Article Volume 60:2

Designated Inhospitality: The Treatment of Asylum Seekers Who Arrive by Boat in Canada and Australia

Table of Contents

McGill Law Journal Revue de droit de McGill

DESIGNATED INHOSPITALITY: THE TREATMENT OF
ASYLUM SEEKERS WHO ARRIVE BY BOAT IN CANADA

AND AUSTRALIA

Luke Taylor*

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 re-
gime (DFN), and Australias treatment of asylum
seekers who arrive by boat. It is contended that re-
cent Australian history and policy demonstrate the
perils of adopting an ideology of control and exclu-
sion toward asylum seekers instead of a politics of
hospitality, and that Australias present political
climate provides a stark and salutary warning to
Canada, as it follows a similar path of securitiza-
tion. The paper first explains what is meant by a
politics of hospitality. In Part I, it analyzes Aus-
tralias attitude toward, and its treatment of, asy-
lum seekers, focusing in particular on the period
since 1989. It is argued that Australias inhospita-
ble stance toward asylum seekers has had discern-
ible negative outcomes that provide important les-
sons for Canada. Part II provides a brief historical
overview of Canadian policy toward asylum seek-
ers, 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 con-
cludes by suggesting that Canada is at risk of fol-
lowing Australias security-oriented, inhospitable
stance toward asylum seekers.

Cet article soutient quil y a des similarits
distinctes entre les modifications apportes la Loi
sur limmigration et la protection des rfugis, pro-
mulgue par le Projet de Loi C-31 (2012), en parti-
culier le rgime de ltranger Dsign, et le traite-
ment que rserve lAustralie aux demandeurs
dasile arrivs par bateau. En effet, lhistoire et la
politique australiennes des dernires annes met-
tent en lumire lcueil que reprsente ladoption
dune idologie de contrle et dexclusion envers les
demandeurs dasile, par opposition une politique
fonde sur des valeurs dhospitalit. Le climat poli-
tique actuel de lAustralie constitue en cela un
avertissement svre, mais salutaire pour le Cana-
da qui semble sengager dans cette mme voie r-
pressive de scurisation territoriale. Larticle ex-
plique dabord ce quon entend par politique
dhospitalit. Ensuite, en premire partie, il fait
lanalyse de lattitude et du traitement que rserve
lAustralie aux demandeurs dasile, se concentrant
sur la priode depuis 1989. Lattitude inhospita-
lire qua adopte lAustralie a eu des effets n-
fastes dont le Canada devrait tirer des leons. La
deuxime partie fait un bref historique des poli-
tiques canadiennes envers les demandeurs dasile,
suivi par une analyse du rgime de ltranger D-
sign en regard du droit international. Enfin,
larticle soutient que les clauses du rgime de
ltranger Dsign contreviennent la Charte ca-
nadienne des droits et liberts. Larticle se conclut
en suggrant que la Canada est risque dadopter
la posture axe sur la scurit et inhospitalire de
lAustralie lgard des demandeurs dasile.

* Luke Taylor recently graduated from the LLM program at the University of Toronto
Faculty of Law. He previously practiced civil litigation in Australia and is a former re-
searcher with the High Court of Australia. The author would like to thank the anony-
mous referees for their useful feedback and the editorial board of the McGill Law Jour-
nal for their assistance.

Citation: (2015) 60:2 McGill LJ 333 Rfrence : (2015) 60 : 2 RD McGill 333

Luke Taylor 2015

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334

Introduction

I.

Exclusion and Detention: Australias Treatment of
Asylum Seekers
A. A Legacy of Inhospitality
B. Detention: Mandatory and Indefinite
C. Lessons from Australia

II. The DFN Regime: Protecting Canadas 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

335

342
342
344
353

361
361
364
370
371
372
375
375
377

THE TREATMENT OF ASYLUM SEEKERS 335

Introduction
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 re-
sponse bears striking parallels to Australias introduction of mandatory

1 See e.g. Alex Neve & Tiisetso Russell, Hysteria and Discrimination: Canadas Harsh

Response to Refugees and Migrants Who Arrive By Sea (2011) 62 UNBLJ 37 at 38.

2 Bill C-31, An Act to amend the Immigration and Refugee Protection Act, the Balanced
Refugee Reform Act, the Marine Transportation Security Act and the Department of Cit-
izenship and Immigration Act, 1st Sess, 41st Parl, 2012 [Bill C-31].

3 Another particularly controversial change introduced by Bill C-31 is the Designated
Countries of Origin list, which deems certain countries to be safe, meaning that asy-
lum claims of persons from listed countries are accelerated and negative decisions are
not subject to review. Pursuant to s 109.1 of the Immigration and Refugee Protection
Act, SC 2001, c 27 (inserted by s 58 of Bill C-31) [IRPA], the power to designate certain
countries as safe rests with the Minister. Thirty-seven countries have been designated:
Order Designating Countries of Origin, (2012) C Gaz I, 337880 (Immigration and Ref-
ugee Protection Act). The original list of countries has been modified as per Order
Amending the Order Designating Countries of Origin, (2012) C Gaz I, 317 (Immigration
and Refugee Protection Act) and Order Amending the Order Designating Countries of
Origin, (2012) C Gaz I, 1434 (Immigration and Refugee Protection Act). See also Cana-
dian Association of Refugee Lawyers, Designated Countries of Origin, online:
(claiming that the DCO scheme violates
the Charter rights of future claimants from these countries). At around the same time
as the enactment of Bill C-31, the government also issued an Order in Council entitled
Order Respecting the Interim Federal Health Program, 2012, SI/2012-26 (2012) C Gaz
II, 1135 (5 April 2012). That Order, revised by the subsequent Order Respecting the In-
terim Federal Health Program, 2012, SI/2012-26 (28 June 2012), drastically reduced the
scope of healthcare provided to the vast majority of refugee claimants. In July 2014, the
Federal Court held that the changes effected by the Orders amount to cruel and unusu-
al treatment contrary to section 12 of the Canadian Charter of Rights and Freedoms,
Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK),
1982, c 11 [Charter], and the distinction between levels of care pursuant to the Desig-
nated Countries of Origin scheme infringes section 15 of the Charter (see Canadian
Doctors for Refugee Care v Canada (Attorney General), 2014 FC 651 at paras 1112
(available on CanLII) [Refugee Care]). The government has indicated its intention to
appeal (see Laura Payton, Federal Government to Appeal Ruling Reversing Cruel
Cuts to Refugee Health, CBC News (4 July 2014), online: ).

(2015) 60:2 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL

336

and indefinite detention of non-citizens following the arrival of some 735
Cambodian asylum seekers between 1989 and 1994.4
Canadas DFN regime and Australias 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 manifesta-
tion of the securitization6 of migration law.7 Increasingly, asylum seekers
are constructed in political discourse as a threat associated with criminal-
ity, 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 se-
curity of states9 that in turn operates to justify the erosion of core inter-
national 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 poli-
tics of hospitality and infringe both the Charter and principles of interna-

4 See e.g. Janet Phillips & Harriet Spinks, Immigration Detention in Australia (Can-
berra: Parliamentary Library) (updated 20 March 2013) at 2; Robert Manne, Austral-
ias Shipwrecked Refugee Policy: Tragedy of Errors, The Monthly (March 2013), online:
.

5 See Catherine Dauvergne, Making People Illegal: What Globalization Means for Migra-
tion and Law (New York: Cambridge University Press, 2008); Catherine Dauvergne,
Security and Migration in the Less Brave New World (2007) 16:4 Soc & Leg Stud 533;
BS Chimni, Globalization, Humanitarianism and the Erosion of Refugee Protection
(2000) 13:3 J Refugee Studies 243 at 245.

6 Following the Copenhagen School, securitization may be understood as the framing of
a person or object as an existential threat through speech acts, which in turn justifies
the use of exceptional measures (see Barry Buzan, Ole Wver & Jaap de Wilde, Securi-
ty: A New Framework for Analysis (London: Lynne Rienner, 1998) at 2324).

7 See Dauvergne, Less Brave New World, supra note 5.
8 Kim Rygiel, Governing Mobility and Rights to Movement Post 9/11: Managing Irregu-
lar and Refugee Migration through Detention (2012) 16:2 Rev Const Stud 211 at 241.
9 Chimni, Globalization, supra note 5 at 252. In his view, the ideology of humanitarian-
ism operates to establish and sustain global relations of domination, utilizing the dis-
course of human rights to justify the use of force and the imposition of a neo-liberal eco-
nomic and political agenda (ibid at 244). Chimni has also argued that commitment to
principles of deliberative democracy is crucial to reform of the international refugee sys-
tem (see Reforming the International Refugee Regime: A Dialogic Model (2001) 14:2 J
Refugee Studies 151). Seyla Benhabib has similarly espoused the virtues of discourse
ethics in resolving the tension between sovereignty and human rights that lies at the
heart of contemporary debates over policies toward asylum seekers (see Transfor-
mations of Citizenship: The European Union in Seyla Benhabib, The Rights of Others:
Aliens, Residents, and Citizens (Cambridge: Cambridge University Press, 2004) 129).

10 See Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 137 art 33

(entered into force 22 April 1954) [Refugee Convention].

THE TREATMENT OF ASYLUM SEEKERS 337

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 com-
parator 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 en-
gendered 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 Australias
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 corporations17 reflects the

11 This is to be contrasted with former Immigration Minister Jason Kenneys interest in
the Australian model following the arrival of the Sri Lankan boat people (see Canada
Looks to Aussie Experience in Crackdown on Asylum-Seekers, The Globe and Mail
(16 September 2010), online: ). Former Canadi-
an diplomat James Bissett went further, expressly calling for Canada to adopt an Aus-
tralian-style approach to the issue (see James Bissett, Abusing Canadas Generosity
and Ignoring Genuine Refugees: An Analysis of Current and Still-needed Reforms to
Canadas Refugee and Immigration System (2010) Frontier Centre for Public Policy
Policy Series No 96).

12 In debate over the Bill, the Minister justified the detention provisions by pointing out
that as a matter of policy, the left-of-centre social democratic government of Australia
detains all asylum claimants, not just smuggled asylum claimants, until their claims
are determined. See Bill C-31, An Act to Amend the Immigration and Refugee Protec-
tion Act, 2nd reading, House of Commons Debates, 41st Parl, 1st Sess, No 146 (March
6, 2012) at 5879 (Hon Jason Kenney).

13 See Manne, supra note 4.
14 See e.g. Australias Boat People: The PNG Solution, The Economist (27 July 2013),

online: . See also Part I(B), below.

15 See Kazimierz Bem et al, A Price Too High: The Cost of Australias Approach to Asylum

Seekers (Glebe, NSW & Carlton, VIC: A Just Australia & Oxfam Australia, 2007) at 4.
16 See Austl, Commonwealth, Department of Parliamentary Services, Social Policy Sec-
tion, Boat Arrivals in Australia Since 1976 by Janet Phillips & Harriet Spinks (Canber-
ra: Australian Government Publishing Service, 2013) at 17; Mary Crock & Daniel
Ghezelbash, Do Loose Lips Bring Ships? The Role of Policy, Politics and Human Rights
in Managing Unauthorised Boat Arrivals (2010) 19:2 Griffith LR 238 at 244. For sta-
tistics concerning the number of asylum seekers accepted as refugees, see Part I(C), be-
low.

17 See Part I(C), below.

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338

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 trou-
bling step toward the militaristic Australian approach. To be sure, desig-
nation of particular non-citizens is not the only example of Canadas shift
away from a politics of hospitality. A recent report prepared by the Har-
vard Immigration and Refugee Law Clinical Program analyzing the Can-
adaUS Safe Third Country Agreement20 and Canadas Multiple Borders
Strategy21 concluded, Canada is systematically closing its borders to asy-
lum seekers and avoiding its refugee protection obligations under domes-
tic and international law.22 Nevertheless, the DFN provisions enact a se-
curitizing logic that carries potentially destructive consequences for de-
signees and Canadian society. In this respect, Canada may be likened to
Australia between 1989 and 1992, when designation and mandatory de-

18 Chimni argues that the flow of transnational capital plays a causative role in creating
the conditions from which refugees and asylum seekers seek protection (Globalization,
supra note 5). See also BS Chimni, From Resettlement to Involuntary Repatriation:
Towards a Critical History of Durable Solutions to Refugee Problems (2004) 23:3 Refu-
gee Survey Q 55 at 56:

[U]nless there is a clear recognition of the role external economic factors play
in creating the conditions which lead to refugee flows, and steps proposed to
address them, the humanitarian aid community may, in the final analysis,
be seen as an instrument of an exploitative international system which is pe-
riodically mobilized to address its worst consequences.

19 See e.g. Austl, Commonwealth, Australian Human Rights Commission, Submission to the
Joint Select Committee on Australias Immigration Detention Network (2011), online: Aus-
tralian Human Rights Commission at paras 8397;
Submission to the Joint Select Committee on Australias Immigration Detention Network,
at 4, online: Suicide Prevention Australia ; Australian
Medical Association, Media Release, Mandatory detention is harmful to the physical and
mental health of asylum seekers (23 August 2011), online: .

20 Agreement Between the Government of Canada and the Government of the United States
of America for Cooperation in the Examination of Refugee Status Claims from Nationals
of Third Countries, 5 December 2002, Can TS 2004 No 2 (entered into force 29 Decem-
ber 2004) [CanadaUS Safe Third Country Agreement]. Article 5 of the Agreement pro-
vides that asylum seekers who transit through the US may not claim asylum in Canada
(and vice versa).

21 The Multiple Borders Strategy involves measures to deter and deflect asylum seekers
at particular external borderlines, such as airports, and through measures such as visa
screening. See Efrat Arbel & Alletta Brenner, Bordering on Failure: Canada-U.S. Bor-
der Policy and the Politics of Refugee Exclusion (Cambridge, Mass: Harvard Immigra-
tion and Refugee Law Clinical Program, 2013) at 2, 4.

22 Ibid at 1.

THE TREATMENT OF ASYLUM SEEKERS 339

tention were introduced. Having enabled the Minister to designate par-
ticular 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 na-
tions stand in mutually influential relations as citizens of a universal na-
tion of men.25 Kants Third Definitive Article for a Perpetual Peace
stipulates that [c]osmopolitan right shall be limited to conditions of uni-
versal hospitality.26 Kant defines hospitality as

the right of an alien not to be treated as an enemy upon his arrival
in anothers 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 exer-
cising hospitality; such a right arises only through a special, charitable
agreement granted by the state.28 This limitation is a product of Kants
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 in-
dividual respect for the legal subjecthood of persons who encounter the le-
gal and political apparatuses of another jurisdiction.30 Seyla Benhabib has
described cosmopolitanism as the emergence of norms that ought to gov-
ern relations among individuals in a global civil society, while hospitali-
ty is of interest because it touches on the quintessential case of an indi-

23 See Part I(A), below.
24 See To Perpetual Peace: A Philosophical Sketch in Immanuel Kant, Perpetual Peace
and Other Essays on Politics, History, and Morals, translated by Ted Humphrey (Indi-
anapolis: Hackett, 1983) 107 at 111.

