Designated inhospitality: the treatment of asylum seekers who arrive by boat in Canada and Australia.

AuthorTaylor, Luke

This paper argues that there are distinct parallels between changes to the Immigration and Refugee Protection Act enacted by Bill C-31 (2012), in particular the Designated Foreign National regime (DFN), and Australia's treatment of asylum seekers who arrive by boat. It is contended that recent Australian history and policy demonstrate the perils of adopting an ideology of control and exclusion toward asylum seekers instead of a politics of hospitality, and that Australia's present political climate provides a stark and salutary warning to Canada, as it follows a similar path of securitization. The paper first explains what is meant by a politics of hospitality. In Part I, it analyzes Australia's attitude toward, and its treatment of, asylum seekers, focusing in particular on the period since 1989. It is argued that Australia's inhospitable stance toward asylum seekers has had discernible negative outcomes that provide important lessons for Canada. Part II provides a brief historical overview of Canadian policy toward asylum seekers, followed by an analysis of the DFN regime with reference to international law. It then argues that the DFN provisions contravene the Canadian Charter of Rights and Freedoms. The paper concludes by suggesting that Canada is at risk of following Australia's security-oriented, inhospitable stance toward asylum seekers.

Cet article soutient qu'il y a des similarites distinctes entre les modifications apportees a la Loi sur l'immigration et la protection des refugies, promulguee par le Projet de Loi C-31 (2012), en particulier le regime de l'Etranger Designe, et le traitement que reserve l'Australie aux demandeurs d'asile arrives par bateau. En effet, l'histoire et la politique australiennes des dernieres annees mettent en lumiere l'ecueil que represente l'adoption d'une ideologie de controle et d'exclusion envers les demandeurs d'asile, par opposition a une politique fondee sur des valeurs d'hospitalite. Le chmat politique actuel de l'Australie constitue en cela un avertissement severe, mais salutaire pour le Canada qui semble s'engager dans cette meme voie repressive de securisation territoriale. L'article explique d'abord ce qu'on entend par politique d'hospitalite. Ensuite, en premiere partie, il fait l'analyse de l'attitude et du traitement que reserve l'Australie aux demandeurs d'asile, se concentrant sur la periode depuis 1989. L'attitude inhospitaliere qu'a adoptee l'Australie a eu des effets nefastes dont le Canada devrait tirer des lecons. La deuxieme partie fait un bref historique des politiques canadiennes envers les demandeurs d'asile, suivi par une analyse du regime de l'Etranger Designe en regard du droit international. Enfin, l'article soutient que les clauses du regime de l'Etranger Designe contreviennent a la Charte canadienne des droits et libertes. L'article se conclut en suggerant que la Canada est a risque d'adopter la posture axee sur la securite et inhospitahere de l'Australie a l'egard des demandeurs d'asile.

Introduction I. Exclusion and Detention: Australia's Treatment of Asylum Seekers A. A Legacy of Inhospitality B. Detention: Mandatory and Indefinite C Lessons from Australia II. The DFN Regime: Protecting Canada's Immigration System? A. A Mixed Legacy B. The DFN Regime C. The DFN Provisions Contravene the Charter 1. Detention and Imprisonment 2. Fundamental Justice 3. Cruel and Unusual Punishment 4. Section 1 Conclusion In 2009 and 2010, 575 Sri Lankan asylum seekers arrived on boats off the coast of British Columbia. (1) Canada responded by enacting Bill C-31, (2) which, inter alia, empowers the Minister of Citizenship and Immigration to declare that particular non-citizens are Designated Foreign Nationals (DFNs). (3) Persons subject to designation are liable to a suite of measures, including mandatory detention with limited review, and the inability to apply for permanent residence for five years from the date of designation, even if a genuine claim for protection is found to exist. The Canadian response bears striking parallels to Australia's introduction of mandatory and indefinite detention of non-citizens following the arrival of some 735 Cambodian asylum seekers between 1989 and 1994. (4)

Canada's DFN regime and Australia's system of mandatory detention (and offshore processing of asylum seekers) are examples of the shift among Western nations toward framing outsiders as potential security threats. (5) Detention of non-citizens is perhaps the most visible manifestation of the securitization (6) of migration law. (7) Increasingly, asylum seekers are constructed in political discourse as a threat associated with criminality, in part to create "the spectacle of being in control." (8) The language of burden sharing is being "transformed into a language of threats to the security of states" (9) that in turn operates to justify the erosion of core international law principles such as non-refoulement, (10) as well as carceral treatment of non-citizens.

