consider the legal relationship between migration law and citizenship law and to look at the role of migration law in the constitution of the nation.

III MIGRATION, NATION AND GENDER

In the world’s principal nations of immigration[26] it is migration law rather than citizenship law which forms the most significant barrier to full membership of the nation. This proposition has two aspects: first, that migration law is the more significant legal hurdle; and second, that citizenship can be formally equated with full membership of the nation. The two are linked by the concept of permanent residency. Admission to the status of permanent resident is a complex process. One must first apply as either a family, economic or humanitarian migrant.[27] That is, one must first fit within a category that the nation has identified as corresponding to its needs.[28] The close tailoring of the categories to national need is reflected in Australian public debates about migration and the recent assertions by the Minister of Immigration, Phillip Ruddock; the former Premier of Victoria, Jeff Kennett; and the Business Council of Australia that expanding the annual migrant intake across categories will be good for the national economy.[29] The shift since 1996 to increase economic category migration while decreasing family category migration has also been a reflection of the Government’s view of what the nation most needs.[30]

The hurdle of finding a category into which to fit one’s migration application is only the first step in the process. An application for permanent residency involves rendering a detailed account of oneself. This includes presenting police clearances from any place one has lived for more than a year and submitting oneself to physical examination by a state-certified doctor.[31] For applicants in some categories, detailed financial records must also be presented.[32] These procedures take place outside Australia.[33] Upon obtaining a visa and arriving at the border, an intending permanent resident may be interviewed again.[34]

The criteria for becoming a citizen are less rigorous. In order to be granted a certificate of Australian citizenship, an individual must be 18 years old,[35] have a basic knowledge of the English language,[36] be of good character,[37] have an understanding of the obligations of citizenship,[38] and have lived in Australia as a permanent resident for two years.[39] The standards set here are minimal. English language is assessed in an interview for which the Department of Immigration and Multicultural Affairs allots 30 minutes. There is no set test or standard for English language skills — the officer assesses whether the applicant understands the rights and duties of citizenship and the citizenship oath.[40] The good character provisions are usually considered to be met on the basis of the police clearances submitted to obtain permanent residency, provided the applicant does not have a criminal record in Australia. This criterion does offer a significant opportunity for discretionary decision-making, but the opportunity is rarely taken up. The responsibilities and privileges of being a citizen are set out in half a column of the Department of Immigration and Multicultural Affairs’ citizenship information package, and are defined in the most narrow and legalistic form.[41] The most difficult criterion to meet is that of being a permanent resident for two years. This criterion ensures that all potential citizens have been selected and screened in the rigorous immigration process. An application for citizenship costs significantly less than one for permanent residence, requires significantly less documentation, and does not require a physical examination.[42]

For these reasons, it is the text of the migration law, rather than of citizenship law, that forms the effective barrier to entry into the community. In fact, in the conditions of day-to-day life, there is little to distinguish a permanent resident from an Australian citizen. Permanent residents are entitled to the benefits of the Australian welfare state, most of which are available immediately after arrival.[43] The areas of employment closed to permanent residents are narrow.[44] Furthermore, permanent residents seeking restricted public service employment have the option of taking out citizenship. Outside of political participation, the most significant difference between permanent residency and citizenship may well be that permanent residents convicted of serious criminal offences could be subject to deportation proceedings.[45]

One conclusion to be drawn from this is that citizenship law is not the primary barrier to participation in the community. When we speak of citizenship as membership we minimise and risk ignoring the legal barriers outside citizenship law. The flip side of this conclusion, however, is that citizenship is still the fullest version of membership. The areas reserved for citizens only — those relevant to everyone, not just serious criminals and aspiring civil servants — are in the narrowly defined public sphere: voting and political participation. This underscores the feminist critique of citizenship as a concept that does not take account of differences and inequities in the private sphere, and operates in a realm where all are equal because of their equal power to vote. The different roles of migration law and citizenship law in erecting the boundary of the community show us citizenship at its basest. Citizenship law is an empty shell, a formality of formal equality.

As migration law, therefore, forms the effective barrier to the nation and to the eventual possibility of citizenship, analysing the functioning of migration law and policy is a vital addition to feminist analyses of citizenship. Migration laws are designed to meet the perceived needs of the nation,[46] and to shift when those perceptions alter. In Australia the objectives of the Migration Act are defined in relation to the national interest.[47] Within this framework annual visa quotas in each of the categories are established by the Minister, without a formal requirement for parliamentary scrutiny.[48] That is, the aspect of the migration law and policy framework that determines the crucial question of how many people will be allowed entry is not fixed in law. The Migration Act provides that numbers be set but leaves the government with absolute discretion in setting them. In legal terms, this discretion is constrained only by the national interest objectives of the Act.[49] Similarly, detailed criteria for visas are established by regulation, facilitating quick changes and reducing the opportunity for alterations to be scrutinised.[50] The aspects of migration law that most affect potential migrants are not subject to full democratic scrutiny and can be quickly altered.

This reveals the key feature of the coupling of migration law and national interest. While the two are inextricably linked, national interest is not stable. Whatever the national interest is perceived to be at a given political moment, migration law can accommodate it. This is crucial to migration law’s role as the effective border of the liberal community. Migration law is the principal legal framework determining who will be admitted to the community and who will be excluded. The liberal community is premised on having a border and, in order for a border to function, it must provide at least the appearance of stability. The fluid structure of migration law, the way in which it facilitates rapid change, accommodates this need. As ‘law’ it draws on all of law’s ideology of stability, predictability and certainty. Since it is tied to the national interest, it shifts with political whim. Migration law serves a key function for the liberal community that is a nation, by setting its limits.[51] Yet in liberal discourse, citizenship is the concept within which the meanings and responsibilities of membership are at issue.

Considerable work has been done towards a feminist analysis of gender and nation,[52] and some of this scholarship, such as that of Nira Yuval-Davis[53] and Audrey Kobayashi,[54] considers the place of immigration in analyses of the gendered aspects of nation as a concept. My argument here has several points of contact with this work. However, my specific focus is on the gendered effects of migration regulation, which Joan Fitzpatrick and Katrina Kelly assert to be not often considered in feminist literature.[55] A vital exception to this statement is the work in the British context of Jacqueline Bhabha and Sue Shutter, whose detailed study documents and analyses gendered inequalities in nationality and migration law.[56] As the most significant hurdle to citizenship is achieving permanent residency, the gendered nature of migration regulation is crucial to understanding this aspect of citizenship law and discourses of citizenship. Fitzpatrick and Kelly’s own work considers some gendered aspects of migration, focusing on analytic links between the ‘maid trade’, internal migration for better wages, and migrant women in the informal economy. Fitzpatrick has also analysed the gendered aspect of American family migration policy.[57] My analysis here considers the place of women in the range of migration categories, pointing out the diversity of ways a gendered perspective contributes to understanding the effect of the law and arguing that the citizenship law–migration law dichotomy makes this diversity disappear.

In contrast with migration law generally, the gendered effects of the 1951 Convention Relating to the Status of Refugees[58] have received considerable attention.[59] Attention to gender bias in refugee admissions is important to citizenship in Australia because most refugees are accorded permanent residency and in time become eligible for citizenship.[60] Nonetheless, refugees make up only a small proportion of permanent residency admissions each year in Australia, as in Canada and the United States.[61] The value in considering the gendered aspects of permanent residency provisions across all categories of migrant admission is that it underscores the diversity of gendered effects in this law and thereby provides stark evidence of the differences that citizenship discourses mask.