25 Ibid at 112 [emphasis in original].
26 Ibid at 118 [emphasis in original].
27 Ibid.
28 Ibid.
29 See ibid at 115, 12425.
30 See e.g. Benhabib, The Rights of Others, supra note 9 at 47.

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vidual coming into contact with an organized and bounded political enti-
ty.31 The right to hospitable treatment entails a moral claim with poten-
tial legal consequences, the justification for which rests upon the moral
injunction against violating the rights of humanity in the individual per-
son.32 However, Benhabib also extends the Kantian obligation by arguing
that, in the context of transnational migration, a cosmopolitan approach
entails

recognizing the moral claim of refugees and asylees to first admit-
tance; a regime of porous borders for immigrants; an injunction
against denationalization and the loss of citizenship rights; and the
vindication of the right of every human being to have rights, that
is, to be a legal person, entitled to certain inalienable rights, regard-
less of the status of their political membership.33

The right to hospitality is not absolute.34 Instead, according to Ben-

habib, it imposes an imperfect or conditional moral duty that permits cer-

31 Seyla Benhabib, Another Cosmopolitanism, ed by Robert Post (Cary, NC: Oxford Uni-
versity Press, 2006) at 20, 21. See also Jeremy Waldron, What is Cosmopolitan?
(2000) 8:2 J Political Philosophy 227 (Kants phrase cosmopolitan right does not mere-
ly pick out a form, a topic or a level of legal analysis; it does also connote a kind of sub-
stantive view or attitude about the basis on which he thinks we ought to proceed when
we are considering law and rights at a global level at 230 [emphasis in original]).

32 Benhabib, The Rights of Others, supra note 9 at 29, 59. Jacques Derrida has suggest-
ed that without the right to hospitality, a new arrival can only be introduced in my
home, in the hosts at home, as a parasite, a guest who is wrong, illegitimate, clandes-
tine, liable to expulsion or arrest. Foreigner Question in Anne Dufourmantelle &
Jacques Derrida, Of Hospitality, translated by Rachel Bowlby (Stanford: Stanford Uni-
versity Press, 2000) 3 at 61.

33 Benhabib, The Rights of Others, supra note 9 at 3 [emphasis in original]. The refer-
ence to the right to have rights draws on Hannah Arendts use of the phrase in The Ori-
gins of Totalitarianism, where she observed that [t]he fundamental deprivation of hu-
man rights is manifested first and above all in the deprivation of a place in the world
which makes opinions significant and actions effective. Something much more funda-
mental than freedom and justice, which are rights of citizens, is at stake when belong-
ing to the community into which one is born is no longer a matter of course and not be-
longing no longer a matter of choice, or when one is placed in a situation where, unless
he commits a crime, his treatment by others does not depend on what he does or does
not do. (Cleveland: World, 1958) at 296. Benhabib argues that the Arendtian right to
have rights encompasses two forms or classes of rights. The first invokes a moral claim
to membership and a certain form of treatment compatible with the claim to member-
ship. The second use of right builds upon this prior claimas a member of a particu-
lar community, one is thus able to claim particularized rights such as civil and political
rights. Benhabib, The Rights of Others, supra note 9 at 56, 5661 [emphasis in origi-
nal]. For a discussion of the problems with Arendts conception of the right to have
rights, see Frank I Michelman, Parsing A Right to Have Rights (1996) 3:2 Constella-
tions 200.

34 According to Derrida, the law of hospitality contains within it a paradox:

THE TREATMENT OF ASYLUM SEEKERS 341

tain exceptions and even derogation in the face of existential threats.35
What is not permitted, though, is the implementation of processing re-
gimes that designate claimants, based on their mode of arrival, for long-
term detention and severely limited civil rights. From a cosmopolitan per-
spective, long-term detention may be seen as an infringement of the obli-
gation not to cause destruction to a person who arrives at the borders of a
polity; the detained person is not positively sent away, but neither is he or
she permitted to enter as a welcome guest. Of course, most if not all asy-
lum seekers are not merely seeking temporary sojourn. However, adopt-
ing Benhabibs expansive view of the right to hospitality, persons should
not be subjected to destructive treatment by reason of their attempt to
seek membership within a particular bounded community.
At the international level, the duty of non-destruction inherent within
Kants formulation of the obligation to accord hospitality is reflected in
the non-refoulement obligation in article 33 of the Refugee Convention.
The extended form of this obligation, in which enemy treatment is under-
stood as encompassing not only denial of entry but also punitive or car-
ceral treatment by reason of ones attempt to seek entry, is reflected in
the Refugee Conventions injunction in article 31(1) against penalizing
refugees on account of their illegal entry or presence … provided they
present themselves without delay to the authorities and show good cause
for their illegal entry or presence, as well as in the prohibition on apply-
ing unnecessary restrictions to the movement of refugees.36 While provi-
sions such as articles 31 and 33 of the Refugee Convention are oriented
toward upholding the rights of individuals, it is important to recall that
refugee law assists not only asylum seekers, but also nations because it
accommodates the claims of those whose arrival cannot be dependably
stopped, even as it vindicates the exclusionary norm in relation to other
would-be entrants.37 In other words, refugee lawwhich may be seen, in

It seems to dictate that absolute hospitality should break with the law of
hospitality as right or duty … [because] absolute hospitality requires that I
open up my home and that I give not only to the foreigner … but to the abso-
lute, unknown, anonymous other, and that I give place to them, that I let
them come … without asking of them either reciprocity (entering into a pact)
or even their names. The law of absolute hospitality commands a break with
hospitality by right, with law or justice as rights (supra note 32 at 25).

35 See Benhabib, The Rights of Others, supra note 9 at 3536. This limitation is also
contained in the Refugee Convention, supra note 10, art 1(F) of which excludes certain
classes of persons from protection on the basis of crimes committed or threats posed to
the host states security.

36 See Refugee Convention, supra note 10, art 31(2). Also relevant is the requirement that

states provide lawful refugees with travel documents (see ibid, art 28).

37 James C Hathaway, Why Refugee Law Still Matters (2007) 8:1 Melbourne J Intl L 88

at 99.

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342

part, as a legal instantiation of the principles of hospitality and cosmopoli-
tanismoffers a way of addressing the tension between sovereignty and
human rights38 in the context of transnational migration.

Part I analyzes Australian policies toward asylum seekers. It begins
with a historical overview in order to contextualize more recent develop-
ments. It then parses the changes since 1989 with a view toward demon-
strating the lessons to be learned by Canada from Australias inhospitable
approach to asylum seekers. Part II analyzes Canadas position vis–vis
asylum seekers, with a particular emphasis on the DFN regime. It begins
with a brief foray into the history of Canadas treatment of asylum seek-
ers. It then analyzes the mechanics of the DFN regime by reference to
principles of international law. Lastly, a detailed argument is presented
as to why the DFN regime contravenes the Charter. The paper concludes
by suggesting that through the creation of Bill C-31, Canada risks adopt-
ing Australias security-oriented, inhospitable stance toward asylum
seekers.

I. Exclusion and Detention: Australias Treatment of Asylum Seekers

A. A Legacy of Inhospitality

Definitional uncertainty regarding citizenship and an inhospitable at-
titude toward non-white foreigners (and Indigenous Australians) is a con-
stitutive aspect of Australian law and culture. The drafters of the Austral-
ia Constitution39 deliberately refrained from defining the meaning and
parameters of citizenshipat least in part to exclude non-white persons
as constituent members of the Australian polity.40 Instead, the matter was
left to Parliament, whose first legislative measure post-Federation was
the Immigration Restriction Act 1901 (Cth). That Act spelled out a distinct
policy of racial bias in favour of white European immigrantsthe infa-
mous White Australia policy.41 While Australia admitted large numbers of

38 The paradox of democratic legitimacy, according to Benhabib. The Rights of Others,

supra note 9 at 47.

39 Commonwealth of Australia Constitution Act 1900 (Cth) [Australian Constitution].
40 See Mary Crock, Alien Fears: Politics and Immigration Control (2010) 29:2 Dialogue
20 at 21; Kim Rubenstein, Australian Citizenship Law in Context (Sydney: Lawbook,
2002) at 3839. Citizenship was not defined in Australian law until the passage of the
Nationality and Citizenship Act 1948 (Cth) (see Mary Crock, Defining Strangers: Hu-
man Rights, Immigrants and the Foundations for a Just Society (2007) 31:3 Melbourne
UL Rev 1053 at 1058).

41 The genesis of the policy was concern over Chinese immigration, which had begun in
earnest in the mid-nineteenth century as part of the Australian gold rush (see Don
McMaster, Asylum-Seekers and the Insecurity of a Nation (2002) 56:2 Austl J Intl Af-

THE TREATMENT OF ASYLUM SEEKERS 343

Europeans in the wake of World War II,42 it is a testament to the coun-
trys deep anxiety regarding immigration, as well as the depth of its racist
foundations, that the White Australia policy was not formally abolished
until 1975.43
Attitudes toward refugees shifted in the 1970s. The dismantling of the
White Australia policy seemed to herald a different attitude toward mi-
grants; particularly those seeking protection. The arrival of some 2,000
Vietnamese asylum seekers by boat between 1976 and 1981 prompted the
establishment of formal procedures to determine refugee status; those
measures did not involve mandatory detention, temporary visas or inter-
diction of boats.44 Part of the response was the establishment of a Com-
prehensive Plan of Action to facilitate the transfer of tens of thousands of
Vietnamese nationals to Australia.45 It was during this period that the
term multiculturalism, which was borrowed from Canada, entered the
Australian cultural and political lexicon.46
The latter part of the 1980s saw a retreat from hospitality in Austral-

ia. The
increasingly multicultural nature of Australian society
generated in no small part by the generosity demonstrated toward Viet-
namese refugees in the 1970sreignited latent concerns over the compo-
sition of the Australian population.47 This anxiety, in conjunction with the
shift in global power relations and conceptions of security engendered by
the end of the Cold War,48 contributed to a climate in which the Cambodi-
an asylum seekers who began to arrive on Australian shores in 1989
were offered not refuge but prolonged detention.49

The detention of the Cambodians was made possible by legislation
passed in 1989,50 which enabled the detention of persons on board a vessel

fairs 279 at 281). A precursor to the Immigration Restriction Act 1901 was Victorias Act
to Make Provision for Certain Immigrants 1855 (Vic), which defined immigrant as any
adult male of Chinese descent (see Crock, Alien Fears, supra note 40 at 20).

42 See McMaster, Insecurity of a Nation, supra note 41 at 282.
43 See Racial Discrimination Act 1975 (Cth).
44 See Crock, Alien Fears, supra note 40 at 22.
45 See ibid at 21.
46 See McMaster, Insecurity of a Nation, supra note 41 at 283.
47 See generally Anthony Burke, Fear of Security: Australias Invasion Anxiety (New York:

Cambridge University Press, 2008).

48 In the Australian context, see Richard Devetak, In Fear of Refugees: The Politics of

Border Protection in Australia (2004) 8:1 Intl JHR 101 at 102.

49 Manne, supra note 4.
50 See Migration Legislation Amendment Act 1989 (Cth) [1989 Act]. The bulk of the 1989
Act was directed toward reducing ministerial discretion and implementing a system of

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at the time of its arrival in port if an authorized officer reasonably be-
lieve[d] that the person was seeking to enter Australia in circumstances
in which the person would become an illegal entrant, for such time until
the departure of the vessel from its last port of call in Australia.51 Offi-
cially, the motivation for the introduction of the discretionary detention
regime was to ensure that persons arriving by boat were not forced to re-
turn to sea in unseaworthy vessels.52 Whether or not the amendment was
in fact motivated by compassion, it became the vehicle by which Australia
began to construct and treat asylum seekers not only as undesirable oth-
ers, but as criminals and security threats to be deterred and detained.

B. Detention: Mandatory and Indefinite

In the early 1990s, Australia experienced a dramatic increase (by Aus-
tralian standards) in the number of asylum claims by people who had ar-
rived by boat.53 By June 1992, 478 people were in immigration detention:54
421 of those people were boat arrivals, 306 of whom were Cambodian.55 In
the same year, lawyers of thirty-six Cambodians whose applications for
asylum had been rejected instituted proceedings to challenge the rejec-

determination based on statutory criteria. See Mary Crock, A Legal Perspective on the
Evolution of Mandatory Detention in Mary Crock, ed, Protection or Punishment: The
Detention of Asylum-Seekers in Australia (Sydney: Federation Press, 1993) 25 at 27;
Austl, Commonwealth, Department of the Parliamentary Library, Ministerial Discre-
tion in Migration Matters: Contemporary Policy Issues in Historical Context (Current
Issues Brief No 3 200304) by Dr Kerry Carrington (Canberra: Information and Re-
search Services, Department of the Parliamentary Library, 2003) at 35.

51 Migration Act 1958 (Cth), s 36 [Migration Act] as it appeared including amendments up
to Act No 151, 1988, as amended by Migration Legislation Amendment Act 1989 (Cth), s
17.

52 Austl, Commonwealth, Senate, Migration Legislation Amendment Bill 1989 (Explana-

tory Memorandum) (Commonwealth Government Printer, 1989) at para 109.

53 See Glenn Nicholls, Deported: A History of Forced Departures from Australia (Sydney:
UNSW Press, 2007) at 133. See also Crock, Evolution of Mandatory Detention, supra
note 50 at 25: Beginning in 1989, Australia experienced a sudden rise in the number of
people seeking asylum both within the country and at point of entry.

54 See Phillips & Spinks, Immigration Detention in Australia, supra note 4 at 4. In prac-
tice, this comprised detention at the Westbridge (now Villawood) Centre in Sydney.
While the premises were unfenced, detainees were not permitted to leave the centre
and were required to report daily to Australian Protective Services (see ibid).

55 See ibid. By the middle of 1993, asylum seekers who had arrived in 1989 and who were
still in custody had experienced an average of 1,331 days in detention. Those who were
no longer in custody had been detained for an average of 974 days. See Mary Crock,
Border Refugee Claimants at a Glance in Mary Crock, ed, Protection or Punishment:
The Detention of Asylum-Seekers in Australia (Sydney: Federation Press, 1993) xx at
xxi.

