The Australian, 29 Jun 2010
Ms Aye, 25, is the daughter of Brigadier-General Zin Yaw, a senior figure in the Burmese dictatorship.
Australia is a party to sanctions supposed to put pressure on the regime by targeting its leaders and their families.
Foreign Minister Stephen Smith decided in 2008 that allowing Ms Aye to stay in the country would be at odds with Australia’s international policy on Burma.
She is expected to return to Burma within days, having fought Mr Smith all the way to the full bench of the Federal Court, and lost.
“Sadly, she’s being punished for something of which she is innocent,” said her lawyer, Tony Silva.
According to the court decision this month, Ms Aye said “she was estranged from her parents because of her father’s association with the brutal Burmese military dictatorship”.
She said she did not depend on her parents financially and had a full-time job waiting once she finished her masters at UWS.
Her argument was that Australia’s sanctions should not penalise “adult children of senior Burmese regime figures, who are not supporters of the regime”.
The three judges who heard her appeal agreed it must fail, although they split 2-1 on the degree to which she could challenge Mr Smith’s essentially political decision in the courts.
One judge, Bruce Lander, said Mr Smith’s decision directly affected her right to stay in Australia.
This meant he should have given her procedural fairness by allowing her to say whether or not she was in fact Brigadier-General Zin Yaw’s daughter. But since her identity was not in question, her appeal had to fail.
The other two judges, Jeffrey Spender and Neil McKerracher, took a more absolute position on the separation of powers issue.
They said Ms Aye was inviting the courts to second-guess Mr Smith’s sanctions policy. This they could not do.