The question of discrimination in migration law is always a slippery one because selecting migrants is an exercise in discriminating. The nation decides which migrants will best meet its needs — by definition it discriminates. The power of the nation to exclude aliens at its borders and to determine who its own citizens will be is part of its sovereign status, part of what defines it as a nation.[62] Since the official end of the ‘White Australia’ policy in the 1970s[63] the official line has been that Australian migration law is ‘non-discriminatory’.[64] One important way of challenging this claim is to expose the ways in which the new ‘non-discriminatory’ migrant selection process, which focuses on educational and labour-market qualifications, English language skills and wealth, replicates and reinforces the earlier racist effects of the law. An alternative way of assessing the non-discriminatory claim is to consider the class element injected into the process by the new criteria. The emphasis on wealth and the market value of the individual makes explicit in the law factors that were only implicit before — the rich have always been more mobile. The post-White Australia policy, however, means that historical migrations of those fleeing famine and destitution in search of a better life would now be impossible.[65]

The non-discriminatory claim of contemporary Australian migration law is rarely challenged on the basis that it discriminates against women. My analysis here begins the process of filling that gap. Considering the gendered aspects of admission to permanent residency also allows us to analyse the intersections of gender, race and class that operate in this law. Migration law serves the national interest and makes discriminatory selection of migrants on the basis of who will best fit the national interest. Accordingly, migration law encodes national values and preferences. It is predictable that deciphering the code reveals a preference for men.

IV SETTLER ARRIVALS IN AUSTRALIA: 1994–99

A detailed look at the arrivals of permanent residents in Australia over the past five years[66] shows that migration law admission categories, while arguably not prima facie discriminating on the basis of gender, do affect women and men differently. These statistics also show that women are affected differently in each broad category of migration: family admissions, economic admissions and humanitarian admissions. The starting point in the story is that, in each of the past five years, more women than men have been admitted to Australia.

It is not easy to achieve the closer view required to see the conditions under which more women than men are admitted to Australia. The Department of Immigration and Multicultural Affairs’ Annual Report reports the number of visas granted by category and by country of origin, but not by gender. Statistics available free of charge on further request sort arrivals by age and gender. On request, for which a fee for service applies, the Department’s research and statistics branch will sort applicants by gender and by whether the individual is a primary or secondary applicant. This is a crucial distinction for women and for analysis of citizenship. It is vital both to the law and to one’s experience in Australia whether one arrives as ‘dependent’ or ‘independent’. A primary applicant applies in her own right because she meets the visa criteria. Secondary applicants are included because the relevant visa category allows primary applicants to bring dependants. It is doubtful that the Department deliberately sets out to make the story of gendered migration statistics difficult to access. Successive governments display considerable pride in Australia’s non-discriminatory migration laws. The difficulty is more likely to be explained by a judgment that gender is not a particularly important consideration in analysing new arrivals to Australia.

A Family Migration

Five years ago family migration was the largest of the three categories. The logic behind migration under this category is straightforward: it allows Australians to be reunited in Australia with their close relatives. Family migrants must have a sponsor in Australia. Family is defined narrowly in the Migration Regulations to include a heterosexual spouse and minor children.[67] Parents can also be included in this category, but in the past four years the number of parent visas has been severely capped. In the first year of the cap, this amounted to a reduction in the number of visas available to parents of approximately 85 per cent. Adult children and siblings of applicants are excluded. The family category has also included a small number of visas for those in ‘interdependent’ relationships,[68] which facilitate permanent residency for same-sex partners. This definition of family alone, even without considering how it is working in practice, raises a number of important issues.[69] A narrow definition of family reduces the possibility of extended family support for women with primary caring responsibilities. As women live longer than men, reducing the admission of parents is likely to affect women more than men. Creating a special ‘neutral’ category for same-sex partners explicitly excludes them from the family definition.

Over the past five years considerably more women than men have been admitted in the family migration category (see Table 1).

	Female	Male	Total	% Female
1998–99	13 266	8 235	21 501	61.7%
1997–98	12 732	8 410	21 142	60.2%
1996–97	16 929	11 297	28 226	60.0%
1995–96	23 948	14 407	38 355	62.4%
1994–95	17 987	11 153	29 140	61.7%
Total	84 862	53 502	138 364	61.3%

In most years the percentage of female applicants increases slightly when only primary applicants are considered (see Table 2).

	Female	Male	Total	% Female
1998–99	11 183	6 690	17 873	62.6%
1997–98	10 482	6 649	17 131	61.2%
1996–97	12 898	8 821	21 719	59.4%
1995–96	18 345	10 855	29 200	62.8%
1994–95	14 657	8 963	23 620	62.1%
Total	67 565	41 978	109 543	61.7%

Family migration is the only category where women both consistently and considerably outnumber men. Accordingly, this category on its own accounts for total female migrants outnumbering total male migrants in each of the years being considered.[70] As well, this is the only category of migration where primary applicants outnumber secondary applicants. The differences here are considerable. The primary applicant–secondary applicant division in the most recent year for which statistics are now available is set out in Table 3.

The division of primary and secondary applicants is similar in each of the years being considered. What this means is that family category migrants are much more likely to arrive without dependants than migrants in other categories. Considering whom these visas go to explains this. In 1998–99, 77 per cent of all visas in the family category went to spouses (67.5 per cent) and fiancé(e)s (9.7 per cent).[71] That is, the vast majority of family class migration is made up of heterosexuals joining their partners in Australia. Of these, in turn, women significantly outnumber men, as demonstrated above. In short, a considerable portion of the family migration program is made up of ‘wife import’.[72] Family class migrants bring fewer dependants because one half of the couple is already in Australia. That is, the relationship of dependence spans and is reinforced by the border of the nation.

The interdependency visa provisions also tell an interesting story. When these visas were introduced in the early 1990s, the target number was 400. That has since been reduced and in 1998–99, 300 interdependency visas were granted.[73] This accounts for 0.9 per cent of family class visas granted and 1.2 per cent of visas granted to facilitate couple reunion.[74] I have made these calculations assuming that all of these visas were granted to facilitate family reunion for same-sex spouses. Given the neutral wording of the category description, this may not be entirely the case. The recognition of the need of same-sex couples for equal access to family reunion provisions, which is represented by this visa subclass, is not to be underestimated. This category of migration is not formally available in either the United States or Canada.[75] The specific situation of this visa outside the definition of family, and the small and shrinking number of visas available, suggest that it is but the first step in moving towards formal equality for same-sex families.

In addition to the requirement applied to all partner reunions that their relationship be bona fide, spouses, fiancé(e)s and interdependency visa holders are subject to a requirement unique among permanent migrants. The visa they are initially granted is a temporary one, valid for only two years. At that point, if their relationship with their sponsors is still intact, they become eligible for a permanent residency visa. This provision was aimed at cracking down on marriages contracted in order to skirt migration controls. Nonetheless, as the majority of dependency visa holders are women, the impact of this provision on women is disproportionate. The government recognises an exception to this rule in cases of domestic violence when it can be documented by court orders, police reports or corroborated statutory declarations.[76]

Family class migration is responsible for more women than men being granted admission to Australia as potentially permanent migrants each year. In this category, migration law enshrines a picture of the nation’s vision of the family. The exclusions from this vision impact on women more than men. The statistics reveal the ‘wife import’ aspect of family migration, which needs further detailed analysis in order to explore the intersections of race and class that may underlie this practice. To the extent that migration law expresses the needs of the nation, the story to be read from these statistics is that Australia needs women, and needs them to be wives. The requirement that family migrants have a sponsor in Australia formalises a relationship of dependence between the sponsor and the migrant, and contains a guarantee that the sponsored will not be supported by the state. An examination of the migration statistics shows that this dependence is often mapped onto the traditional relationship of dependence between men and women as marriage partners. It replicates the independence–dependence dichotomy to which feminist critiques of citizenship call our attention. Even for couples who have not previously experienced their relationship as one of dependency, the legal provisions here formalise and foster that status.

B Economic Migration

The story of gender in the economic migration category is more straightforward. This category, now Australia’s largest, is formally named ‘skilled’ migration.[77] The overarching objective is to tailor migration to meet the needs of Australia’s economy.[78] The subclasses provide a succinct description of how this is to be achieved: the Employer Nomination Scheme/Labour (‘ENS’) subclass, for those who already have a job offer; the Business Skills subclass, for those with a combination of business experience and money; the Independent subclass, for those with a combination of education, training and language skills regarded as being likely to translate quickly into finding a job; Distinguished Talent, for those whose achievements in their occupational endeavours have brought them world renown; and Skilled Australian-Linked, for those with a combination of labour market attributes and family support in Australia.[79] The criteria in each subclass are set out in terms that parallel traditional labour market and economic biases against women. Men are more likely than women to be able to qualify.