THE TREATMENT OF ASYLUM SEEKERS 345

tions.56 Despite judicial orders setting aside the decisions rejecting the ap-
plicants claims, Parliament pre-empted a scheduled application for their
release by passing the Migration Amendment Act 1992.57 That 1992 Act
introduced mandatory detention into Australian law.58 In doing so, the
1992 Act signalled a profound shift away from the hospitality demonstrat-
ed in the 1970s toward a securitizing approach that has influenced Aus-
tralian policy ever since. Crucially, the 1992 Act established the class of
designated person, defined in part by a temporally specific provision ap-
plying the regime to non-citizens who arrived on boats between 19 No-
vember 1989 and 1 December 199259a definition that was clearly de-
signed specifically to capture the Cambodians who had arrived in that pe-
riod.60

In Chu Kheng Lim, which challenged the detention of the thirty-six
Cambodians and the provisions of the 1992 Act, the High Court held that
the detention of the asylum seekers up until the passage of the 1992 Act
was unlawful by reason of the very provision under which detention of
designated illegal entrants had been introduced in 1989.61 However, the
Court was unanimous that the mandatory detention regime introduced by
the 1992 Act was a valid exercise of the Commonwealths power over al-
iens under section 51(xix) of the Australian Constitution.62 The result of

56 See Susan Kneebone, The Australian Story: Asylum Seekers outside the Law in Su-
san Kneebone, ed, Refugees, Asylum Seekers and the Rule of Law (New York: Cam-
bridge University Press, 2009) 171 at 186.

57 Migration Amendment Act 1992 (Cth) [1992 Act].
58 See ibid, s 3, amending Migration Act 1958 (Cth), ss 54L54M.
59 See ibid, amending Migration Act 1958 (Cth), s 54K (defining designated person).
60 See Chu Kheng Lim and Others v Minister for Immigration, Local Government and
Ethnic Affairs (1992), 176 CLR 1, 110 ALR 97 [Chu Kheng Lim] (an argument that this
specificity amounted to usurpation of judicial power by the targeting of persons involved
in extant judicial proceedings was rejected on the basis that the powers to detain in
custody conferred by Div 4B are an incident of the executive powers of the exclusion,
admission and deportation and, being non-punitive in character, are not part of the ju-
dicial power of the Commonwealth at 120 (Brennan, Deane & Dawson JJ)).

61 See Migration Act, supra note 51, s 88, as it appeared including amendments up to Act
No 59, 1989 (formerly s 36). In what must count as one of the most cynical measures
enacted in this period, Parliament effectively forestalled the possibility of a monetary
remedy in respect of that unlawful detention by legislation that capped any damages
award to a designated person for wrongful detention at one dollar per day (see Migra-
tion Amendment Act (No. 4) 1992 (Cth), s 6. See also Crock, Evolution of Mandatory
Detention, supra note 50 at 34).

62 See Chu Kheng Lim, supra note 60 at 113. The existence of significant restraints on
the operation of the detention regime (the limiting of detention to 273 days following
the making of an application for an entry permit (s 54Q) and provision for the removal
of designated persons who requested removal (s 54P)) meant that the powers of deten-
tion conferred by ss 54L and 54N were an incident of the executive powers of exclusion,

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Chu Kheng Lim was that the plaintiffs remained in immigration deten-
tion.63 In 1997, the United Nations Human Rights Committee found in A
v. Australia64 that the continued detention of the Cambodian applicant by
Australian authorities for four years constituted arbitrary detention con-
trary to article 9, paragraph 1 of the International Covenant on Civil and
Political Rights.65

In 1994, more comprehensive amendments to the detention regime
came into effect.66 Mandatory detention was extended to all unlawful
non-citizens and the 273-day limit on such detention was removed. In es-
sence, the changes coming into force in 1994 created a binary distinction
between lawful and unlawful non-citizens: the former were, inter alia,
non-citizens who held a valid visa; the latter were non-citizens in the mi-

admission and deportation of aliens and [were] not, of their nature, part of the judicial
power of the Commonwealth (ibid at 11920). This being said, the Court struck down s
54R, which provided that a court is not to order the release from custody of a designat-
ed person, as an impermissible encroachment upon the judicial process (ibid at 121).

63 In October 1993, the Minister for Immigration offered Cambodian asylum seekers in
Australia the opportunity to obtain permanent residence if they agreed to return to
Cambodia (at Australias expense) for one year, after which time they would be able to
return to Australia (at their own expense) if they had a sponsor who would provide ac-
commodation and financial support for six months. Unsurprisingly, less than half of the
Cambodian detainees availed themselves of this option. See Don McMaster, Asylum
Seekers: Australias Response to Refugees (Melbourne: Melbourne University Press,
2001) at 88. The remaining Cambodian refugees were released in late 1995 on humani-
tarian grounds (see ibid at 89).

64 Human Rights Committee, Communication No 560/1993 (A v Australia), UNCCPR,

59th Sess, UN Doc CCPR/C/59/D/560/1993 (1997) at para 9.4 [A v Australia].

65 Opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March
1976) [ICCPR]. Furthermore, the Committee in A v Australia held that the striking
down of s 54R in Chu Kheng Lim did not insulate the mandatory detention provisions
in the 1992 Act from scrutiny because court review of the lawfulness of detention under
article 9, paragraph 4, which must include the possibility of ordering release, is not lim-
ited to mere compliance of the detention with domestic law, whereas under the Migra-
tion Act 1958, review was, in fact, limited to an assessment of whether [the applicant]
was indeed a designated person within the meaning of the Migration Amendment Act
(A v Australia, supra note 64 at para 9.5). The Committee held, pursuant to the ICCPR,
supra note 65, art 2, para 3, that Australia was obliged to provide A with adequate
compensation for the length of the detention to which A was subjected (A v Australia,
supra note 64 at para 11). The Australian government rejected the Committees find-
ings and refused to pay compensation (see Austl, Commonwealth, Australian Human
Rights Commission, Human Rights Explained: Case Studies: Complaints Involving
(2009), online: ).

66 See Migration Reform Act 1992 (Cth) [Reform Act]. The need for comprehensive regula-
tions delayed the Reform Act coming into force until 1 September 1994 (see Nicholls,
supra note 53 at 134).

THE TREATMENT OF ASYLUM SEEKERS 347

gration zone who were not lawful non-citizens.67 Thus, with minor excep-
tions, any person in Australia without a valid visa was thenceforth an un-
lawful non-citizen. Section 54W68 (now in expanded form section 189) of
the Migration Reform Act 1992 made detention of all unlawful non-
citizens mandatory, while section 54ZD(1) (now in amended form section
196(1)) introduced indefinite detention.69 Ten years later, in Al-Kateb v.
Godwin,70 the High Court upheld the validity of indefinite detention; in a
companion case, the Court ruled that conditions of detention are irrele-
vant to their legality.71 Soon after, in Re Woolley,72 the High Court upheld
the Migration Acts detention provisions in respect of children.73

In spite of the introduction of mandatory detention, asylum seekers
continued to arrive on Australias shores. Unauthorized boat arrivals in-
creased from 200 in 1998 to around 1,500 in October 1999,74 prompting

67 See Reform Act, supra note 66, s 7, re-enacting Migration Act 1958 (Cth), ss 1415 as

they appeared including amendments up to Act No 85, 1992.

68 Reform Act, supra note 66, s 13, inserting Migration Act 1958 (Cth), ss 54W (detention

of all unlawful non-citizens) and ZD(1) (indefinite detention).

69 In addition, the Reform Act purported to prevent the release, even by a court, of an un-
lawful non-citizen from detention (otherwise than for removal or deportation) unless the
non-citizen [had] made a valid application for a visa and he or she [had] satisfied all of
the criteria for the visa (supra note 66, s 13, inserting Migration Act 1958 (Cth), s
54ZD(3)). Bridging visas were also made unavailable to unauthorized (boat) arrivals,
and detainees were made liable for the costs of their immigration detention (though on-
ly some 2.5% of debts were recovered in the 20042005 fiscal year and the policy was
abolished in 2008) (see Phillips & Spinks, Immigration Detention in Australia, supra
note 4 at 6, n 30, 7).

70 [2004] HCA 37, 219 CLR 562 [Al-Kateb]. For an overview and commentary on Al-Kateb
see Matthew Zagor, Uncertainty and Exclusion: Detention of Aliens and the High
Court, Case Comment on Al-Kateb v Godwin (2006) 34:1 Fed L Rev 127.

71 See Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous

Affairs, [2004] HCA 36, 219 CLR 486.

72 Re Woolley and Another; Ex parte Applicants M276/2003, [2004] HCA 49, 225 CLR 1.
73 Subsequently, laws were passed in 2005 that required determination of detained asy-
lum seekers applications for protection visas within 90 days, and provided that minors
should only be detained as a last resort (see Kneebone, supra note 56 at 194 (referring
to Migration and Ombudsman Legislation Amendment Act 2005 (Cth), Schedule 1, s 1
(90-day limit) and Migration Amendment (Detention Arrangements) Act 2005 (Cth),
Schedule 1, Part 1, s 1 (detention of minors as last resort)).

74 See The Hon Phillip Ruddock MP (Minister for Immigration and Multicultural Affairs),
Media Release, MPS 143/99, Ruddock Announces Tough New Initiatives (13 October
1999) online: Parliament of Australia . According to Nicholls,
supra note 53 at 136, the final figure for 1999 was 3,274 asylum seekers arriving by boat.
The countries of origin also changed during this period, with increasing numbers of asy-
lum seekers from Afghanistan, Iran, and Iraq.

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348

the government to establish Temporary Protection Visas (TPVs).75 The
(then) Minister for Immigration and Multicultural Affairs, Phillip Rud-
dock, stated at the time that the measures would remove incentives for
asylum seekers to arrive without authorization and remove the problem
of forum shopping by refugees.76 This was quickly proved wrong, as
whole families boarded boats to Australia in order to remain together.77

The infamous MV Tampa incident in August 200178 and its aftermath
were the natural outgrowth of [the] restrictive and deterrent policies to
refugees which had developed over the previous decade.79 In the wake of
Tampa, the government introduced the so-called Pacific Solution.80 Un-

75 See Migration Amendment Regulations 1999 (No. 12) (Cth), Schedule 1. The new TPVs
permitted the holder to remain in (but not re-enter) Australia for a maximum of 36
months (see ibid, s 785.5). TPVs also prevented a holder from applying for a substantive
visa other than a protection visa (see ibid, s 785.6), and they prevented a holder from
sponsoring their family to come to Australia (see ibid, s 785.211).

76 Ruddock, supra note 74. This was despite comments made by the Minister in 1998 that
temporary protection visas would be highly unconscionable (see Fethi Mansouri &
Michael Leach, The Evolution of the Temporary Protection Visa Regime in Australia
(2009) 47:2 Intl Migration 101 at 103).

77 Kneebone, supra note 56 at 17778.
78 Briefly, in August 2001, the Norwegian-registered ship, MV Tampa, rescued some 433
Afghans from a sinking boat in international waters near Australia. The captain at-
tempted to dock at the Australian territory of Christmas Island but was refused per-
mission to land by the Australian government, which sent the Special Air Service onto
the boat. Legal proceedings were instituted to have the Afghans brought into Austral-
ias migration zone and released on the basis that their detention was unlawful. At first
instance, the Federal Court held that detention and expulsion from Australian territory
contravened Australian law (see Victorian Council for Civil Liberties Inc v Minister for
Immigration and Multicultural Affairs, [2001] FCA 1297, 110 FCR 452). However, on
appeal, a majority of the Full Federal Court held that the Australian Constitution con-
ferred executive power upon the Commonwealth to board the Tampa and expel non-
citizens (Ruddock v Vadarlis, [2001] FCA 1329, 110 FCR 491). See generally Mary
Crock & Ben Saul, Future Seekers: Refugees and the Law in Australia (Sydney: Federa-
tion Press, 2002) at 3537.

79 Kneebone, supra note 56 at 172. See also Matt McDonald, Deliberation and Resecuriti-
zation: Australia, Asylum-Seekers and the Normative Limits of the Copenhagen
School (2011) 46:2 Austl J Political Science 281 at 285.

80 See the six Acts that were passed in the wake of Migration Amendment (Excision from
Migration Zone) Act 2001 (Cth): Migration Amendment (Excision from Migration Zone)
(Consequential Provisions) Act 2001 (Cth); Border Protection (Validation and Enforce-
ment Powers) Act 2001 (Cth); Migration Legislation Amendment Act (No 1) 2001 (Cth);
Migration Legislation Amendment Act (No 5) 2001 (Cth); Migration Legislation
Amendment Act (No 6) 2001 (Cth); Migration Legislation Amendment (Judicial Review)
Act 2001 (Cth). See Plaintiff S157/2002 v Commonwealth, [2003] HCA 2, 211 CLR 476
for an example of an attempt to restrain judicial review of decisions by the Refugee Re-
view Tribunal via the Migration Legislation Amendment (Judicial Review) Act 2001
(Cth).

THE TREATMENT OF ASYLUM SEEKERS 349

der this policy, the territories of Christmas Island, Ashmore and Cartier
Islands, and the Cocos (Keeling) Islands81 were excised from Australias
migration zone, and agreements were reached with the governments of
Nauru and Papua New Guinea to process asylum seekers on Nauru and
Manus Island (PNG) instead of Australia.82 To implement this strategy,
the government adopted a military-style operation of intercepting boats;
either turning them back to Indonesia or sending them to Australian off-
shore processing centres.83 Persons arriving at an excised offshore place
were denied the ability to make a valid application for a visa, including
protection visas, without approval by the Minister.84
A more hospitable approach to asylum seekers appeared likely with
the 2007 election of the Labor Party, which had campaigned in part on a
platform of ending the Pacific Solution. In early 2008, Labor resettled the
last 21 asylum seekers on Nauru in Australia and announced that Nauru
and Manus Island would no longer be used as processing centres. TPVs
for persons found to be refugees were also abandoned.85 Nevertheless, off-
shore processing remained in operation at Christmas Island and long-
term mandatory detention continued unabated86as did the arrival of
boats. Whether as a direct result of Labors somewhat less punitive
stance, or by reason of other regional factors, there was a significant in-
crease in the arrivals of boats following the dismantling of the Pacific So-

81 Along with any other prescribed territory, island, sea installation or resources installa-
tion: Migration Amendment (Excision from Migration Zone) Act 2001, supra note 80,
Schedule 1, 1 Subsection 5(1).

82 See e.g. Crock, Defining Strangers, supra note 40 at 1068, pointing out that this ap-
proach was not original and had been adopted by Charles II during the Restoration.
Its more immediate policy predecessor was the United States governments creation of
an offshore detention processing centre in Guantnamo Bay (see ibid). That regime was
held legal by the United States Supreme Court in Sale v Haitian Centers Council, Inc,
509 US 155, 113 S Ct 2549 (1993).

83 See Mary Crock, In the Wake of the Tampa: Conflicting Visions of International Refu-
gee Law in the Management of Refugee Flows (2003) 12:1 Pac Rim L & Poly J 49 at
7079.

84 Migration Act, supra note 51, ss 5, 46A, inserted by Migration Amendment (Excision
from Migration Zone) Act 2001 (Cth), Schedule 1, s 4. Between 2001 and February 2008
when the Pacific Solution was dismantled, 1,637 people were detained in the Nauru
and Manus Island facilities; 70 per cent of those were found to be refugees and most
were eventually settled in Australia (see Phillips & Spinks, Immigration Detention in
Australia, supra note 4 at 10).

85 See Mansouri & Leach, supra note 76 ([e]xisting TPV holders would receive Resolu-
tion of Status (subclass 851) visas, with equivalent rights to permanent protection visa
holders at 119).