This paper argues that the DFN provisions are antithetical to a politics of hospitality and infringe both the Charter and principles of interna tional law. Moreover, it is suggested that recent Australian history and policy provide a stark and salutary warning to Canada concerning the perils of adopting an ideology of control and exclusion toward asylum seekers instead of a politics of hospitality. (11) Australia is a pertinent comparator because of its decades-long experience with mandatory detention and offshore processing, to which Canadian politicians have referred in justifying Bill C-31. (12) The advent of mandatory detention in Australia engendered a realization on the part of some politicians that the asylum seeker issue could be leveraged for political gain. (13) Ever since, measures designed to exploit this potential, under the guise of protecting Australia's interests, have emerged with alarming frequency. (14) Billions of dollars have been spent constructing offshore processing centres to detain asylum seekers while their claims are processed, (15) despite the fact that most boat arrivals are eventually found to be refugees and admitted to Australia. (16) The management of these facilities by private corporations (17) reflects the link between transnational capital and the international refugee system. (18) Numerous reports attest to the psychological harm caused to detainees by long-term detention. (19) Yet the boats still come.

The DFN regime, which forms part of the IRPA, constitutes a troubling step toward the militaristic Australian approach. To be sure, designation of particular non-citizens is not the only example of Canada's shift away from a politics of hospitality. A recent report prepared by the Harvard Immigration and Refugee Law Clinical Program analyzing the Canada-US Safe Third Country Agreement (20) and Canada's Multiple Borders Strategy (21) concluded, "Canada is systematically closing its borders to asylum seekers and avoiding its refugee protection obligations under domestic and international law." (22) Nevertheless, the DFN provisions enact a securitizing logic that carries potentially destructive consequences for designees and Canadian society. In this respect, Canada may be likened to Australia between 1989 and 1992, when designation and mandatory de tention were introduced. Having enabled the Minister to designate particular persons for mandatory detention and a host of other harsh measures, Canada is now faced with a choice: to continue with a politics of inhospitality, or revert to the type of stance that earned it global acclaim in the 1970s and 1980s for its generosity toward asylum seekers. (23)

It is important to clarify what is meant by a politics of hospitality. In Perpetual Peace, Kant argued that a "state of peace among men living in close proximity" must be established through the creation and acceptance of a form of civil constitution. (24) He proposed three forms of constitution--the most relevant of which for present purposes is ius cosmopoliticum, which conforms "to the rights of world citizenship, sofar as men and nations stand in mutually influential relations as citizens of a universal nation of men." (25) Kant's "Third Definitive Article for a Perpetual Peace" stipulates that "[c]osmopolitan right shall be limited to conditions of universal hospitality." (26) Kant defines hospitality as

the right of an alien not to be treated as an enemy upon his arrival in another's country. If it can be done without destroying him, he can be turned away; but as long as he behaves peaceably he cannot be treated as an enemy. (27) The right is not to remain indefinitely within the borders of a nation exercising hospitality; such a right arises only through "a special, charitable agreement" granted by the state. (28) This limitation is a product of Kant's belief in the importance of boundaries: that a world federation, as opposed to a world government, is a necessary condition for peaceful coexistence. (29)

The principles of cosmopolitanism and hospitality stress the value of what might be termed "inter-jurisdictional respect"; that is, state and individual respect for the legal subjecthood of persons who encounter the legal and political apparatuses of another jurisdiction. (30) Seyla Benhabib has described cosmopolitanism as "the emergence of norms that ought to govern relations among individuals in a global civil society," while "hospitality is of interest because it touches on the quintessential case of an indi vidual coming into contact with an organized and bounded political entity." (31) The right to hospitable treatment "entails a moral claim with potential legal consequences," the justification for which rests upon the "moral injunction against violating the rights of humanity in the individual person." (32) However, Benhabib also extends the Kantian obligation by arguing that, in the context of transnational migration, a cosmopolitan approach...

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