For economic migration the principal device for determining who will be awarded a visa is the points system. Applicants are assigned points according to the following criteria: employment, age, English language skill, family ties, relationships, length of sponsor’s Australian citizenship, and location of the sponsor within Australia.[80] Not all criteria are relevant for each category. For example, sponsorship is only relevant to the Skilled Australian-Linked subclass,[81] while Business Skills applicants are assessed under a variation of the scale that adds points for the amount of money they intend to bring with them.[82]

While the points system aims at presenting a neutral and scientific approach to sorting migration applications, its effect is to translate labour market biases into Australian law. Men’s traditionally greater access to skilled employment, education, training and capital accumulation makes them more attractive immigrants than women. The recent and slow advances that women have made in the traditionally male-dominated job market within Australia are not relevant here. The effect of the points system is to ensure that whatever advantages men may have in access to education, jobs or money in places other than Australia are translated into the preference grid of migration law. While Australia may perceive itself to be outperforming the nations from which many of its migrants come, based on indicators of women’s progress in the economy, it nonetheless accepts the economic baselines of those nations as the best indicators of who will succeed and thrive in Australia, and therefore accepts these as the indicators of whom Australia values. In this way economic migration imports gender bias and discrimination from elsewhere.

For economic migration, the difference between primary and secondary applicants is crucial. When the numbers are aggregated, women are not far behind men in this group. In 1998–99, 13 275 women and 14 656 men arrived under the rubric of ‘skilled migration’. The numbers for this most recent year are very close to those over the past five years and the difference of approximately 1000 has remained constant.[83] However, when these numbers are divided into primary and secondary applicants, and considered in each subclass, the picture looks quite different (see Table 4).

	Female	Male	Total	% Female
1998–99	3 610	7 556	11 166	32.3%
1997–98	3 220	7 042	10 262	31.4%
1996–97	2 023	5 842	7 865	25.7%
1995–96	2 224	5 995	8 219	27.1%
1994–95	2 539	6 541	9 080	28.0%
Total	13 616	32 976	46 592	29.2%

What this tells us is that the near parity in overall numbers of arrivals in the economic categories is due to the fact that many men, coming as primary applicants, bring women with them. That is, most women receive entry visas as dependants. A woman’s admission to Australia is dependent, literally, on her relationship with a man.

The primary applicant totals also demonstrate that in 1998–99 and 1997–98 women made up a greater percentage of primary applicants. The explanation for this is that the shift after 1996–97 to include the Australian-Linked subclass as economic migration rather than family migration results in women making up approximately 32 per cent of primary applicants rather than approximately 26 per cent. This is the result of the inclusion of family ties in Australia as one of the sources of points, rather than considering only the economy-driven measures and age.[84]

Gender differentials across subclasses of the economic program are also striking (see Table 5).

Table 5 Primary Applicants: Skilled Migration Table 5 Primary Applicants — Skilled Migration	Skilled Australian-Linked	% Female	41%	40%	n/a	n/a	n/a
		Male	1 918	1 685	n/a	n/a	n/a
		Female	1 307	1 105	n/a	n/a	n/a

	Distinguished Talents	% Female	20%	29%	17%	18%	24%
		Male	28	27	24	31	25
		Female	7	11	5	7	8

	Independent	% Female	33%	23%	29%	30%	30%
		Male	4 025	3 698	3 986	4 351	5 450
		Female	1 986	1 775	1 623	1 826	2 280

	Business Skills	% Female	14%	16%	19%	23%	14%
		Male	1 131	1 042	1 145	889	461
		Female	188	192	262	202	74

	ENS (Jobs)	% Female	21%	19%	16%	21%	23%
		Male	454	590	687	724	605
		Female	122	137	133	189	177
			1998–99	1997–98	1996–97	1995–96	1994–95

In each of the subclasses of economic migration, men are more often the primary applicants. In the largest subclass, independent migration, women make up approximately 30 per cent of primary applicants. Among business migrants, women are primary applicants less than 20 per cent of the time, and among those with secured jobs, the average over the five years is 20 per cent women. The special talents group is too small for a percentage trend to be meaningful, but the raw numbers tell the story plainly enough. In sum, the statistics confirm what is to be expected based on the category descriptions and the established logic of economic migration: men are more valuable to the traditionally understood economy than are women.

The story of gender in economic migration is predictable, based on the well-known story of men’s historic and persistent dominance of economic roles. The majority of families arriving in Australia through this type of migration conform to the ‘breadwinner + dependants’ picture which, according to Pateman, Cass and Young, undermines full citizenship for women.[85] Migration law is about discriminating. It is, rhetorically, about getting the best people for our country. The message seen here is that those best people are men.

Let us imagine two ‘types’ of families who may come to a new life in Australia under these provisions. For the first, the ‘breadwinner + dependants’ picture has never been an adequate description of their lives. The heterosexual adult partners have worked out a way of living together based on equality and mutual respect; household tasks are shared equitably and caring work is shared equally; income is earned outside the home by both partners in fulfilling work with roughly equal financial rewards. Passing through the net of this migration law alters that. Maybe not immediately, maybe only slightly, but it does shift the balance. One partner, the man in about 75 per cent of cases, becomes the defined breadwinner. The other, usually the woman, has a visa labelling her dependent and an income, if she finds new work, deemed unnecessary by the state. Whether she grows to love this new country or not, she arrives in the category of accompaniments. For this family, life in Australia may not turn out to conform to the ‘breadwinner + dependants’ picture, but the groundwork for a shift to that mode is laid down by the law. Even for a couple intending to come to Australia and run a business and work together in it, the migration law requires that one be labelled primary and the other secondary. Equality is not an option.[86]

The second type of family comes from a country where women have fewer opportunities for education, employment and wealth accumulation than they do in Australia. This may even be one reason why they have decided to migrate. The man in this family, throughout his life, has had better education and employment chances than his partner. He is doing well for himself — we know that because he qualifies as a skilled migrant. His superior education means that he already speaks some English, which helps on the points test. As his partner’s potential income was low and state-supported child care was non-existent, she has not worked outside the home since their first child was born. She does not speak any English and has no education or training beyond high school. When they arrive in Australia searching for the better life — they are a ‘type’, remember — he is the breadwinner and she and the children are the dependants. Their lives already fit this mould; the migration process just stamps a seal of approval on it. He works, though the salary that seemed astronomical back home does not go quite so far given the price of goods. Her ‘dependence’, formerly economic, is now all-consuming. She has to rely on him even to talk to her neighbours, her family support network is now distant, and she is doing just as much child care and housework as before, with the additional burden of the outwork necessary to make ends meet. Her lack of marketable skills puts her even further behind in the Australian economy than she was back home. While she presumed she would find a job here, the odds of being qualified for one are slim. There is a better life to be had — for the children.

Contrasting family and economic migration adds a further dimension to the story of gender in migration law. Family migration is presented as something the nation fosters because it recognises the emotional attachments of its members. Economic migration is viewed as serving a more quantifiable need of the nation — to increase economic growth. Women dominate family migration, the category associated with emotional need. Men dominate economic migration. While both categories of migration are harnessed to the needs of the nation, the national interest, women nurture the nation by meeting its emotional needs, while men supply capital and labour. The ‘wife import’ factor in family migration, regardless of its masked racial dimension, provides that women also serve the nation’s need to reproduce.[87] None of this is explicit in the law, but it is the effect of the law — the result of defining the nation’s values in this way in specifying criteria for entry under the various subclasses. Further, when the government shifts its migration preferences from the family stream to the economic stream, it shifts its preferences from women (however dependently defined) to men.