86 See Phillips & Spinks, Immigration Detention in Australia, supra note 4 at 1112. In
October 2011, 39 per cent of detainees had been in detention for more than twelve
months (see ibid).

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350

lution.87 In 2008, seven boats arrived on Australian territory; in 2009 this
number jumped to 60, and by 2012 it reached 278. As of June 30, 2013,
the number of boats arrived had already reached 196.88 Even more strik-
ing was the increase in the number of people making the journey: from
161 in 2008, to 17,202 in 2012, to 13,108 as of June 30, 2013.89 Labor pan-
icked at this new reality, introducing a series of legally and politically
flawed measures. The Malaysia Solution was devised, under which Aus-
tralia would send up to 800 boat people to Malaysia, and in return Aus-
tralia would accept 4,000 refugees from Malaysia over four years. Before
any transfers occurred, the plan was struck down by the High Court.90 In
response to that case and the recommendation of an Expert Panel91 con-
vened by the government, the Gillard Government passed legislation ena-
bling the Minister to designate certain places as regional processing coun-
tries, without reference to the international obligations or domestic law
of that country;92 the Minister subsequently designated PNG as a region-

87 See Phillips & Spinks, Boat Arrivals in Australia, supra note 16 at 22.
88 See ibid.
89 See ibid. Figures from the Department of Immigration reveal that most asylum seekers
in these years hailed from Afghanistan, Iran, Pakistan, and Sri Lanka (a significant
number of persons are also listed as stateless; presumably a large number of those per-
sons are Palestinian) (see Australian Government, Department of Immigration and Cit-
izenship, Asylum StatisticsAustralia: Quarterly TablesMarch Quarter 2013
(Belconnen, ACT, Australia: Systems, Program Evidence and Knowledge Section, 2013)
at 10, online: Department of Immigration and Border Protection ).

90 See Plaintiff M70/2011 v Minister for Immigration and Citizenship, [2011] HCA 32,
244 CLR 144 [Plaintiff M70/2011]. In brief, the majority found that the criteria govern-
ing the Ministers decision to issue a declaration authorizing removal were jurisdic-
tional facts, satisfaction of which was required for a declaration to be valid. Section
198A(3)(a) of the Migration Act empowered the Minister to declare that a country pro-
vided, for asylum seekers, access to effective procedures for assessment, and protection
pending determination of status; and that the country met relevant human rights
standards in providing such protection. The Court held that the absence of such access
and protections under Malaysian law meant that the jurisdictional facts necessary to
make a declaration were not established; accordingly, the Ministers decision was be-
yond power. See especially ibid at paras 10136, Gummow, Hayne, Crennan and Bell
JJ.

91 See Austl, Commonwealth, Report of the Expert Panel on Asylum Seekers (August

2012).

92 Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012
(Cth), s 198AA(d). However, to address the High Courts finding in Plaintiff M70/2011,
supra note 90, s 198AB(2) requires the Minister to have regard to the national inter-
est in making a designation, which in turn requires consideration of whether the coun-
try has provided assurances that it will not expel or return a person taken to the coun-
try under section 198AD to another country where his or her life or freedom would be
threatened on account of his or her race, religion, nationality, membership of a particu-
lar social group or political opinion (ibid, s 198AB(3)(a)(i)).

THE TREATMENT OF ASYLUM SEEKERS 351

al processing centre.93 A challenge to the provision conferring power on
the Minister to designate regional processing centres, and to the designa-
tion of PNG as such a centre, was recently rejected by the High Court.94

The current Liberal-National Government took power in 2013 on the
back of a campaign that defiantly eschewed a politics of hospitality and
promised to stop the boats.95 Among the new governments first
measures was the implementation of its Operation Sovereign Borders pol-
icy, which centres on a Pacific Solution-style military-led response to
combat people smuggling and to protect our borders.96 The key compo-
nent of the policy is external disruption;97 that is, forcibly turning back
boats.98 Other measures include paying Indonesian villagers for infor-
mation, purchasing unseaworthy boats, increasing the number of Austral-
ian Federal Police in overseas missions, and bolstering Australias border
protection fleet.99 A ban on publication of the number of boat arrivals also
forms part of the solution.100

93 See Memorandum of Understanding Between the Government of the Independent State
of Papua New Guinea and the Government of Australia, Relating to the Transfer to, and
Assessment and Settlement in, Papua New Guinea of Certain Persons, and Related Is-
sues, 8 September 2012; Plaintiff S156/2013 v Minister for Immigration and Border
Protection, [2014] HCA 22 at para 15, 2014 WL 2726182 (WL Can) [Plaintiff
S156/2013].

94 See Plaintiff S156/2013, supra note 93. See also Chu Kheng Lim, supra note 60; Al-
Kateb, supra note 70. The Court applied its earlier decisions in Chu Kheng Lim and Al-
Kateb in finding that the designation provisions are within the aliens power in s 51(xix)
of the Constitution. The challenge to the Ministers exercise of the power also failed on
the basis that he was not obliged to have regard to considerations beyond the statutori-
ly mandated national interest.

95 See e.g. PNG Solution, supra note 14. Crocks observation in 2007 that [i]ncreasingly
harsh and punitive laws … have been made quite plainly with the voting electorate in
mind remains apposite (Defining Strangers, supra note 40 at 1062).

96 Australian Liberal-National Coalition, The Coalitions Operation Sovereign Borders
Policy (Barton, ACT, Australia: Liberal-National Coalition, July 2013) at 8, online:
.

97 Ibid at 7.
98 See Institute of Public Affairs, Tony Abbott on 70 Years of the IPA (8 April 2013),
online: YouTube . The text of the speech
was publicly available on the Liberal Partys website until late October 2013. For media
coverage of the speech, see e.g. Matthew Knott, Tony Abbott Talks God and Western
Values Behind Closed Doors, Crikey
(5 April 2013), online: .

99 See Alex Reilly, Comment: Where To Now for Asylum Policy under Abbott?, SBS News,
(13 September 2013), online: .

100 See ibid.

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352

Perhaps the most striking aspect of the governments recent approach
is the return to a post-Tampa ideology of control and framing of asylum
seekers as undesirable others. The newly dubbed Minister for Immigra-
tion and Border Protection issued a directive in October 2013 to all federal
public servants to use the term illegals when referring to asylum seek-
ers.101 The government has adopted an approach of deliberate obfuscation
concerning its policy on irregular maritime arrivals,102 as well as the
number of boats that have been successfully disrupted and those that
have made it to Australian waters or the mainland.103 Nevertheless, re-
ports have emerged of asylum seekers being forcibly returned to Indone-
sia using lifeboats specially purchased for the task by the government.104
Waiting times for initial review by the UNHCR in Indonesia now exceed
twelve months.105 Moreover, allegations of abuse by the Australian Navy
have been made by some of the people on board the disrupted vessels.106
Most recently, a boat carrying 157 Tamil asylum seekers was intercepted
off the coast of Christmas Island. The asylum seekers were transferred to
an Australian Customs vessel, where they remained for three weeks in
windowless rooms for some twenty-one hours a day, without access to le-

101 See e.g. Scott Morrison Defends Decision to Call Asylum Seekers Illegals, The Guard-
(21 October 2013), online: .

102 See e.g. David Wroe & Michael Gordon, Motion Passed to Force Immigration Minister
Scott Morrison to Report Asylum-seeker Incidents at Sea, Sydney Morning Herald (15
November 2013) 13, online: ; David Wroe & Michael Gordon, Immigration Minister
Scott Morrison Stays Silent on Asylum Boats, Sydney Morning Herald (15 November
2013), online: .

103 In keeping with this trend, the Illegal Maritime Arrivals page on the Immigration
Departments newly updated website remained conspicuously devoid of any information
until early December 2013, when a brief notice appeared advising that TPVs would not
be reintroduced and that a cap had instead been placed on the number of protection vi-
sas to be granted in the 201314 financial year.

104 See George Roberts, Asylum Seekers Give Details on Operation Sovereign Borders
Lifeboat Turn-Back, ABC News (18 March 2014), online: .

105 See e.g. Stopping the Pull Factors: Asylum Seekers in Indonesia, ABC News Radio (22
July 2014) (radio broadcast), online: .

106 See ibid.

THE TREATMENT OF ASYLUM SEEKERS 353

gal advice.107 Eventually, the asylum seekers were briefly brought to Aus-
tralia before being removed to Nauru.108

In December 2014, the Australian government passed legislation109
that, inter alia, reintroduces TPVs110 (including restrictions on the coun-
tries which holders may visit111); permits the Minister to set annual limits
on the number of protection visas to be issued;112 provides that non-
refoulement obligations under the Refugee Convention are irrelevant in
respect of unlawful non-citizens;113 and institutes a new fast-track system
of refugee determination for unauthorized maritime arrivals.114

C. Lessons from Australia

Since the arrival of Cambodian asylum seekers in 1989, Australia has
been at the vanguard of the international trend toward securitizing mi-
gration laws and treating asylum seekers as threats, rather than as peo-
ple deserving protection (or at the very least, a proper process of deter-
mining claims for protection). This inhospitable approach may be seen as
a continuation of, or vestigial link to, the White Australia policy and the
control Australia wishes to exert over its national identity.115 It is also a
response driven by political expediencythe language of protection is de-
ployed not in the form of an offer to outsiders, but rather as an alleged
means of ensuring the safety of the nation and its citizens. This section
argues, first, that Australias approach has not worked at the level of de-

107 As the vessel was interdicted outside of the migration zone as defined in section 5 of the
Migration Act, the detention was purportedly legitimate pursuant to the Maritime Pow-
ers Act 2013 (Cth), s 72.

108 See 157 Tamil Asylum Seekers Sent from Curtin Detention Centre to Nauru, ABC
News (2 August 2014), online: .

109 Bill 2014, Migration and Maritime Powers Legislation Amendment (Resolving the Asy-

lum Legacy Caseload) Bill 2014 (Cth), 2014 [2014 Bill].

110 See ibid, Schedule 2, Part 4.
111 See ibid, Schedule 2, Part 4, ss 31, 36A.
112 See ibid, Schedule 7. An earlier attempt by the government to limit the number of pro-
tection visas was struck down by the High Court in June 2014 (see Plaintiff S297/2013
v Minister for Immigration and Border Protection, [2014] HCA 24 at para 69; Plaintiff
M150 of 2013 v Minister for Immigration and Border Protection, [2014] HCA 25 at para
92 [Plaintiff M150]). In essence, the Court held in each case that section 85 of the Mi-
gration Act does not confer power on the Minister to limit the number of protection vi-
sas granted in a particular year.

113 See 2014 Bill, supra note 109, Schedule 5.
114 See ibid, Schedule 4, Part 1.
115 Catherine Dauvergne, Humanitarianism, Identity, and Nation: Migration Laws of Aus-

tralia and Canada (Vancouver: UBC Press, 2005) at 124.

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terrence and, second, that the flow-on effects of the securitization of Aus-
tralian immigration law are manifestly negative. In a clear warning to
Canada, Catherine Dauvergne stated in evidence given to the Canadian
Standing Committee on Citizenship and Immigrations inquiry into Bill
C-31:

Australia now has more than two decades of experience with a man-
datory detention scheme for people seeking refugee protection. Al-
most everybody seeking refugee protection is detained at some point.
This system has not achieved its deterrence objectives. It has
harmed many people and it has cost thousands of millions of dol-
lars.116

At the outset, it is to be observed that Australian data indicates that a
high proportion of persons in immigration detention have legitimate
claims for protection. 70 per cent of people detained on Nauru and Manus
Island between 2001 and February 2008 were ultimately resettled in Aus-
tralia or other countries.117 Acceptance rates at Christmas Island were
over 90 per cent in the period between July 1, 2009, and January 31,
2010.118 These data suggest that a security-driven response to asylum
seeker flows is somewhat excessive. While Canada does not presently
conduct offshore processing,119 the Australian experience suggests that
Canada ought to seriously reconsider the extent to which it emulates Aus-
tralian practices in respect of asylum seekers.

The UNHCR has stated that [t]here is no empirical evidence that the
threat of being detained deters irregular migration or discourages people
from seeking asylum.120 Drawing on research and government state-
ments from around the world, the International Detention Coalition has
found that asylum seekers generally have little understanding of the
practices of destination states concerning asylum seekers; in any event,

116 House of Commons, Standing Committee on Citizenship and Immigration, Evidence,

41st Parl, 1st Sess, No 40 (7 May 2012) at 1 (Catherine Dauvergne).

117 See Phillips & Spinks, Boat Arrivals in Australia, supra note 16 at 17.
118 See Crock & Ghezelbash, supra note 16 at 244.
119 Persons subject to immigration detention in Canada are housed in immigration holding
centres or provincial prisons. See Canada Border Services Agency, CBSA Detentions
and Removals ProgramsEvaluation Study (November 2010), online: .

120 UNHCR, UNHCR Urges States to Avoid Detaining Asylum-Seekers (12 May 2011),
online: [internal quotation omitted]. In fairness, it
seems likely that there was a link between the extremely low number of boat arrivals in
Australia in the mid-2000s and the harsh Coalition policies during that period. Howev-
er, those policies came with costs to asylum seekers and Australian society that far
outweighed their temporary benefits (see e.g. Crock & Ghezelbash, supra note 16 at
258ff).

THE TREATMENT OF ASYLUM SEEKERS 355

such people are primarily motivated by the desire to escape situations of
intolerable violence, danger, or economic vulnerability, which manifestly
outweigh the perceived drawbacks of detention.121 In the Australian con-
text, it has been argued that the surge in boat arrivals in recent years was
caused by the abandonment of the Pacific Solution in 2008.122 However,
this confuses correlation with causation: existing research suggests that
family, social networks, and agents, including smugglers,123 play a much
more significant role in determining asylum seekers ultimate destina-
tions than knowledge of entry policies and putative detention.124 Indeed,
the cessation of boat arrivals to Australia in early 2014 is beginning to
look like only a temporary decline, seeing as the numbers of asylum seek-
ers in Indonesia are increasing and people smugglers are devising new
means of enticing customers and evading detection by Australian border
patrols.125 To the extent that deterrence can even be considered a legiti-

121 See Robyn Sampson, Grant Mitchell & Lucy Bowring, There are Alternatives: A Hand-
book for Preventing Unnecessary Immigration Detention (Melbourne: International De-
tention Coalition, 2011) at 11, online: .

122 Spinks has observed that

[c]hanges to asylum policy made by the Rudd Government in 2008 … have
been accused of acting as pull factors, as have Australias comparatively gen-
erous welfare arrangements, and relatively high refugee recognition rates.
However, beyond a simple correlation between policy changes and the num-
bers of boat arrivals at certain points in time, little empirical evidence has
been presented to demonstrate that such pull factors are actually at play
(Austl, Commonwealth, Department of Parliamentary Services, Social Policy
Section, Destination Anywhere? Factors Affecting Asylum Seekers Choice of
Destination Country by Harriet Spinks (Canberra: Australian Government
Publishing Service, 2013) at 1).

Richard Towle of UNHCR has argued that

the higher number of people taking dangerous and exploitative sea journeys
is a symptom of the grave human insecurity that refugees face at home and
the risks they are compelled to take to find safety for their families. It is no
coincidence that most boat people come from Afghanistan, Iraq, Iran and Sri
Lankaplaces that are suffering, or have recently emerged, from long peri-
ods of serious human insecurity (Phillips & Spinks, Boat Arrivals in Aus-
tralia, supra note 16 at 3, quoting UNHCR, Media Release, Asylum-
Seekers: Lets Have a Mature Discussion (13 September 2012), online:
).

123 The influence of agents over those seeking their services does not mean that asylum
seekers are aware of the risks involved in travelling to countries such as Australia and
Canada; indeed, the limited available research suggests quite the opposite (see Spinks,
Destination Anywhere?, supra note 122 at 1617).

124 For a useful summary of this research, see generally ibid at 917.
125 See George Roberts, People Smugglers Offering Discounts, Multi-Buys to Combat Fed-
eral Government Asylum Seeker Policies, ABC News (24 March 2014), online:

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mate motivation for immigration detention, it would thus seem to rest on
flawed assumptions regarding its efficacy, since, in Mary Crocks words,
[w]hile there are families striving to be reunited, while there are people
caught in limbo yearning for a safe haven, the refugees will continue to
batter at Australias door.126 There is no reason to think that the threat of
detention is likely to function as a greater deterrent in Canada than in
Australia.

The financial cost of immigration detention is breathtaking. Oxfam
Australia has calculated that Australia spent over AUD$1 billion on off-
shore processing between 2001 and 2007.127 Fewer than seventeen hun-
dred people were processed during this period, meaning that the cost per
person was in excess of AUD$500,000.128 While the purpose of offshore
processing (denial of access to the Australian legal system129 and de-
creased visibility of detainees130) means that economic efficiency is not the
only relevant factor in assessing the offshore processing regime, the scale
of the expense is evident seeing as the cost of onshore detention for the
same period would have amounted to around 3.5 per cent of the cost of
offshore processing.131 In May 2013, the Immigration Department submit-
ted evidence to a Senate estimates hearing that the cost of detention (off-
shore and onshore) for 20122013 would be approximately AUD$1.5 bil-
lion.132 By way of comparison, the funds available to UNHCR operations
in 2013 were USD$3.234 billion, while some 11.7 million people were un-
der the organisations mandate.133
Expenditure of this magnitude by Western nations brings attention to
the fact that internal conflicts, which give rise to flows of asylum seekers,
may be traced to shrinking shares of marginalized peoples in the globali-
zation process and the economic liberalization project of the post-Cold

.

126 Crock, Conflicting Visions, supra note 83 at 94.
127 See Bem et al, supra note 15 at 4.
128 See ibid.
129 See discussion of the Pacific Solution, above at 16.
130 See Bem et al, supra note 15 at 4.
131 See ibid.
132 See Department of Immigration Breaks Down $15 Billion Cost of Asylum Detention
(28 May 2013), online: .

133 See UNHCR, Funding UNHCRs Programmes in Global Report 2013, 106 at 108,
online: ; UNHCR, Global Trends 2013 at 2, online:
.

THE TREATMENT OF ASYLUM SEEKERS 357

War era.134 A fitting, if perverse, end stage of this cycle of economic influ-
ence is the fact that private corporations manage Australias immigration
detention facilities. Since 2009, Serco Group has been contracted to man-
age the detention centre at Christmas Island and other centres through-
out Australia.135 In February 2014, the government awarded a AUD$1.2
billion contract to Transfield Services to operate the centres at Nauru and
Manus Island.136 Yet there is no evidence of a positive correlation between
the spending and improvement of conditions in the centres; to the contra-
rydespite this degree of expenditure, the UNHCRs second report on the
conditions at the Manus Island Regional Processing Centre found that
[p]hysical living conditions remain harsh and freedom of movement
remains extremely limited contrary to UNHCRs Detention Guidelines.137
Given the disproportionate expense and poor standards of treatment re-
ported in offshore Australian facilities, these findings reinforce why Can-
ada would be well advised to avoid both building upon designation and
mandatory detention, and the move to offshore processing.

The destructive impact of detention on those who are detained is man-
ifest.138 A litany of reports attests to the deleterious impact of long-term
detention on asylum seekers. The Australian Human Rights Commission
has drawn attention to the disturbingly high rates of self-harm, suicide,
and generally poor mental health among asylum seekers.139 Suicide Pre-
vention Australia noted in 2011 that there were over 1,100 instances of
threatened or actual self-harm, and at least five suicides by persons in de-
tentionstatistics that are incomparable to any other situation or popu-
lation.140 A 2013 inquiry by the Australian Ombudsman found that be-

134 Chimni, Globalization, supra note 5 at 24546, citing Anne Orford, Locating the In-
ternational: Military and Monetary Interventions after the Cold War (1997) 38:2 Harv
Intl LJ 443 at 444.

135 See e.g. Cathy Alexander, Meet the Companies that Run Our Immigration Detention
Camps, Crikey (25 February 2014), online: .

136 See Paul Farrell, Manus Island and Nauru Centres to be Run by Transfield in $1.2bn
Deal, The Guardian (24 February 2014), online: .

137 UNHCR Monitoring Visit to Manus Island, Papua New Guinea 1113 June 2013 (Ly-

ons, ACT: UNHCR, 2013) at 1, online: .

138 See Mansouri & Leach, supra note 76 at 11011 (temporary protection can also have
significant mental health implications, primarily as a result of the isolation engendered
by the prohibition on family reunification and the omnipotent threat of refoulement).

139 See Australian Human Rights Commission, Submission to the Joint Select Committee,

supra note 19 at paras 8397.

140 Suicide Prevention Australia, Submission to the Joint Select Committee, supra note 19

at 4.

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358

tween July 1, 2010 and April 24, 2013, there were 11 deaths in immigra-
tion detention.141 A 2014 inquiry into children in immigration detention
heard evidence that 128 children had self-harmed in the preceding fifteen
months.142 A recent protest by detainees on Manus Island against the
conditions of detention led to the death of one Iranian asylum seeker; 77
others were injured.143

The impact of detention on asylum seekers supports the argument
that detention amounts to a violation of the right to hospitality at both a
moral and legal level. Morally, detention of non-enemies infringes the ob-
ligation to accord hospitality, even if persons are seeking permanent
membership in a community rather than temporary sojourn. Legally, de-
tention

on a mandatory and indefinite basis without an assessment as to the
necessity and proportionality of the purpose of such detention in the
individual case, and without being brought promptly before a judi-
cial or other independent authority amounts to arbitrary detention
that is inconsistent with international human rights law.144

In 2013, the UN Human Rights Committee in FKAG v. Australia145 found
that Australias indefinite detention of persons subject to adverse security
assessments breached articles 7 and 9(1), (2) and (4) of the ICCPR.146 The

141 See Austl, Commonwealth, Commonwealth and Immigration Ombudsman, Suicide and
Self-harm in the Immigration Detention Network (Report No 2) by Ombudsman Colin
Neave (Canberra: Commonwealth Ombudsman, 2013) at 2, online: . The Ombudsman noted that these figures are based
on departmental reports and expressed concern over both the reporting framework and
the departmental structures for identifying and recording self-harming behaviour (see
ibid at 3).

142 See Rebecca Barrett & Karen Barlow, Immigration Detention Inquiry: Government
Tried to Cover Up Asylum Seekers’ Mental Health Problems, Inquiry Told, ABC News
(31 July 2014), online: . See also Australian Medical Associa-
tion, supra note 19 ([c]hildren are particularly vulnerable and the detention environ-
ment places enormous stress on them).

143 See Helen Davidson & Oliver Laughland, Manus Island: One Dead, 77 Injured and
Person Shot in Buttock at Australian Asylum Centre, The Guardian (18 February
2014),
online: .

144 UNHCR, Manus Island, supra note 137 at 1.
145 UNICCPR, Human Rights Committee, 108th Sess, UN Doc CCPR/C/108/D/2094/2011,

28 October 2013 at 1723.

146 In particular, the Committee found that a blanket rule imposing detention without in-
dividual assessment was arbitrary within the meaning of article 9(1). It also found that
substantive review of detention was unlikely in light of Al-Kateb, supra note 70, and
that, in any event, Plaintiff M47/2012 v Director-General of Security, [2012] HCA 46 (5
October 2012) clarifies that a successful challenge to the making of an adverse security

THE TREATMENT OF ASYLUM SEEKERS 359

fact that the DFN regime enables potentially indefinite detention sug-
gests that Canada may very well be the subject of similar international
criticism in the future.
Australias culture and politics have also suffered from its inhospitali-
ty toward asylum seekers. Despite the nations racist history, sovereignty
has renewed its claim on the social consciousness in the form of xenopho-
bia and callousness. Over the past twenty-five years, politicians have lev-
eraged the asylum seeker issue for political gain,147 and refugees have be-
come the means by which politicians pander to unease over perceptions of
a rapidly changing nation.148 The secrecy that is inherent in the logic of
securitization has resulted in attempts by government departments to
conceal the various impacts of detention on detainees.149 To maintain the
position that its inhospitable policies are achieving their deterrence objec-
tive, the government has resorted to claiming that the aforementioned Sri
Lankan asylum seekers who were kept on a customs vessel for some three
weeks are in fact economic migrants liable to being returned to India.150

assessment does not necessarily bring detention to an end; accordingly, article 9(4) was
infringed. The cumulative impact of the arbitrary character of the authors detention,
its protracted and/or indefinite duration, the refusal to provide information and proce-
dural rights to the authors and the difficult conditions of detention are cumulatively in-
flicting serious psychological harm upon them, and constitute treatment contrary to ar-
ticle 7 of the Covenant. Human Rights Committee, Communication No 2094/2011
(FKAG v Australia), UNCCPR, 108th Sess, UN Doc CCPR/C/108/D/2094/2011 (2013) at
para 9.8.

147 For example, in the wake of the Tampa incident, the Prime Minister declared, we will
decide who comes to this country and the circumstances in which they come (Australi-
an Liberal-National Coalition, supra note 96 at 4). Subsequently, approval ratings for
the Coalition Government jumped to their highest levels since entering office (see
Devetak, supra note 48 at 107).

148 See e.g. Christos Tsiolkas, Why Australia Hates Asylum Seekers, The Monthly (Sep-
tember 2013), online: .

149 See Barrett & Barlow, supra note 142.
150 See Karen Barlow, Scott Morrison Says 157 Tamil Asylum Seekers are Economic Mi-
grants Not in Danger of Persecution in India, Calls Labor and Greens Surrender Mon-
keys, ABC News (28 July 2014), online: . Pre-empting a High Court
challenge to the asylum seekers continuing detention on the Australian vessel, the
Minister announced in late July 2014 that they would be brought to Australia. While
that transfer took place, the asylum seekers have since been transferred from Curtin
Detention Centre to Nauru (see 157 Tamil Asylum Seekers Sent from Curtin Deten-
tion Centre to Nauru, ABC News (2 August 2014), online: ). The plaintiffs have amend-
ed their claim in the High Court to state a case for damages for unlawful detention and
false imprisonment (see CPCF v Minister for Immigration and Border Protection, [2014]
HCATrans 156 (28 July 2014)).

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360

While it may be true that not all of the Sri Lankans meet the criteria for
protection, the governments position is an example of a broader trend to-
ward involuntary repatriation by states that are unwilling to actualize
the principle of burden sharing.151 The rhetoric surrounding the introduc-
tion of Bill C-31 suggests that Canada is at risk of following a similar
path.152 Recent Australian history would indicate that Canada ought to
eschew a politics that rests on the construction of asylum seekers as
scapegoats in order to confront deeper concerns over national identity and
economic inequality.

The point of drawing attention to the negative outcomes of immigra-
tion detention is not to suggest that borders do not matter, or that sover-
eignty is unimportantthe right of hospitality presupposes both the ex-
istence of boundaries and a commitment to sovereignty. Furthermore, in
the context of boat arrivals, it must be acknowledged that most boats used
by asylum seekers are not equipped for the type of journey being made,
and as a consequence, people die. The SIEV X incident in late 2001, in
which 353 asylum seekers drowned on their way to Australia, exemplifies
this reality.153 Thus, as Crock and Ghezelbash have pointed out, stopping
irregular migration by boat is a laudable policy objective.154 What is not
acceptable is a system that treats asylum seekers who do arrive by boat
as enemies, by subjecting them to punishment and contraventions of in-
ternational law. The shift in Australia toward securitizing migration, par-
ticularly forced migration, amounts to an inhospitable attempt to avoid
addressing the needs of people who, in the eyes of proponents of such poli-
cies, have the temerity to seek protection at the doorstep without calling
first to seek permission. This approach has had a demonstrably destruc-
tive effect not only on detainees, but also on the nation as a whole. In view
of the recent enactment of Bill C-31 and the DFN regime, Canada ought
to consider closely the lessons offered by the Australian regime when for-
mulating future laws and policies concerning asylum seekers.

151 Chimni, From Resettlement to Involuntary Repatriation, supra note 18 at 66.
152 For example, in his second reading speech concerning Bill C-31, former Immigration
Minister Jason Kenney averred, Canadians are worried when they see large human
smuggling operations, for example, the two large ships that arrived on Canada’s west
coast in the past two years with hundreds of passengers, illegal migrants who paid
criminal networks to be brought to Canada in an illegal and very dangerous manner
(Kenney, supra note 12 at 5872).

153 See e.g. Questions Still Abound Ten Years After the Sinking of SIEV X, interview of
Steve Biddulph by Geraldine Doogue (22 October 2011) on Saturday Extra, ABC Radio
National, online: .

154 Supra note 16 at 245.

II. The DFN Regime: Protecting Canadas Immigration System?

THE TREATMENT OF ASYLUM SEEKERS 361

A. A Mixed Legacy

Canada has never formally enacted an equivalent to the White Aus-
tralia policy. However, at various points in its history it has evinced an
equivalent attitude of antipathy toward non-white immigrants and asy-
lum seekers.155 The relevance of ethnicity to Canadian immigration policy
in the nineteenth and early twentieth centuries is apparent in the
longstanding Chinese head tax,156 which continued in force until 1923
when it was replaced by legislation that blocked virtually all Chinese im-
migration until 1947.157 The nervousness engendered by boat arrivals and
refugees is evident in the passage of the Immigration Act 1910,158 which
conferred power on the federal government to prohibit the landing of im-
migrants belonging to any race deemed unsuited to the climate or re-
quirements of Canada,159 as well as the infamous Komagata Maru and
St. Louis incidents.160 To be sure, Canada admitted hundreds of thou-
sands of displaced Europeans in the wake of World War II, but the right
to discriminate on the basis of race was upheld.161 Furthermore, those who
were admitted tended to accord with the prevailing Anglo-American con-

155 See generally Valerie Knowles, Strangers at Our Gates: Canadian Immigration and
Immigration Policy, 15401997, revised ed (Toronto: Dundurn Press, 1997). The first
federal law dealing with immigration was passed in 1869 (see The Immigration Act,
1869, SC 1869, c 10 (see Knowles, supra note 155 at 4950)). That Act was consolidated
and the categories of undesirable immigrants extended by The Immigration Act, 1906,
SC 1906, c 19 (see Knowles, supra note 155 at 8283).