C Humanitarian Migration

The migration of refugees and others in the humanitarian stream makes up a reasonably small proportion of the overall permanent resident intake.[88] In Australia officially labelled ‘refugees’[89] make up about half of the migrants in this category.[90] This split in the program can potentially accommodate those in refugee-like situations who do not fit within the internationally agreed definition for any number of reasons. There is at least prima facie merit in organising the program this way, as the definition has been roundly criticised for its narrowness.[91]

In addition to general criticism of the refugee definition, feminist critiques have drawn our attention to the refugee definition’s poor fit with women’s experiences.[92] The definition, forged in the early Cold War years, has discriminatory persecution as its focus and a strong bias towards political action and, thus, actors in the public sphere. This issue has been on the agenda now for well over a decade. Gender bias in the refugee definition is particularly important because the United Nations High Commission for Refugees (‘UNHCR’) estimates that approximately 80 per cent of those who are currently in refugee camps around the world are women.[93] The UNHCR has promoted the cause of women refugees and has urged the nations which accept refugees for resettlement to consider taking more women. Australia has responded to the UNHCR’s agenda with its Women at Risk Program, aimed at identifying women in refugee-like situations and circumventing the biases of the refugee definition.[94]

The gender bias in refugee law and determination must be approached with careful consideration as to why so many of those in refugee camps are women and children. The masculinist ‘privilege’ represented by these numbers is a sobering one. It is women and children who remain after men are taken away and killed, or conscripted into various fighting forces, or imprisoned. To that end, the statistics do tell of men being more highly valued than women. But this story cannot be simply overlaid on a picture of men being better off. Many in refugee camps have survived because they are women.

Given all of this, we might expect that in humanitarian admissions women would outnumber men. The numbers tell a different story (see Table 6).

	Female	Male	Total	% Female
1998–99	4 364	4 426	8 790	49.6%
1997–98	3 157	4 400	7 557	41.8%
1996–97	3 310	5 087	8 397	39.4%
1995–96	4 742	6 927	11 669	40.6%
1994–95	4 518	7 110	11 628	38.9%

Male arrivals outnumber female arrivals in each of the past five years by a considerable margin in all but the most recent year. Predictably, when primary and secondary applicants are considered separately, men are more often in the primary, head-of-household position.[95]

What is more interesting is that, on analysis, the gendered picture of the statistics is roughly similar for refugee admissions and other admissions in the humanitarian category (see Table 7). This suggests that the gendered nature of the refugee definition is paralleled in the special humanitarian programs aimed at providing assistance to those who fall outside the refugee definition.

	1998–99		1997–98		1996–97		1995–96		1994–95
	Refugee	Other	Refugee	Other	Refugee	Other	Refugee	Other	Refugee	Other
Female	1 630	2 734	1 795	2 584	1 604	3 195	1 989	4 908	1 742	4 780
Male	1 639	2 787	1 758	2 642	1 768	3 319	2 071	4 856	2 264	4 846
Total	3 269	5 521	3 553	5 226	3 372	6 514	4 060	9 764	4 006	9 626
% Female	49.9%	49.5%	50.5%	49.4%	47.6%	49.0%	49.9%	50.3%	43.5%	49.7%

The special humanitarian and special assistance programs do allow for a broader definition of who is in need of assistance, by removing those requirements that an applicant for refugee status would otherwise have to satisfy. These include the requirements that the applicant be outside their home country or be facing targeted persecution, rather than experiencing general abuses of their human rights.

However, the processing priorities in the humanitarian program, which favour those with more education and ties with Australia, are more likely to advantage men than women. Gender is not one of the biases addressed by the general humanitarian categories.

Gender bias in humanitarian provisions is, however, precisely the focus of Australia’s implementation of the Women at Risk Program, which aims to assist women in their particular circumstances, even though they are not necessarily refugees. As a prerequisite, the woman must not be accompanied by an adult male relative or have the protection of a male relative. The effect of the program is sometimes to encourage the consideration of women within the refugee definition and sometimes to foster a broader consideration of their circumstances, although all Women at Risk visas are counted under the refugee category.[96]

This approach is strikingly different from the Canadian response to UNHCR calls for attention to the plight of women refugees. The Canadian Immigration and Refugee Board has issued guidelines, pursuant to section 65(3) of the Immigration Act, RSC 1985, c I-2, on gender-related persecution,[97] which outline a way of interpreting the refugee definition to make it more responsive to the specific circumstances of women and their experiences of persecution. The use of these guidelines fosters an expansion of the definition of refugee and asserts that women’s experiences ought to be accommodated within the legal text. The Australian device of considering the Women at Risk program as a separate program promotes the view that women have special needs, which do not fit the legal framework. The Canadian approach changes the law; the Australian approach keeps women outside the law.

This difference in approaches can of course be considered hair-splitting and semantic. I would be more tempted to dismiss its importance if the Australian Women at Risk Program had been meeting the needs of a significant number of women. As it is, however, the program accommodates very few people. In

1998–99, 367 visas were issued, against a target of 420.[98] In the previous year 543 visas were issued.[99] These totals include both primary and secondary visas in the category. They do not simply mean that 367 women were granted visas under the program last year but, rather, that 367 people, including women and their dependent children, were granted program visas. While the aims of the program are laudable, and although it does address the prevalence of women in refugee camps around the world, its impact is very slight. Of the overall humanitarian program in 1998–99, these visas make up only 3.2 per cent. This figure would be 3.7 per cent if the Department had met its stated target. Of the total number of permanent resident visas granted, the Women at Risk Program made up 0.46 per cent.

In the instance of humanitarian migration, gendering the statistics tells a different story from the one it tells in family or economic migration. Under the humanitarian umbrella, women and men arrive in Australia in numbers that have been moving closer to equality over the past five years. Given the very high proportion of people in refugee camps around the world who are women,[100] this ‘almost parity’ is not parity at all. Not all of those in refugee camps fall under the refugee definition; some enter Australia under the other categories in the humanitarian program. Therefore, it is accurate to say that 80 per cent of those needing humanitarian resettlement are women and children. The Women at Risk Program is an important symbol in this area, but at its current level of operation its function is little more than symbolic.

Looking broadly at the three migration streams, we see the shifting place of women in the logic of migration. Family immigration is dominated by women and involves few dependants. That is, much of this stream is made up of women coming to marry Australian citizens and leaving their families of birth behind, with limited prospects of later reunion in Australia. As an expression of national values, this migration stream represents women as wives and as mothers of new Australians. Economic migration is the stream that most overtly caters to national need. Those who are welcomed because of their immediate dollar value to the Australian economy are more likely to be men. Gender bias from outside Australia is imported through this scheme; equality outside Australia is muted by it. Finally, in the case of humanitarian migration, men are more likely to be the beneficiaries of the nation’s generosity.[101]

V CONCLUSION: THE CITIZENSHIP LAW–
MIGRATION LAW DICHOTOMY

The gendered story told by the permanent residency statistics is important in and of itself. Women and men are admitted to Australia on different conditions. Those conditions affect the way new immigrants live, their day-to-day experience of Australia as a nation, and the message that Australia conveys in international fora. Understanding how migration law is gendered adds a vital dimension to the consideration of discrimination in migration laws. The essence of migration law is discrimination — the nation establishes a legal framework aimed at discriminating among applicants, enticing some individuals and discouraging others. The question whether the preferential system that emerges is labelled discrimination in its pejorative sense could in part be dismissed by arguing that migration rules are an area of pure sovereign control. Accordingly, if Australia seeks migrants who will bolster its economic performance and resources, it is of little import if the result is a preference for men. This argument falls apart, however, when it is compared either with similar arguments about racialisation in migration law or with feminist analyses of other areas of the law. We would not accept the law as being non-racist when its effect was to prefer caucasians. We would reject a conclusion that conditions of maternity leave were non-discriminatory because they theoretically affect women and men equally. Similarly, gendering permanent residency statistics shows that Australian migration law discriminates against women. As such, it fulfils its role in the liberal nation, broadcasting values and regulating the border. For some, the discriminatory essence of migration law validates all its discriminatory aspects. The link between citizenship law and migration law is instructive in revealing the wrongs of discriminatory migration laws.

Beyond the importance of gendering permanent residency data to unearth discrimination in migration law, the study of permanent residency is also critical to feminist analyses of citizenship. The admission criteria ranging over various migrant categories reflect the core elements identified by the feminist critique of citizenship. In economic migration the core citizenship value of independence is the central criterion. Individuals are measured by their worth in the public sphere of the market economy and, accordingly, their access to state support is curtailed. Any accompanying ‘dependants’ are subject to lesser scrutiny, confined as they are to the private sphere to be supported by the ‘family wage’, which visa criteria aim to ensure the primary applicant will earn. Analyses of citizenship tell us that places for individuals in the public sphere are built on a male model and that men fit into them more easily. The statistics on skilled migration confirm this. As success in the economy is the central logic behind skilled migration, it is predictable, given men’s greater wealth and earning capacity in Australia, that these measures will discriminate against women. Furthermore, migration laws also serve to import economic disadvantage from outside Australia, as one’s skills and earning capacity must be proven before entry is granted.

The core citizenship value of independence is also central to the logic of migration law. Immigration mythology is peopled by rugged individuals who first ‘settled’ Australia and by hard working immigrants who ‘manned’ the post–World War II economic expansion. In contemporary migration law, independence is increasingly part of the formalised code. Within the family migration category, sponsors are required to ensure that those they assist to come to Australia will not depend on the state for support. The largest sub-category in the skilled stream is labelled ‘independent’, reflecting the increasing emphasis over the past five years on attracting migrants who can contribute to the economy directly and do not need the support of the state.

Family migration also contributes to the centrality of the independent–dependent dichotomy to migration law. The dominant wife-import character of this category formalises an independent–dependent relationship between marriage partners. The Australian sponsor must demonstrate the capacity to support the migrant and undertake to ensure that the migrant does not depend upon the state for the first two years. The newcomer’s status within the nation is dependent upon her marriage and is initially contingent upon her marriage enduring. It is because of family category migration that more women than men enter Australia each year. While this expresses the idea that women are valued by the nation, and may be seen to counter simplistic arguments about discrimination in the law, it also provides that women are permitted to enter Australia mainly under conditions of dependence. They fit within the nation’s priorities when they fill the role of wife and potential future mother. Their primary value is not in the public sphere of the economy, but in their contribution to the private sphere of home and nurture. While Australian women increasingly learn to negotiate the public–private boundary and to live parts of their lives in each sphere, newcomers are required as a condition of entry to occupy the private sphere first.

Finally, a central feminist argument is that citizenship discourse suppresses and ignores differences among individuals through its emphasis on universality and common values. In legal discourses this is made possible through the coupling of migration and citizenship laws. Migration law is individualistic and particularistic and its primary aim is exclusionary. In the realm of migration law the individual is scrutinised physically, financially and emotionally. To ensure the best value for the nation from its migrants, and in the name of protecting the national community, our migration law ensures the highest level of scrutiny of individuals, from examining the inside of their lungs to probing the day-to-day workings of their marriages. It scrutinises the public and private aspects of individuals’ lives. Migration law examines bodies. It aims to discriminate. These functions of migration law free citizenship law to the realm of universality and ideals. Through the device of permanent residency, migration law controls the pool of potential full members of the community. The hurdles to full membership, as spelt out in the provisions of citizenship law, are minimal. Migration law does the dirty work for citizenship law, ensuring that those who can become citizens meet the nation’s standards regarding health, character, independence from the state, education, training, family structure and any number of other criteria that can be added to or subtracted from the law with ease.

The migration law–citizenship law coupling is, therefore, another dichotomy familiar to theorists. Migration law shares the space of the body in the

mind–body pairing and that of private under the public–private yoke. The migration–body–private sphere sustains, services and provides the preconditions for the more highly valued citizenship–mind–public realm. Like these other dichotomies, the line between migration law and citizenship law is a site of ongoing negotiation. Similarly, the division is artificial. Migration law is the law that regulates many of the concerns of citizenship theorists. It is only lawyers who can easily imagine the separation of the two areas of law, only lawyers for whom it matters.

In part, then, my argument here is written for lawyers in particular, as others concerned with citizenship would see this as unnecessary. I call upon legal thinkers to pay more detailed attention to the ways in which migration law constitutes the community through its screening of potential citizens. While the universalism and narrow public preoccupations of citizenship discourse are concerns in and of themselves, in analysing those concerns within the law we must remember that the claim of citizenship law to universality is undermined by the operation of migration law. Separating the law of community membership into these two categories makes the private, bodily preoccupations of migration law disappear from view, leaving citizenship law to the lofty cerebral equality of liberal legalism. The suppression of particularity and difference is achieved through the coupling of migration and citizenship law. When women who are permanent residents of Australia choose to become citizens, they bring with them into this status the dependency that our migration law has required of them.

[*] MA (Carleton), LLB (UBC), PhD (ANU); Lecturer, Faculty of Law, The University of Sydney.

[1] Some examples of scholars who assert and give evidence of this claim include: Stuart Hall and David Held, ‘Citizens and Citizenship’ in Stuart Hall and Martin Jacques (eds), New Times: The Changing Face of Politics in the 1990s (1989) 173; Geoff Andrews (ed), Citizenship (1991); Will Kymlicka and Wayne Norman, ‘Return of the Citizen: A Survey of the Recent Work on Citizenship Theory’ (1994) 104 Ethics 352; Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (William Rehg trans, 1996) app 2 ‘Citizenship and National Identity (1990)’; Alan Cairns et al (eds), Citizenship, Diversity and Pluralism: Canadian and Comparative Perspectives (1999).

[2] See, eg, Abdul Paliwala, ‘Law and the Constitution of the “Immigrant”’ in ‘Europe: A UK Policy Perspective’ in Peter Fitzpatrick (ed), Nationalism, Racism and the Rule of Law (1995) 77; Roel de Lange, ‘Paradoxes of European Citizenship’ in Peter Fitzpatrick (ed), Nationalism, Racism and the Rule of Law (1995) 97. See also Hall and Held, above n 1.

[3] This is one element in a set of proposals for a complete overhaul of Canadian immigration law set out in Canada, Department of Citizenship and Immigration, Immigration Legislative Review Advisory Group, Not Just Numbers: A Canadian Framework for Future Immigration, Final Report (1998).

[4] The 50th Anniversary of Australian Citizenship Conference, The University of Melbourne, Melbourne, 21–23 July 1999.

[5] See, eg, Carole Pateman, The Disorder of Women: Democracy, Feminism and Political Theory (1989); Ruth Lister, ‘Citizenship: Towards a Feminist Synthesis’ (1997) 57 Feminist Review 28; Iris Marion Young, ‘Polity and Group Difference: A Critique of the Ideal of Universal Citizenship’ (1989) 99 Ethics 250; Iris Marion Young, Justice and the Politics of Difference (1990); Davina Cooper, ‘The Citizen’s Charter and Radical Democracy: Empowerment and Exclusion within Citizenship Discourse’ (1993) 2 Social and Legal Studies 149; C Lynn Smith, ‘Is Citizenship a Gendered Concept?’ in Alan Cairns et al (eds), Citizenship, Diversity and Pluralism: Canadian and Comparative Perspectives (1999) 137; Margaret Thornton, ‘Historicising Citizenship: Remembering Broken Promises’ [1996] MelbULawRw 19; (1996) 20 Melbourne University Law Review 1072.

[7] In referring to the United States, Canada and Australia as being the principal nations of immigration, I follow Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (1995).

[10] Rubenstein’s discussion maps how these legal frameworks contribute jointly to the notion of citizenship: Rubenstein, above n 6.