156 See The Chinese Immigration Act, 1885, SC 1885, c 71; The Chinese Immigration Act,
1903, SC 1903, c 8. For an overview of the response to Chinese migration in Canada in
this period, and the litigation brought by descendants of those subjected to the head tax
(Mack v Canada (Attorney General) (2001), 55 OR (3d) 113, 2001 CanLII 27983 (Ont
SC) and Mack v Canada (Attorney General) (2002), 217 DLR (4th) 583, 60 OR (3d) 737
(Ont CA)), see generally David Dyzenhaus & Mayo Moran, eds, Calling Power to Ac-
count: Law, Reparations, and the Chinese Head Tax Case (Toronto: University of Toron-
to Press, 2005).

157 The Chinese Immigration Act, 1923, SC 1923, c 38.
158 An Act Respecting Immigration, SC 1910, c 27 [Immigration Act 1910].
159 Ibid, s 38.
160 The Komagata Maru arrived in Vancouver in 1914 carrying 376 mostly Sikh passen-
gers. The ship was forced to return to India. In 1939, the St. Louis, which was carrying
over 900 Jewish refugees, was denied permission to land in Halifax and the ship was
forced to return to Europe. See Neve & Russell, supra note 1 at 3839. See also
Knowles, supra note 155 at 93 (the Komagata Maru incident) and 117 (the St. Louis in-
cident).

161 See Knowles, supra note 155 at 13132.

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362

ception of the Canadian nation,162 and did not affect the underlying eco-
nomic determinants of Canadian immigration policy.163

Like Australia, Canadas attitude toward refugees shifted in the
1970s.164 In 1976, Canada enacted a new Immigration Act165 that express-
ly recognized its obligations under the Refugee Convention, which it had
ratified in 1969.166 Between 1975 and 1981, Canada demonstrated an atti-
tude of cosmopolitan hospitality by admitting some 77,000 refugees from
Southeast Asia, along with several thousand refugees from Uganda and
Chile; many of those admitted were privately sponsored by Canadian citi-
zens.167 Canadas generosity during this period, when it accepted more
refugees per capita than any other nation, led to its receipt of the Nansen
Medalawarded to a country for the first time in history.168
By the late 1980s, however, Canadian hospitality was threatened by a
global upsurge in the number of refugees and undocumented migrants.169
The arrival of Sikh asylum seekers by boat in Nova Scotia in 1987 ap-
peared to confirm the fear that Canada was in imminent danger of being
overwhelmed by non-genuine refugee claimants.170 In conjunction with
administrative difficulties created by the Supreme Courts ruling in Singh
v Minister of Employment and Immigration,171 it can be argued that the
arrival of the Sikhs influenced the passage of Bill C-84, the Refugee Deter-

162 See ibid at 13134.
163 James C Hathaway, Selective Concern: An Overview of Refugee Law in Canada

(1988) 33:4 McGill LJ 676 at 682.

164 See Knowles, supra note 155 at 161ff.
165 The Immigration Act, SC 1976, c 24 [Immigration Act 1976].
166 The Immigration Act 1976 did empower authorities to detain aliens with respect to
whom an examination or inquiry was to be held, or a removal order had been made,
where the person was considered a public danger or posed a flight risk (see ibid, s
104(1)). Review of detention was required within forty-eight hours and further review
was required every seven days (see ibid, s 104(6)).

167 See Knowles, supra note 155 at 17275. See also Hathaway, Refugee Law in Canada,

supra note 163 at 68384.

168 See Knowles, supra note 155 at 181; Neve & Russell, supra note 1 at 39.
169 For an overview of developments in the 1980s, see generally Howard Adelman, Cana-
dian Refugee Policy in the Postwar Period: An Analysis in Howard Adelman, ed, Refu-
gee Policy: Canada and the United States (Toronto & New York: York Lanes Press &
Centre for Migration Studies, 1991) 172 at 20410.

170 Hathaway, Refugee Law in Canada, supra note 163 at 686, n 37.
171 Singh v Minister of Employment and Immigration, [1985] 1 SCR 177, 17 DLR (4th) 422

[Singh].

THE TREATMENT OF ASYLUM SEEKERS 363

rents and Detention Act.172 This Act extended powers of detention,173 lim-
ited access to the determination system, and established a new system of
refugee determination utilizing adversarial hearings, the outcomes of
which were non-appealable.174

The arrival of 599 Chinese nationals off the coast of British Columbia
in 1999 triggered another round of discussions concerning asylum seek-
ers. A report issued by the House of Commons Standing Committee on
Citizenship and Immigration framed the issue as one requiring a balance
between refugee protection and border security.175 However, the stated se-
curity concerns were not centrally about terrorists or persons who pose
major security threats, but rather dealt with the economic impacts of
people working illegally, of opportunistically drawing on the public purse,
or of feathering the pockets of smugglers.176 This assessment of the situa-
tion was not entirely unreasonable given that the majority of the boat ar-
rivals were economic migrants.177 The Committee viewed detention as a
necessary component of Canadas immigration system, and its recom-
mendations largely accorded with the prevailing detention provisions in
the Immigration Act 1976.178 Thus, when the IRPA first came into effect,
detention remained discretionary and individualized, and regular reviews

172 Bill C-84, An Act to amend the Immigration Act, 1976 and the Criminal Code in conse-
quence thereof, 2nd Sess, 33rd Parl, 1987 (first reading 11 August 1987) [Refugee Deter-
rents and Detention Act].

173 The new provision enabled authorities to detain a person who was unable to satisfy an
officer as to that persons identity (see Arthur C Helton, The Detention of Asylum-
Seekers in the United States and Canada in Howard Adelman, ed, Refugee Policy:
Canada and the United States (Toronto & New York: York Lanes Press & Centre for
Migration Studies, 1991) 253 at 261). Helton further notes that the objective of this
amendment was to deter undocumented persons from attempting to enter the country
(see ibid).

174 See Hathaway, Refugee Law in Canada, supra note 163 at 686. See also Wendy Chan,
Undocumented Migrants and Bill C-31: The Criminalization of Race in Law Commis-
sion of Canada, ed, What Is a Crime? Defining Criminal Conduct in Contemporary Soci-
ety (Vancouver: UBC Press, 2004) 34 at 3536.

175 See House of Commons, Standing Committee on Citizenship and Immigration, Refugee

Protection and Border Security: Striking a Balance (22 March 2000).

176 Constance MacIntosh, Insecure Refugees: The Narrowing of Asylum-Seeker Rights to
Freedom of Movement and Claims Determination Post 9/11 in Canada (2012) 16:2 Rev
Const Stud 181 at 18687.

177 See Alexandra Charlton et al, The Challenges to Responding to Human Smuggling in
Canada: Practitioners Reflect on the 1999 Boat Arrivals in British Columbia (2002)
Vancouver Centre of Excellence, Research on Immigration and Integration in the Me-
tropolis Working Paper No 02-23 at 2425, online: .

178 See MacIntosh, supra note 176 at 188.

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364

were required;179 the number of persons in immigration detention did,
however, increase sharply in the years following the introduction of
IRPA.180
Viewed in the context of Canadas historical nervousness over unau-
thorized boat arrivals, it is not especially surprising that the arrival of 575
Sri Lankan nationals in 2010 triggered public anxiety and a securitizing
response on the part of the Canadian government. What is surprising is
the extent to which Bill C-31and particularly the DFN provisions
depart from principles of hospitality and international law, as well as the
Charter.

B. The DFN Regime
The progenitor of Bill C-31Bill C-49181was introduced in Parlia-

ment on October 21, 2010. That Bill lapsed with the dissolution of the
40th Parliament.182 On June 16, 2011, a new bill, Bill C-4, was intro-
duced.183 In a manner reminiscent of the Australian legislation introduc-
ing the concept of designated persons and mandatory detention in the
1990s, Bill C-4 was hastily drafted by the government when Canadians
witnessed the spectre of two boats coming to the shores of British Colum-
bia carrying some of the most damaged and wounded people on earth.184
Putatively entitled the Preventing Human Smugglers from Abusing Can-
adas Immigration System Act, the Bill in fact targeted those who turn to
smugglers for assistance.185 In 2012, the substantive provisions of Bill C-

179 IRPA, supra note 3, ss 55(3), 57(1)(2). These provisions remain in effect for non-
citizens who are not classed as DFNs. It is to be observed that s 55(2) in the IRPA did
remove a temporal restriction on the power to detain on the basis of identity concerns
by making the power exercisable at any time.

180 See Franois Crpeau, Delphine Nakache & Idil Atak, International Migration: Securi-
ty Concerns and Human Rights Standards (2007) 44:3 Transcultural Psychiatry 311 at
321.

181 Bill C-49, Preventing Human Smugglers from Abusing Canadas Immigration System

Act, 3rd Sess, 40th Parl, 2010.

182 See House of Commons, Order Paper, 40th Leg, 3rd Sess, No 149A (26 March 2011).
See also Julie Bchard, House of Commons, Social Affairs Division, Legislative Sum-
mary of Bill C-4 (August 2011).

183 Bill C-4, Preventing Human Smugglers from Abusing Canadas Immigration System
Act, 1st Sess, 41st Parl, 2011. See House of Commons Debates, 41st Parl, 1st Sess, No
12 (21 June 2011) at 595 (Hon Vic Toews (Minister of Public Safety)).

184 House of Commons Debates, 41st Parl, 1st Sess, No 90 (6 March 2012) at 5876 (Don Da-

vies).

185 Neve & Russell, supra note 1 at 42. See also Canadian Bar Association, Bill C-49, Pre-
venting Human Smugglers from Abusing Canadas Immigration System Act (Ottawa:
Canadian Bar Association, 2010) at 1, online: . The disingenuousness of the title is made particularly clear when it is recalled
that section 117(1) of IRPA, before it was amended by Bill C-31, already made it an of-
fence to organize, induce, aid or abet the coming into Canada of one or more persons
who are not in possession of a visa, passport or other document required by this Act.
Section 41 of Bill C-31 amended this provision to include recklessness as an alternative
mens rea element.

186 Inserted by section 10 of Bill C-31. The exception in the IRPA concerning foreign na-
tionals referred to in section 19 means that permanent residents are not subject to des-
ignation (see IRPA, supra note 3, s 20.1(2)).

187 Section 117(1) of the IRPA as amended by Bill C-31 provides: No person shall organize,
induce, aid or abet the coming into Canada of one or more persons knowing that, or be-
ing reckless as to whether, their coming into Canada is or would be in contravention of
this Act.

188 IRPA, supra note 3, s 20.1(1).
189 Ibid, s 20.1(1)(b).
190 See e.g. articles 2 and 26 of the ICCPR and possibly article 3 of the Refugee Convention.
See also UNHCR, UNHCR Submission on Bill C-31, Legislative Comment on Protect-
ing Canadas Immigration System Act (2012) at para 8. The designation of persons
based on their possible connection to people smuggling operations also potentially in-
fringes article 16 of the Protocol Against the Smuggling of Migrants by Land, Sea and
Air, Supplementing the United Nations Convention Against Transnational Organized
Crime, 15 November 2000, 2241 UNTS 507 (entered into force 28 January 2004) [Con-
vention Against Smuggling].

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tion.191 From this perspective, inhospitable treatment of asylum seekers is
framed as muscular state policy designed to protect the nation from ex-
ternal threats.

In a manner reminiscent of Australias temporally specific definition of
designated person in the 1992 Act, Bill C-31s transitional provisions en-
able the Minister to designate persons who arrived after March 31, 2009,
which is prior to the arrival of the Sri Lankans.192 The regime applies to
adults and persons who are over the age of sixteen on the date of arrival
that is the subject of designation.193 The detention of children194 under the
DFN regime would seem to contravene the Convention on the Rights of
the Child, which requires that the best interests of the child be a primary
consideration in all state action concerning children,195 and moreover,
stipulates that detention of children should be a measure of last resort
and for the shortest appropriate period of time.196 This latter principle is
incorporated in section 60 of the IRPA, suggesting that there is also a con-
flict within the terms of the Act.
Once a person is designated, they must be detained until: (a) a final
determination is made to allow their claim for refugee protection or appli-
cation for protection; (b) they are released by the Immigration Division
under section 58; or (c) they are released as a result of a Ministerial order
under section 58.1.197 The mandatory nature of detention upon designa-
tion is a significant departure from the discretionary detention powers
that operate in respect of non-DFNs. Section 55(3) of the IRPA provides
that a foreign national may, on entry into Canada, be detained198 if it is
necessary for the completion of an examination or because of suspected
inadmissibility. While Bill C-31s introduction of mandatory detention
echoes the reforms initiated by the 1992 Act in Australia, it is important
to recall that detention in Canada is only mandatory upon designation;
that is, it remains somewhat more particularized than the approach taken

191 See Chimni, Globalization, supra note 5; Dauvergne, Less Brave New World, supra

note 5; Rygiel, supra note 8; MacIntosh, supra note 176.

192 Bill C-31, supra note 2, cl 81(1).
193 See IRPA, supra note 3, s 55(3.1).
194 Under international law, a child is any person under the age of eighteen years (see
Convention on the Rights of the Child, 20 November 1989, 1577 UNTS 3, art 1 (entered
into force 2 September 1990)). Under Canadian law, a minor is anyone under the age of
eighteen or nineteen (depending on the province in question).

195 See ibid, art 3(1).
196 Ibid, art 37(b).
197 See IRPA, supra note 3, s 56(2)(a)(c).
198 [Emphasis added].

THE TREATMENT OF ASYLUM SEEKERS 367

in Australia whereby all unauthorized boat arrivals are subject to manda-
tory detention.

ignation. By section 58(1.1),

Initial review of a DFNs case must occur within fourteen days of des-

on the conclusion of a review under subsection 57.1(1), the Immigra-
tion Division shall order the continued detention of the designated
foreign national if it is satisfied that any of the grounds described in
paragraphs (1)(a) to (c) and (e) exist, and it may not consider any
other factors.199

If release is ordered, the Immigration Division may impose any prescribed
condition on the DFN.200 If release is not ordered, further review must not
occur for six months from the date of the previous review.201
The IRPA does not impose a ceiling on the period for which a DFN

may ultimately be detained. In theory, if the Immigration Division is sat-
isfied at each review that the person falls within one of the specified cate-
gories in section 58(1), detention may be indefinite. In this respect, the
amendments are similar in effect to the 1994 changes to Australias im-
migration system, in which detention of asylum seekers became potential-

199 See ibid, s 58(1). Those grounds encompass satisfaction on the part of the Immigration

Division that:

(a) they are a danger to the public;
(b) they are unlikely to appear for examination, an admissibility hearing,
removal from Canada, or at a proceeding that could lead to the making of
a removal order by the Minister under subsection 44(2);

(c) the Minister is taking necessary steps to inquire into a reasonable suspi-
cion that they are inadmissible on grounds of security, violating human
or international rights, serious criminality, criminality or organized crim-
inality;


(e) the Minister is of the opinion that the identity of the foreign national who
is a designated foreign national and who was 16 years of age or older on
the day of the arrival that is the subject of the designation in question
has not been established.