[11] In the words of Sandra Berns: ‘Lawyers figure citizenship narrowly, interpreting signs of nationality, of domicile, of suffrage, of status, excluding migrant, permanent resident and alien. The lawyer’s citizen is a shadowy creature, its attributes sensible only to those well versed in the decoding of legal language’: Sandra Berns, ‘Law, Citizenship and the Politics of Identity: Sketching the Limits of Citizenship’ [1998] GriffLawRw 1; (1998) 7 Griffith Law Review 1, 1

[12] According to Lister, above n 5, 28–9 (citing respectively Denise Riley, ‘Citizenship and the Welfare State’ in John Allen, Peter Braham and Paul Lewis (eds), Political and Economic Forms of Modernity (1992) 179, 190 and T H Marshall, Citizenship and Social Class (1950) 28–9):

The impossibility of arriving at an exhaustive and comprehensive definition of citizenship, commented on even by Aristotle, is a common refrain running through the literature. Rather than attempt such a definition of this ‘slippery concept’, many today fall back on that provided by T H Marshall: ‘Citizenship is a status bestowed on those who are full members of a community. All who possess the status are equal with respect to the rights and duties with which the status is endowed.’

[13] Liberal political theory assumes community as a starting point and theorises justice and equality within that framework. I discuss this in detail in Catherine Dauvergne, ‘Beyond Justice: The Consequences of Liberalism for Immigration Law’ (1997) 10 Canadian Journal of Law and Jurisprudence 323 and in Catherine Dauvergne, ‘Amorality and Humanitarianism in Immigration Law’ (1999) 37 Osgoode Hall Law Journal 597.

[16] Such as the capacity to bear arms, the capacity to own property and the capacity for self-government: ibid 186.

[17] Bettina Cass, ‘Citizenship, Work and Welfare: The Dilemma for Australian Women’ (1994) 1 Social Politics 106, 112 (emphasis in original).

[18] Pateman, above n 5, 192. While Pateman’s analysis is now 12 years old, the major development since that time — an increasing roll-back of the welfare state and the rise of the ideology of privatisation and economic rationalism — has enhanced rather than diminished the strength of her analysis.

[20] Iris Marion Young, Intersecting Voices: Dilemmas of Gender, Political Philosophy and Policy (1997) 122.

[21] This is the subject of ibid ch 6 ‘Mothers, Citizenship and Independence: A Critique of Pure Family Values’.

[23] Lister calls our attention to the important work that can be done by interpreting citizenship activities broadly to encompass the ‘informal’ political activities in which women are more often involved: ibid 33.

[25] In the Australian Oath of Allegiance the applicant for citizenship must renounce ‘all other allegiance’: Australian Citizenship Act 1948 (Cth) sch 2. Whether this ends one’s previous citizenship depends on the laws of another state. Nevertheless, in order to exercise the highest order citizenship right, participation in the national Parliament, one must make all reasonable efforts to relinquish dual citizenships under s 44 of the Australian Constitution: Sykes v Cleary [1992] HCA 60; (1992) 176 CLR 77, 107–8 (Mason CJ, Toohey and McHugh JJ), 113–14 (Brennan J), 131–2 (Dawson J).

[27] These three categories, representing the organisation of migration programs of eight nations, including Australia, are considered to constitute the world standard in the discussion of Jules Coleman and Sarah Harding, ‘Citizenship, the Demands of Justice, and the Moral Relevance of Political Borders’ in Warren Schwartz (ed), Justice in Immigration (1995) 18, 19–25.

[28] I elaborate on this argument in Dauvergne, ‘Beyond Justice’, above n 13, 333, 338, and consider it with particular attention to humanitarian migration in Dauvergne, ‘Amorality and Humanitarianism’, above n 13, 617, 622.

[29] These comments were made at the time of the Business Council of Australia’s conference in October 1999 and were widely reported in the national media, eg: Campbell Anderson, ‘We Need More People, at Every Level of Skill’, The Australian (Sydney), 10 November 1999, 5; Amanda Hodge, ‘Plea to Populate to 50m or Perish’, The Australian (Sydney), 25 November 1999, 3; Megan Saunders, ‘Sweeteners for Business Migrants’, The Australian (Sydney), 24 November 1999, 2: Phillip Ruddock, ‘Temporary Influx of the Highly Skilled Makes Sense’, The Australian (Sydney), 17 November 1999, 17.

[30] This shift was initiated following the election of the Liberal–National Coalition Government in March 1996. A similar shift took place in Canada in 1995, following a nationwide public consultation process on immigration reform: see Canada, Department of Citizenship and Immigration, Into the 21st Century: A Strategy for Immigration and Citizenship (1994). In the United States family migration has been a much larger component than economic migration throughout the 1990s.

[31] Applicants for permanent residency in Australia are required to have a chest X-ray to screen for tuberculosis and a blood test to screen for HIV status in addition to a physical examination. The physical examination forms remind women to attend for examination when they are not menstruating in order to make an internal gynaecological examination easier to complete: Commonwealth, Department of Immigration and Multicultural Affairs (‘DIMA’), Form 26: Medical Examination for an Australian Visa, which is available as part of the Australian residency application package at a cost of $10. For a comparison with the situation in Canada, see Judith Mossoff, ‘Excessive Demand on the Canadian Conscience: Disability, Family and Immigration’ (1999) 26 Manitoba Law Journal 149.

[32] Business Skills migrants must complete Commonwealth, DIMA, Form 928: Supplementary Information. This requests information about the overall details of the applicant’s business career, bankruptcy and insolvency, the net assets of the applicant’s business in Australian and overseas currency, the applicant’s ownership share in the business, the applicant’s and spouse’s net assets (personal and business), the turnover of the business, and all relevant tax documents. Investment-linked migrants must provide evidence of their ownership interest in businesses, cash on deposit, loans to businesses, stocks and bonds, real estate, gold and bullion, and personal assets.

[33] Migration Act 1958 (Cth) s 46 provides for regulations regarding each visa subclass. In most cases applications must be made outside Australia. See discussion in Mary Crock, Immigration and Refugee Law in Australia (1998) [4.1].

[34] While this stage is often perfunctory — a brief conversation and a stamp in a passport — examination at the border may include more detailed questioning and re-examination of original documents.

[36] Australian Citizenship Act 1948 (Cth) s 13(1)(g). People over 50 years of age are exempted from this provision: s 13(7).

[38] Australian Citizenship Act 1948 (Cth) s 13(1)(h). This is assessed during the same 30-minute interview in which language skills are assessed and original documents are sighted.

[39] Australian Citizenship Act 1948 (Cth) s 13(1)(d). Additional subsections vary the application of these requirements for persons with physical or mental disabilities (s 13(2)), who have served Australia overseas (s 13(3)), who have been imprisoned (s 13(11)), or who are over 50 years (relaxing the English language requirement: s 13(7)), and over 60 years (s 13(8)).

[40] An Information Officer with DIMA told me that the primary purpose of the interview was to allow the officer to examine original documents and that language skills were assessed as that examination was taking place: Interview with Information Officer, DIMA (telephone conversation, March 2000). The rights and duties are not complex: see below n 41.

[41] The responsibilities are: to obey the laws, to enrol on the Electoral Register and vote in every election, to serve on a jury if called, to defend Australia should the need arise. The privileges include: the right to ‘help elect Australia’s government’ (presumably defined this way because voting is mandatory), to apply or run for public office, to claim protection overseas from Australian diplomatic representatives, to enlist in the defence forces and apply for government jobs (some of these positions are refused to non-citizens), and to register one’s children born overseas as Australian citizens: Commonwealth, DIMA, Form A 1027i: How to Apply for a Grant of Australian Citizenship (as available at 27 March 2000).

[42] An application for citizenship costs $120. Costs for permanent residency applications range from $1075 (plus $10 for the application form) for a family class spousal or child applicant to $3100 (plus $10 for the application form) for a business skills visa. An additional $2275 will be charged to a business applicant whose spouse or adult child has less than functional English. Fee details are set out in Form 990i: Commonwealth, DIMA, Form 990i, Charges — July 2000 (as available at 15 July 2000).

[43] Since 1997 a requirement has been in place that permanent residents must wait two years before receiving most types of unemployment benefits: Social Security Legislation Amendment (Newly Arrived Resident’s Waiting Periods and Other Measures) Act 1997 (Cth) sch 1. Medicare, child care assistance, access to the pharmaceutical benefits plan and to government schools are available immediately.

[44] The general prohibition on full-time continuing public service employment is often interpreted so that permanent residents who are eligible for citizenship are also eligible for employment. On the distinctions drawn between citizens and permanent residents, see also Rubenstein, above n 6.

[46] I address this argument in detail in the Australian context in Catherine Dauvergne, ‘Confronting Chaos: Migration Law Responds to Images of Disorder’ (1999) 5 Res Publica: A Journal of Legal and Social Philosophy 23. It also forms part of my thesis in Dauvergne, ‘Beyond Justice’, above n 13, which draws on the Canadian context.

[49] This is a long established administrative law principle: see, eg, Padfield v Minister of Agriculture, Fisheries and Food [1968] UKHL 1; [1968] AC 997; for its approval in Australia, see, eg, R v Toohey; Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170, 186 (Gibbs CJ).

[50] An example of the combined effect of these factors was provided by the late 1999 response to an increase in the number of people arriving by boat in Australian waters and seeking to claim refugee status. Parliament responded to this situation by hurriedly passing the Crimes at Sea Act 2000 (Cth), which tightened penalties for ‘people smugglers’. With support from both sides of Parliament, the legislation was passed in approximately five months. At the same time, a new visa subclass (subclass 785) was introduced for genuine refugees who had initially arrived ‘illegally’: Migration Amendment Regulations 1999 (Cth) sch 2. This change was passed through the process of regulatory scrutiny in two to three months. Its effect is to create a group of lower status refugees in Australia who are only allowed to remain temporarily, who cannot have their families join them, and who are given less access to state welfare measures. The regulatory response to the increase in ‘boat people’ is more dramatic than the legislative one, and affects more people. Making the change by this method was far easier.

[51] A nation cannot be boundless. The idea of a nation having some limit is central to Benedict Anderson’s seminal work in defining ‘nation’: Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (revised ed, 1991). He refers to nations as ‘limited imaginings’: at 6–7.

[52] A selection of this work is presented in Daiva Stasiulis and Nira Yuval-Davis (eds), Unsettling Settler Societies: Articulations of Gender, Race, Ethnicity and Class (1995). Some further pieces are contained in Peter Fitzpatrick (ed), Nationalism, Racism and the Rule of Law (1995). Berns, above n 11, also fits within this tradition.

[53] Eg, Daiva Stasiulis and Nira Yuval-Davis, ‘Introduction: Beyond Dichotomies — Gender, Race, Ethnicity and Class in Settler Societies’ in Daiva Stasiulis and Nira Yuval-Davis (eds), Unsettling Settler Societies: Articulations of Gender, Race, Ethnicity and Class (1995) 1; Nahla Abdo and Nira Yuval-Davis, ‘Palestine, Israel, and the Zionist Settler Project’ in Daiva Stasiulis and Nira Yuval-Davis (eds), Unsettling Settler Societies: Articulations of Gender, Race, Ethnicity and Class (1995) 291.

[54] Audrey Kobayashi, ‘Challenging the National Dream: Gender Persecution and Canadian Immigration Law’ in Peter Fitzpatrick (ed), Nationalism, Racism and the Rule of Law (1995) 61.

[56] Jacqueline Bhabha and Sue Shutter, Women’s Movement: Women under Immigration, Nationality and Refugee Law (1994).

[59] See, eg, Julie Bissland and Karin Landgreen (eds), ‘UNHCR Symposium on Gender-Based Persecution’ (1997) International Journal of Refugee Law — Special Issue; Audrey Macklin, ‘Refugee Women and the Imperative of Categories’ (1995) 17 Human Rights Quarterly 213; Kobayashi, above n 54.

[60] The one exception in Australia is the new subclass of refugee visa, subclass 785, which was created in October 1999 for refugees whose initial entry into Australia was illegal: see above n 50. The provision is aimed at ‘boat people’. One feature of the new visa is that, unlike others determined to be refugees, these people are granted a three-year stay visa: see Migration Amendment Regulations 1999 (Cth) sch 2.

[61] Australia’s 1998–99 planning levels were for the admission of 12 000 humanitarian migrants out of a planned total of 82 000: DIMA, Immigration, The Facts — Information Kit: Key Facts in Immigration (1999) <http://www.immi.gov.au/package/keyfacts.htm> (see also pt 2 of Key Facts at <http://www.immi.gov.au/package/keyfact1.htm> ) at 1 August 2000 (copy on file with author). In 2000 Canada plans to admit between 22 100 and 29 300 humanitarian migrants of a planned total of 200 000 to 225 000: Citizenship and Immigration Canada, Canada ... The Place to Be: Annual Immigration Plan for the Year 2000 (1999) <http://www.cic.gc.ca/english/pub/

anrep00e.html> at 1 August 2000 (copy on file with author). The United States admitted 67 280 humanitarian migrants of a total 660 477 admissions in 1998: United States of America, Department of Justice, Office of Policy and Planning, Statistics Branch, Annual Report: Legal Immigration, Fiscal Year 1998 (1998).

[62] The international legal definition of an independent state includes control over a permanent population: Convention on Rights and Duties of States Adopted by the Seventh International Conference of American States, opened for signature 26 December [1936] LNTSer 9; 1933, 165 LNTS 19, art 1 (entered into force 26 December 1934). International law leaves determination of citizenship and control over immigration rules to states themselves: Nottebohm Case (Liechtenstein v Guatemala) [1955] ICJ Rep 4, 20. Sean Brawley, The White Peril: Foreign Relations and Asian Immigration to Australasia and North America 1919–78 (1995), argues that this was not always the case, and that early in the 20th century the actions of the principal nations of migration (in his study the United States, Canada, Australia and New Zealand) ensured that tentative moves to bring these questions into the international arena were halted.

[63] The term refers to a series of laws aimed at severely restricting migration to Australia from Asia, particularly Japan and China: Crock, above n 33, ch 2 ‘Immigration and the Growth of Nationhood’.

[64] Jan Pettman, ‘Race, Ethnicity and Gender in Australia’ in Daiva Stasiulis and Nira Yuval-Davis (eds), Unsettling Settler Societies: Articulations of Gender, Race, Ethnicity and Class (1995) 65, 74, writes:

In the 1970s immigration selection and citizenship rules became officially non-discriminatory on grounds of ‘race’, culture or country of origin. However, since then educational and occupational criteria for selection have favoured immigrants with English language and recognized trade or professional qualifications. Since the 1970s, increasing numbers of immigrants have come from the Asia-Pacific region. But ironically, this move coincided with the shift from a labour shortage to a labour surplus economy. Thus while immigrants from other non-European countries experience racialization, defined as Other against an idealised white norm, their education and occupational backgrounds are frequently above the average for Australian-born residents.

[65] In popular discourse this is reflected in the condemnation of the ‘mere economic refugee’.

[66] Australian migration statistics are reported for the Australian government’s financial year: 1 July to 30 June. I purchased these statistics from the DIMA Research and Statistics Unit, Canberra. These figures are the source of the tables and other statistical data in this article, and cost a total of $185. At some points I compare the numbers provided in this statistical set with those provided in publicly (and freely) available DIMA publications.

The figures are based on settler arrivals. The figures for settler arrivals are consistently lower than the figures for visas granted. The reason for this is not apparent. While obviously some people who are granted a visa will not arrive in Australia until the next reporting year, there should over time be a ‘catch-up’ effect. That is, settler arrivals will also include some people whose visas were granted in the previous year. The discrepancy in the numbers between visas granted, as reported in the DIMA Annual Reports, and settler arrivals is sometimes striking. In 1998–99, for example, 32 040 family migration visas were granted and 21 501 people arrived. This difference is present to varying degrees over all categories of migration. I have discussed the discrepancy with an officer of the Research and Statistics Branch but have not found a satisfactory explanation. The Branch reports that no records are kept of how many visas are granted but never used. When the government reports on the size of its immigration program, it speaks of visas granted rather than of settler arrivals: Commonwealth, DIMA, 1998–99 DIMA Annual Report (1999) 37. Successive versions of the report are available at the DIMA website: <http://

[68] The regulations describe this class in sexuality-neutralised terms and, in practice, evidence of a spouse-like relationship is required: Migration Regulations 1994 (Cth) reg 1.09A.