200 See ibid, s 58(4).
201 See ibid, s 57.1(2). Further review was originally precluded for twelve months, but the
government followed a recommendation by the House Standing Committee on Citizen-
ship and Immigration that this be reduced to six months (see House of Commons,
Standing Committee on Citizenship and Immigration, Third Report (May 2012) (Chair:
David Tilson)). In contrast, section 57 provides that initial review of permanent resi-
dents and non-DFN foreign nations is to take place within forty-eight hours, then at
least once more in the following seven days, and at least once more in every thirty-day
period thereafter.

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ly indefinite.202 The Immigration and Refugee Protection Regulations ar-
ticulate a list of factors to be considered in determining whether a person
is to be released from detention.203 However, as the Immigration Review
Boards Guidelines make clear,

[i]f detention under the IRPA has been lengthy and there are still
certain steps that must be taken in the immigration context, if valid
reasons still remain to order continued detention, such as flight risk
or danger to the public, an order for continued detention does not
constitute indefinite detention.204

In this context, it is to be recalled that in A v. Australia, the Human
Rights Committee determined that prolonged administrative detention is
a breach of article 9 of the ICCPR.205 Similarly, the Supreme Court in
Charkaoui v. Canada (Citizenship and Immigration) held that prolonged
detention without meaningful review could constitute cruel and unusual
punishment contrary to section 12 of the Charter.206 As noted above, long-
term detention of asylum seekers may also be viewed as a contravention
of the right to hospitality.
DFNs are also subject to a suite of detrimental consequences in addi-
tion to detention. By section 20.2(1) of the IRPA, a DFN may not apply for
permanent residence for five years from the date of designation;207 where
a claim or application for protection has been made, permanent residence
cannot be granted until five years from the date on which a final determi-
nation is made in respect of the claim or application, as applicable.208 This
means that even persons who are granted refugee protection are unable to
apply for permanent residence until five years from the date of that de-
termination. The five-year bar also applies to applications for permanent
residency on humanitarian grounds.209 The inability to regularize ones

202 See Al-Kateb, supra note 70.
203 SOR/2002-227, s 248.
204 Immigration and Refugee Board of Canada, Guideline 2: Guideline on Detention,
Guidelines Issued by the Chairperson, Pursuant to Paragraph 159(1)(h) of the Immi-
gration and Refugee Protection Act (Ottawa: Immigration and Refugee Board of Cana-
da, 5 June 2013) at para 3.4.1.

205 Arguably, detention of smuggled migrants also contravenes art 16 of the Protocol

Against Smuggling (see UNHCR Submission on Bill C-31, supra note 190 at para 6).

206 See 2007 SCC 9 at para 107, [2007] 1 SCR 350 [Charkaoui].
207 For reasons that have not been publicly explained, this provision appears to replicate s

11(1.1).

208 Similarly, if a foreign national who has lodged an application for permanent residence
is subsequently designated a DFN, their application is suspended for five years (see
IRPA, supra note 3, s 20.1(2)). Section 24(5) operates in the same way in respect of tem-
porary resident permits.

209 See IRPA, supra note 3, s 25(1.01).

THE TREATMENT OF ASYLUM SEEKERS 369

status means that DFNs are prevented from sponsoring their family
members to join them for five years from the date of designation.210 This is
compounded by the inability of DFNs to obtain travel documents. Section
31.1 provides that a DFN is not lawfully staying in Canada for the pur-
poses of article 28 of the Refugee Convention. The cumulative effect of
these provisions is that persons deemed to be DFNs are cut off from their
families for up to seven years, and possibly even longer, given that impe-
cuniousness could preclude immediate travel. The UNHCR has observed
that this outcome does not accord proper respect to the principle of family
unity under international law.211 The Canadian Bar Association has ar-
gued that [d]enying family reunification by denial of access to [perma-
nent resident] status is inconsistent with Article 23 of the [ICCPR].212 In
view of these consequences, it seems reasonable to argue that the DFN
regime, in whole or in part, is punitive. A punitive regime contravenes ar-
ticle 31(1) of the Refugee Convention and demonstrates a deliberately in-
hospitable stance toward those persons for whom an absence of protection
and even minimal rights may be destructive.

Fair procedure is significantly compromised as the scope for appeals
by DFNs is extremely limited. The IRPA does not provide a mechanism
for appeals against designation, while rights of appeal in respect of a de-
cision of the Refugee Protection Division allowing or rejecting the claim
for refugee protection of a [DFN] are also precluded.213 The UNHCR has
observed that the removal of merits reviews of first instance decisions
risks contravention of the non-refoulement principle in the Refugee Con-
vention.214 In combination with mandatory detention, this policy also
breaches article 9 of the ICCPR.215

In December 2012, pursuant to section 20.1(1)(b) of the IRPA, the
Minister of Public Safety designated 85 Romanians216 who arrived in
Quebec after having crossed the Canada-US border in five groups be-

210 See ibid, ss 13(1) (enabling permanent residents to sponsor a foreign national),
20.2(1)(a)(c) (preventing designated foreign nationals from applying to become perma-
nent residents for five years; see supra notes 186-190 and accompanying text).

211 See UNHCR Submission on Bill C-31, supra note 190 at para 25.
212 Canadian Bar Association, supra note 185 at 9.
213 See IRPA, supra note 3, s 110(2)(a).
214 See UNHCR Submission on Bill C-31, supra note 190 at para 45.
215 See ibid at para 11.
216 See Daniel LeBlanc, Ottawa Gets Tough with Romanian Asylum Seekers, The Globe
and Mail (5 December 2012), online: .

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tween February and October 2012.217 Given that none of the eighty-five
DFNs were ever proven to be the smugglers who facilitated the Romani-
ans entry, it is doubtful that the designation succeeds in sending the
strong message that the government of Canada will take decisive action
against those who earn their livelihood by criminally exploiting Canadas
immigration system.218 Instead, the designation demonstrates the actual-
ization of the securitizing logic that undergirds Bill C-31 and distances
Canada from the politics of hospitality.

C. The DFN Provisions Contravene the Charter

Perhaps the strongest indication of the extent to which an ideology of
control has taken root in Canadian immigration policy is the multiple
ways in which the DFN provisions infringe the Charter. As a threshold
matter, the Charter is not confined to Canadian citizens or residents.
Singh and Charkaoui make it clear that at the very least, rights granted
by sections 7, 9, 10, and 12219 of the Charter may be asserted by everyone
who is physically present in Canada.220 This being said, Toussaint v. Can-
ada (AG) indicates that there are limits to the ability of non-citizens with-
in Canada to invoke the protection of the Charter.221 Furthermore, in a re-
cent study of Charter cases involving non-citizens, Catherine Dauvergne
concluded that the Charter has failed to deliver on its promise of human
rights protections for non-citizens.222

217 See Public Safety Canada, News Release, Minister of Public Safety Makes First Desig-
nation of Irregular Arrival Under Protecting Canadas Immigration System Act (5 De-
cember 2012), online: .

218 Ibid.
219 Charkaoui also dealt with a claim under s 15 of the Charter. However, the Court reject-
ed the application of section 15 to non-citizens based on section 6 (see Charkaoui, supra
note 206 at para 129). The Court said that while the applicants detentions had been
lengthy, it was not divorced from the purpose of deportation (see ibid at para 131).
Thus, while the possibility of a section 15 challenge remains if it can be shown that the
consequences of a contravention of immigration law bears no relation to deportation, it
is not a particularly fruitful line of argument and accordingly is not dealt with any fur-
ther in this paper.

220 See Singh, supra note 171 at 202.
221 2010 FC 810, [2011] 4 FCR 367, affd 2011 FCA 213, [2013] 1 FCR 374, leave to appeal
to SCC refused, 34446 (5 April 2012). The Federal Court rejected the applicants claim
that denying her health coverage infringed section 7 of the Charter because she had
chosen to remain in Canada illegally (see ibid at para 94).

222 How the Charter Has Failed Non-citizens in Canada: Reviewing Thirty Years of Su-

preme Court of Canada Jurisprudence (2013) 58:3 McGill LJ 663 at 666.

1. Detention and Imprisonment

THE TREATMENT OF ASYLUM SEEKERS 371

The designation and detention provisions, in whole or in part, likely

breach sections 9 and 10(c) of the Charter. Of course, in Charkaoui, the
Court unanimously held that detention of foreign nationals against whom
security certificates had been issued did not per se infringe section 9 be-
cause there was a rational connection between the issuing of the certifi-
cate and the objective of national security.223 This invites greater scrutiny
as to the objectives of the DFN regime. Section 20.1 of the IRPA indicates
that the regimes objectives are to determine the identity and potential se-
curity risks of irregular arrivals; textually, therefore, the objectives of the
regime are not intrinsically irrational or arbitrary. It follows that the des-
ignation and initial detention for fourteen days under the DFN regime
may not necessarily infringe sections 9 and 10(c) of the Charter, because
such measures are, arguably, either necessary to realize the legislative ob-
jectives, or bear a rational relationship to those objectives.224 Crucially,
though, the consequences of designation strongly suggest a deterrence ob-
jective. Section 3(2) of the IRPA indicates that deterrence is not a valid ob-
jective within the terms of the Act.225 Such an objective in conjunction
with the absence of judicial oversight of designation, and the fourteen-day
initial detention period without review, may render the detention arbi-
trary, and hence in contravention of sections 9 and 10(c). As the Court in
Charkaoui observed, the provisions in the IRPA that provide for review of
detention of permanent residents named in security certificates within
forty-eight hours, and of foreign nationals outside of the security certifi-
cate context within twenty-four hours, indicate the seriousness with
which the deprivation of liberty is viewed, and offer guidance as to ac-
ceptable delays before this deprivation is reviewed.226 In any event, the
subsequent detention of DFNs for a minimum of six months is much more
likely to be considered arbitrary. The Court in Charkaoui held that the
lack of review of detention of foreign nationals for 120 days following judi-
cial determination227 of the reasonableness of the certificate infringed both

223 See Charkaoui, supra note 206 at paras 8889.
224 See Canada (AG) v PHS Community Services Society, 2011 SCC 44 at para 132, [2011]
3 SCR 134 [PHS], citing Chaoulli v Quebec (AG), 2005 SCC 34 at paras 13132, 232,
[2005] 1 SCR 791 [Chaoulli].

225 It is conceivable that a deterrence objective grounded in concern over loss of life occa-
sioned by the mode of irregular arrival (for example, dangerous vessels) might be valid;
however, the attendant consequences of designation would still be arbitrary and dis-
proportionate.

226 Charkaoui, supra note 206 at para 91.
227 See ibid at paras 61, 65 (albeit pursuant to a flawed process that infringed section 7 of

the Charter).

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sections 9 and 10(c) of the Charter.228 By parity of reasoning, it is difficult
to see how detention for six months following an administrative determi-
nation is necessary, or in furtherance of the legislative objective, which in
turn suggests that such detention is arbitrary and in contravention of sec-
tions 9 and 10(c). This being said, it is arguable that the time involved in
processing significant numbers of asylum seekers justifies the lengthy de-
tention period.

2. Fundamental Justice

It is likely that the absence of judicial review of mandatory detention
of DFNs breaches section 7 of the Charter because loss of liberty is im-
posed in an arbitrary manner contrary to fundamental justice;229 in par-
ticular, the principle that persons must be able to challenge ongoing de-
tention or the conditions of release. In the migration context, Charkaoui
makes clear that a challenge to the fairness of the process leading to pos-
sible deportation and the loss of liberty associated with detention raise[s]
important issues of liberty and security and, accordingly, engages the de-
tainees section 7 Charter rights.230 The Court in that case held that judi-
cial oversight of the process did not meet the requirements of section 7 be-
cause the secrecy required by the scheme denie[d] the named person the
opportunity to know the case against them, thereby failing to afford the
fair hearing that is required before depriving a person of life, liberty, or
security.231 In contrast, the DFN scheme does not provide for even mini-
mal judicial scrutiny of the Ministers determination that a foreign na-
tional is a DFN. While the argument that immigration detention is not
arbitrary per se might support a finding that the initial fourteen-day peri-
od of detention is valid, it is unlikely that ongoing detention without judi-
cial scrutiny could pass constitutional muster. According to McLachlin CJ
in Charkaoui:

[W]here a person is detained or is subject to onerous conditions of re-
lease for an extended period under immigration law, the detention
or the conditions must be accompanied by a meaningful process of
ongoing review that takes into account the context and circumstanc-
es of the individual case. Such persons must have meaningful oppor-

228 See ibid at para 91.
229 See Chaoulli, supra note 224 at paras 12853.
230 Charkaoui, supra note 206 at para 18. The Court clarified that while deportation of a
non-citizen does not in itself constitute a breach of section 7 of the Charter, the manner
in which a decision to deport a non-citizen is reached may implicate that section (ibid at
paras 1617; Accord Medovarski v Canada (Minister of Citizenship and Immigration),
2005 SCC 51 at para 46, [2005] 2 SCR 539).

231 Charkaoui, supra note 206 at para 65.

THE TREATMENT OF ASYLUM SEEKERS 373

tunities to challenge their continued detention or the conditions of
their release.232

For similar reasons, the detention provisions for DFNs may infringe
section 7 by reason of overbreadth.233 The decision in R v. Heywood234
makes clear that the doctrine of overbreadth looks to the purpose underly-
ing a law, and considers whether the means are sufficiently tailored to
meet that objective. Specifically, Heywood suggests that the question of
breadth is likely to turn on the period of time deemed necessary to achieve
the legislative object.235 The government has made it clear that detention
of smuggled migrants is intended to enable identification and assessment
of security risks.236 Fourteen days detention is arguably not excessive
(and therefore not overbroad) for this purpose; on the other hand, six
months detention may well be sufficiently disproportionatethat is, be-
yond what is necessary to achieve the legislative objectto warrant judi-
cial intervention.

The DFN provisions may also constitute an infringement of the right
to security of the person guaranteed by section 7 of the Charter because of
their likely or demonstrated deleterious impact on the psychological well-
being of designated persons. It is an established principle in Canadian law
that serious state-imposed psychological stress can infringe security of
the person for the purposes of section 7.237 The cases thus far have applied
this principle in the context of criminal law,238 child custody,239 and unrea-
sonable delay by government entities.240 There exists overwhelming evi-
dence, much of it derived from the Australian experiment, that immigra-
tion detention, particularly indefinite detention, has disastrous effects on
the mental health of detainees.241 In addition, it is reasonable to assume
that the denial of the ability to regularize ones status, combined with en-

232 Ibid at para 107.
233 See e.g. Canadian Association of Refugee Lawyers, The Unconstitutionality of Bill C-4,
The Preventing Human Smugglers from Abusing Canadas Immigration System Act
(October 2011) at 12, online: .