[69] These issues are discussed in the Canadian context, where the family definition is very similar, in Deborah McIntosh, ‘Defining “Family”: A Comment on the Family Reunification Provisions in the Immigration Act’ (1988) 3 Journal of Law and Social Policy 104.

[70] The ratio of female (F) to male (M) migrants for each year is: 1998–99: 43 570 F to 40 573 M; 1997–98: 40 049 F to 37 278 M; 1996–97: 44 875 F to 40 877 M; 1995–96: 54 308 F to 44 831 M; 1994–95: 46 639 F to 40 789 M. These aggregated totals include ‘non-program migration’, which is made up primarily of New Zealand citizens. The female:male ratio among New Zealand entrants is close to 1:1 and does not consistently favour one gender over the other. New Zealand migration is not considered in this paper, nor is it considered by the Australian government as part of its migration program. It is facilitated through the provisions of the 1973 Trans Tasman Travel Arrangement: DIMA, DIMA Fact Sheet 6: New Zealanders in Australia (2000) <http://www.immi.gov.au/facts/06newz.htm> at 1 August 2000 (copy on file with author).

[71] These figures are calculated from the totals reported in Commonwealth, DIMA, 1998–99 DIMA Annual Report (1999) 37. My assumption here is that, while these numbers are based on ‘visas issued’, they would be broadly similar in the case of ‘visas used’.

[72] The story that race casts onto this picture is obviously important. While migrant statistics also identify country of origin, they do not identify the migrant sponsor in this way. Without this information it is impossible to understand adequately how race is mapped onto this variable.

[74] I have calculated the percentage of ‘couple reunions’ as a percentage of spouse, fiancé(e) and interdependency visas.

[75] In Canada, however, same-sex spousal admissions are accommodated under Canada’s vast scheme of ‘humanitarian and compassionate’ exceptions to the law: see Dauvergne, ‘Amorality and Humanitarianism’, above n 13. This system for admission makes the number of visas granted difficult to discern. The 1998 review of the Canadian immigration legislation recommended that same-sex couples be recognised within a reformulated definition of ‘family’: see Canada, Department of Citizenship and Immigration, above n 3. These recommendations have not yet been implemented.

[76] Migration Regulations 1994 (Cth) reg 1.25. This provision remains vulnerable, however, to the now well-documented under-reporting of domestic violence.

[77] One factor contributing to this shift was the recategorisation of a group of migrants who have both family ties and skills the economy values from the ‘family’ to the ‘skilled’ category. This category is now called ‘Australian-Linked’ migration and made up 8466 arrivals in 1998–99. It was formerly known as ‘concessional’ family migration, and made up 8264 arrivals in 1996–97.

[78] As stated in Commonwealth, DIMA, 1998–99 DIMA Annual Report (1999) 37 (emphasis added):

During the year, the [migration] program management strategy was fine-tuned to ensure delivery of the Program announced by the Government and, in particular, to ensure the Skill Stream outcome comprised more than 50 per cent of the total Program, thereby maintaining a Program balance with clear economic benefits for Australia.

[82] The Business Skills Points Test is contained in Migration Regulations 1994 (Cth) reg 1.03. The criteria include business attributes, age, English language ability and net assets.

[83] The ratios were: 1997–98: 12 305 F to 13 680 M; 1996–97: 9291 F to 10 406 M; 1995–96: 9 678 F to 10 330 M; 1994–95: 9638 F to 10 527 M.

[84] Age is of course closely related to chances of economic success, which is why it is also included in the points system.

[86] In some subclasses the partner’s qualifications may also be considered to add some points to an applicant’s total: see above n 80 and accompanying text.

[87] This parallels in the realm of migration Berns’ analysis of the link between citizenship and motherhood in building Australian identity. See Berns, above n 11, 17–21.

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling, to return to it.

Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150, art 1(A)(2) (entered into force 22 April 1954), as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267, art 1 (entered into force 4 October 1967).

[90] People who meet the international definition of refugee are admitted in the offshore program, in most cases directly from overseas refugee camps, and through the onshore refugee determination process. Under the government’s present arrangement, the number of refugees accepted from camps is decreased when onshore determinations rise, thus ensuring that the ‘target’ number for refugees is never exceeded. The remainder of the humanitarian scheme is made up of the ‘special humanitarian program’, aimed at those in situations similar to refugee situations (with preference given to those with ties to Australia or good potential for settling (ie, earning) here: Migration Regulations 1994 (Cth) sch 2, subclasses 201–4, 209, 211–13, 215–16), and the ‘special assistance category’, aimed at specific groups of people in well-known circumstances of strife. The special assistance category in 1998–99 included: citizens of the Former Yugoslavia, Former USSR minorities, Sudanese, Burmese in Thailand, Sri Lankans, Ahmadis and Vietnamese.

[91] See, eg, James Hathaway, ‘Preface: Can International Refugee Law Be Made Relevant Again?’ in James Hathaway (ed), Reconceiving International Refugee Law (1997) xvii; James Hathaway and R Alexander Neve, ‘Making International Refugee Law Relevant Again: A Proposal for Collectivized and Solution-Oriented Protection’ (1997) 10 Harvard Human Rights Journal 115; Patricia Tuitt, False Images: Law’s Construction of the Refugee (1996).

[93] The UNHCR website provides a statistical overview containing these figures: Statistical Unit, United Nations High Commissioner for Refugees, Refugees and Others of Concern to UNHCR: 1997 Statistical Overview (1998) <http://www.unhcr.ch/refworld/refbib/refstat/1998/98intro

[94] Australia’s Women at Risk Program was instituted in 1989, ‘in recognition of the priority given by the UNHCR to the protection of refugee women in particularly vulnerable situations’: Commonwealth, DIMA, DIMA Fact Sheet: Australia’s Women at Risk Program (1998) (copy on file with author); see also Migration Regulations 1994 (Cth) sch 2, subclass 204.

[95] If primary applicants only are considered, women were outnumbered by men in the aggregated humanitarian category in 1998–99 in the ratio 1125 F to 1756 M and in preceding years as follows: 1997–98: 1187 F to 1680 M; 1996–97: 1436 F to 2291 M; 1995–96: 2044 F to 2932 M; 1995–94: 1973 F to 3551 M. In analysing the humanitarian program, I have focused on the totals appearing when primary and secondary applicants are added together. This assumes that when DIMA decides to admit someone, particularly from overseas, it takes dependants into account, and that the dependants are in similarly needy circumstances.

[96] Interview with Antoinette Norris, Humanitarian Entries Section, DIMA (telephone interview, 18 August 2000).

[97] Canada, Immigration and Refugee Board, Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act: Women Refugee Claimants Fearing Gender-Related Persecution (1996) <http://www.irb.gc.ca/legal/guidline/women/index_e.stm> at 1 August 2000 (copy on file with author). See also the introduction provided by the Immigration and Refugee Board Chairperson: Nurjehan Mawani, ‘Introduction to the Immigration and Refugee Board Guidelines on Gender-Related Persecution’ (1993) 5 International Journal of Refugee Law 240.

[98] The shortfall was due to ‘difficulties stemming from the Balkans conflict and the health clearance difficulties in Africa’: Commonwealth, DIMA, 1998–99 DIMA Annual Report (1999) 80.

[99] These numbers do not reflect actual arrivals. The statistics for actual arrivals are persistently and inexplicably lower than the figures for visas issued: see discussion in above n 66.

[100] UNHCR, 1999 Global Appeal: Refugee Women (1999) <http://www.unhcr.ch/fdrs/ga99/women

[101] I argue elsewhere that this generosity is at least partially illusory. It meets the nation’s need to be perceived as good and generous and is grounded in inequality rather than in justice. Thus, humanitarian migration fits in with the other streams in meeting the nation’s needs. See Dauvergne, ‘Amorality and Humanitarianism’, above n 13.

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