234 [1994] 3 SCR 761 at 792, 120 DLR (4th) 348 [Heywood cited to SCR].
235 See ibid at 796.
236 See Kenney, supra note 12 at 5873 ([w]e have to be able to keep illegal immigrants in

custody, in a completely humanitarian way, so that they can be identified).

237 Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44 at paras 5556,

[2000] 2 SCR 307 [Blencoe].

238 See R v Morgentaler, [1988] 1 SCR 30 at 56, 44 DLR (4th) 385.
239 See New Brunswick v G(J), [1999] 3 SCR 46, 177 DLR (4th) 124; Winnipeg Child and

Family Services v KLW, 2000 SCC 48, [2002] 2 SCR 519.

240 See Blencoe, supra note 237 at para 115.
241 See supra note 19.

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forced family separation, will have serious negative psychological ef-
fects.242 The cumulative effect of putative or actual psychological harm by
reason of the DFN provisions may in itself ground a claim under section 7
since, as the Court in Suresh v. Canada (Minister of Citizenship and Im-
migration) made clear, grossly disproportionate government responses
may not satisfy the second limb of section 7, amounting to a denial of fun-
damental justice.243 This being said, to the extent that a person seeking
protection is found to be a security risk, psychological harm occasioned by
lengthy detention appears less likely to result in a finding that the Char-
ter has been infringed.244
As an additional rider to the comments above concerning section 7,
section 58.1 of the IRPA enables release of DFNs from detention upon the
request of a DFN if, in the Ministers opinion, exceptional circumstances
exist that warrant the release; release is also possible on the Ministers
own initiative if, in the Ministers opinion, the reasons for the detention
no longer exist. The insertion of these provisions responds to the finding
of the Supreme Court in Canada (AG) v. PHS Community Services Society
that the existence of a potential ministerial exemption from certain con-
sequences may protect legislation that confers discretion.245 Thus, section
58.1 might insulate the designation provisions from a finding that they
contravene principles of fundamental justice. Notwithstanding, PHS also
demonstrated that even if impugned provisions are valid, the correlative
exercise of discretion (including failure to act) might infringe the Char-
ter.246 Thus, the Ministers decision not to grant an exemption under sec-
tion 58.1 could itself be arbitrary or grossly disproportionate by reason of
its consequences, thereby infringing section 7.247 This would of course ne-
cessitate consideration of the facts in relation to a particular DFN; con-
crete evidence that a person was operationally involved in human smug-
gling or terrorism might justify ongoing detention.248 However, if the evi-
dence put forward relies on the simple fact that a person is an asylum
seeker who engaged the services of a human smuggler, this might lead to
the conclusion that detention is grossly disproportionate.

242 See Mansouri & Leach, supra note 76 at 110.
243 2002 SCC 1 at para 47, [2002] 1 SCR 3 [Suresh].
244 See Mahjoub (Re), 2013 FC 1095, FCJ No 1216 (QL).
245 See PHS, supra note 224 at para 114.
246 See ibid at para 117. See also Suresh, supra note 243 at para 5.
247 See PHS, supra note 224 at paras 12736.
248 Whether on the grounds of necessity for or consistency with a legitimate state interest

(see ibid at para 132).

THE TREATMENT OF ASYLUM SEEKERS 375

3. Cruel and Unusual Punishment

The detention provisions appear to infringe the guarantee in section

12 of the Charter against cruel and unusual treatment or punishment. It
is clear that section 12 applies in contexts beyond penal incarceration.249
Charkaoui tells us that, because of its potentially harmful psychological
effects, prolonged detention under immigration law requires ongoing re-
view and the provision of meaningful opportunities to challenge detention
or conditions of release.250 In that case, the Court denied that a breach of
section 12 (or section 7) of the Charter had occurred by reason of extended
detention251 since there were found to be meaningful opportunities for re-
view based on established criteria.252 Accordingly, it may be that the ex-
istence of review at six monthly periods in accordance with the criteria in
section 58(1) and Part 14 of the Regulations satisfies the requirement put
forward in Charkaoui. However, there is a crucial difference between the
DFN regime and that which was considered in Charkaoui: review under
the DFN regime is conducted by the Immigration Divisionan adminis-
trative entitywhereas the acceptability of the review process in Char-
kaoui was premised on robust ongoing judicial review of the continued
need for and justice of the detainees detention.253 This distinction in it-
self may be sufficient to challenge the detention regime on the basis of
section 12.

4. Section 1

Assuming that one or more of the grounds above is successful, it will
fall to the government to justify the infringement(s) under section 1 of the
Charter.254 The first limb of the R v. Oakes255 test requires that the objec-

249 See e.g. Rodriguez v British Columbia (Attorney General), [1993] 3 SCR 519, 107 DLR
(4th) 342; R v Blakeman (1988), [1990] 48 CRR 222, [1988] OJ No 1382 (QL) (Ont HC).

250 See Charkaoui, supra note 206 at para 107.
251 See ibid at para 110. A breach of section 7 was found on the alternative basis that de-
tainees were not provided with information necessary to effectively rebut the basis for
their incarceration (see ibid at para 65).

252 See ibid at paras 11016, 123.
253 Ibid at para 123 [emphasis added]. See also ibid: there must be detention reviews on a
regular basis, at which times the reviewing judge should be able to look at all factors
relevant to the justice of continued detention at para 117 [emphasis added]).

254 There is little doubt that the DFN provisions constitute a regime prescribed by law.
See Little Sisters Book & Art Emporium v Canada, 2000 SCC 69 at para 133, [2002] 2
SCR 1120 for the argument that the discretion conferred upon the Minister to make
designations means that the decision, rather than the statute, is amenable to challenge.
The detailed nature of the provisions that come into play upon the making of a designa-
tion suggests that it would be specious to characterize the regime as not being pre-
scribed by law.

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tive sought by the limit is sufficiently important.256 As noted above, the
stated objectives of the DFN regime (determination of the identity and po-
tential security risks of irregular arrivals257) are by no means unim-
portant. The underlying objective, however, is potentially on less stable
ground. While section 3(2) of the IRPA provides that deterrence is not a
valid objective, in Canada, as in Australia,258 [t]he most fundamental
principle of immigration law is that non-citizens do not have an unquali-
fied right to enter or remain in the country.259 There is added support for
the conclusion that deterrence is, in law, a permissible objective despite
the IRPA if a national security element inheres in the purpose of the DFN
regime,260 since protection of Canadas national security and related in-
telligence sources undoubtedly constitutes a pressing and substantial ob-
jective.261 Assuming that this first limb is satisfied, designation and ini-
tial detention likely bear a sufficiently rational connection to the purpose
of the provisions given that these mechanisms enable identity and securi-
ty checks. It is less clear whether long-term or indefinite detention, denial
of status and rights to family reunion, and rights of appeal bear a rational
connection to the purpose of the law. On the one hand, their punitive na-
ture could be considered a rational, if inhumane, means of deterring un-
authorized arrivals. On the other hand, these means can be considered so
disproportionate that any connection cannot rightly be called rational; in-
deed, this would be the case if the core objectives were found to be identity
and security checks. Whether or not the provisions survive this far, it is

255 [1986] 1 SCR 103 at 13839, 26 DLR (4th) 200 [Oakes].
256 Determination of the specific purpose of the DFN regime will be a matter for judicial
determination, since legislative intent is not divined merely by recourse to the subjec-
tive intentions of policy makers. While [l]egislative history has usually been held in-
admissible in Canada under ordinary rules of statutory interpretation, Hogg argues
that there is no reason why such history should not be resorted to in the context of judi-
cial review. In addition, it is now established that reports of royal commissions and law
reform commissions, government policy papers and even parliamentary debates are in-
deed admissible (Peter W Hogg, Constitutional Law of Canada (Toronto: Carswell,
2012) at 15-15).

257 See IRPA, supra note 3, s 20.1.
258 See Chu Kheng Lim, supra note 60.
259 Chiarelli v Canada (Minister of Employment and Immigration), [1992] 1 SCR 711 at

733, 90 DLR (4th) 289.

260 For example, s 20.1(1)(b) refers to criminal organization[s] or terrorist group[s]. That
said, a reviewing court may be inclined to treat the reference to terrorist groups as a
colourable device to achieve validity rather than a legitimate government objective (see
R v Morgentaler, [1993] 3 SCR 463, 107 DLR (4th) 537 (colourability doctrine allowing
Court to go beyond form alone … [and] examine the substance of the legislation to de-
termine what the legislature is really doing at 496).

261 Charkaoui, supra note 206 at para 68.

THE TREATMENT OF ASYLUM SEEKERS 377

likely that they will fall foul of the next limb of the proportionality in-
quiry, which questions whether the means adopted minimally impair
Charter rights. It is not clear that the IRPAs initial fourteen-day deten-
tion period without review (at section 57.1(1)) can be considered a mini-
mal impairment.262 The Supreme Court has indicated that a margin of
appreciation must be accorded to the legislature; however, it has also
made clear that infringements of section 7 in particular are held to an ex-
tremely high standard of justification.263 For arguments sake, if the provi-
sions were held to minimally impair a DFNs Charter rights, it could also
be argued that the effects of those impairments outweigh the benefits of
the law in the final consideration of the Oakes test.264 This is in essence a
normative determination as to whether even minimally impairing
measures constitute impermissible infringements of Charter values.265
Given the nature and severity of the infringements, it seems unlikely that
the DFN provisions would survive the final part of the test.

Conclusion
During debate in the House of Commons concerning Bill C-31, then
Minister of Citizenship, Immigration and Multiculturalism Jason Kenney
stated:

Canada has a proud tradition as a welcoming country. For genera-
tions, for centuries, we have welcomed newcomers from all parts of
the globe. For more than four centuries, we have welcomed new ar-
rivals, economic immigrants, pioneers, farmers, workers and, of
course, refugees needing our protection. We have a humanitarian
tradition that we are very proud of. … With this bill, this government
is going to reinforce and enhance our tradition of protecting refu-
gees.266

262 For example, this initial detention period could be shortened to accord with the re-
quirement that the Immigration Division review the reasons for permanent residents
who are taken into detention under section 57(1) of the IRPA within forty-eight hours.
The time in which subsequent review occurs could be shortened. The denial of status
could be removed or at least shortened; so too could the prohibition on family sponsor-
ship and the grant of travel documents.

263 See Charkaoui, supra note 206 (violations of s. 7 are not easily saved by s. 1 at para
66). The Court also referred to Re BC Motor Vehicle Act, [1985] 2 SCR 486 at 518, 24
DLR (4th) 536, in which Lamer J (as he then was) stated, [s]ection 1 may, for reasons
of administrative expediency, successfully come to the rescue of an otherwise violation
of s. 7, but only in cases arising out of exceptional conditions, such as natural disasters,
the outbreak of war, epidemics, and the like.

264 See Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 SCR 567.
265 See Hogg, supra note 256 at 38-43.
266 Kenney, supra note 12 at 5872.

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378

While the Minister engaged in an overly generous reading of Canadian
history, it is true that Canada has periodically evinced great hospitality
toward non-citizens. However, it is difficult to see how Bill C-31 will rein-
force or enhance the protection of refugees. Instead, as demonstrated, the
measures introduced by the Bill, particularly the DFN provisions, rein-
force the veracity of Dauvergnes view that

migration is becoming normalized as a security threat at this point
in time … it is more and more normal to treat migration, and asylum
seeking, as a policing matter rather than a question of economic re-
distribution, social composition, or humanitarianism.267

In this respect, the DFN regime is antithetical to a politics of hospitality;
it is also contrary to international law and the Charter.

The passage of Bill C-31 places Canada in a position analogous to Aus-
tralia following its introduction of mandatory and indefinite detention in
the early 1990s. In the context of a comparison between Canadian and
Australian detention regimes, it must be recalled that the fulcrum upon
which Australias mandatory detention system initially swung was the
creation of a class of designated personsa group of others who de-
served neither hospitality nor humane treatment. Having enacted its own
designation provisions in respect of groups of individuals, and countries
deemed to be safe,268 Canada now faces a choice similar to that confront-
ing Australia two decades ago: to proceed down a path of securitization
and ideological hostility toward asylum seekers, or to revert back to the
more hospitable position taken in the 1970s.

The analysis in this paper demonstrates that Australia erred not only
in introducing designation and mandatory detention, but more particular-
ly, in building upon this policy based on a self-referential philosophy
wherein [e]ach decision to tighten the law was made on the logic of earli-
er initiatives.269 Logic of this sort led the former government to propose
the draconian measure of sending asylum seekers to a country that has
not ratified the Refugee Convention, and where refugees may be subject
to detention, prosecution, whipping and deportation.270 The present gov-
ernment has adopted an approach to asylum seekers that rhetorically and
operationally resembles military action; an approach that in certain in-

267 Dauvergne, Less Brave New World, supra note 5 at 542.
268 See Order Designating Countries of Origin, supra note 3.
269 Crock, Defining Strangers, supra note 40 at 1070.
270 Spinks, Destination Anywhere?, supra note 122 at 8 [internal citation omitted].

THE TREATMENT OF ASYLUM SEEKERS 379

stances amounts to an attempt to deny the very right to have rights.271 To
borrow from Benhabib, in Australia the right to universal hospitality
[has been] sacrificed on the altar of state interest.272
Unless Canada distances itself from Australias model, Bill C-31 puts
Canada at risk of sinking further into the securitizing logic that charac-
terizes Australias approach to asylum seekers; history supports this
claim. Without wishing to obscure differences in context and approach,
there is an undeniable correspondence between the treatment of, and atti-
tudes toward, refugees in Australia and Canada throughout much of the
twentieth century; in no small part because of a shared degree of angst
about their national identity.273 While Canada largely eschewed milita-
ristic policies toward asylum seekers in the 1990s and even in the wake of
9/11, Bill C-31 (and other measures such as the CanadaUS Safe Third
Country Agreement and the Multiple Borders Strategy) suggests that
Canada is deliberately working toward Australian-like migration poli-
cies.274 For Canada to regain the position it held in the 1970s and early
1980s as a global leader in refugee protection, it must realign its policies
away from an ideology of security and control, toward a politics of hospi-
tality. Repealing the DFN provisions will be a crucial step in this process.

271 See supra note 33 for a discussion of the right to have rights. In particular, the detain-
ing of 157 Sri Lankan asylum seekers onboard an Australian customs vessel constitut-
ed an attempt to deny access to legal representation and the judicial system.

272 The Rights of Others, supra note 9 at 177.
273 Dauvergne, Humanitarianism, supra note 115 at 10.
274 See Refugee Care, supra note 3 (the governments attempt to limit refugees access to
health care is another example of this trend). While the Federal Court struck down the
measures at issue in Refugee Care, the government has indicated its intention to appeal
(see Payton, supra note 3).