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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 response bears striking parallels to Australia’s introduction of mandatory and indefinite detention of non-citizens following the arrival of some 735 Cambodian asylum seekers between 1989 and 1994. 4

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

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

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

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

the right of an alien not to be treated as an enemy upon his arrival in another’s country. If it can be done without destroying him, he can be turned away; but as long as he behaves peaceably he cannot be treated as an enemy. 27

The right is not to remain indefinitely within the borders of a nation exercising hospitality; such a right arises only through “a special, charitable agreement” granted by the state. 28 This limitation is a product of Kant’s belief in the importance of boundaries: that a world federation, as opposed to a world government, is a necessary condition for peaceful coexistence. 29

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

recognizing the moral claim of refugees and asylees to first admittance; 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, regardless of the status of their political membership. 33

The right to hospitality is not absolute. 34 Instead, according to Benhabib, it imposes an imperfect or conditional moral duty that permits certain exceptions and even derogation in the face of existential threats. 35 What is not permitted, though, is the implementation of processing regimes that designate claimants, based on their mode of arrival, for long-term detention and severely limited civil rights. From a cosmopolitan perspective, long-term detention may be seen as an infringement of the obligation 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 asylum seekers are not merely seeking temporary sojourn. However, adopting Benhabib’s 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 Kant’s 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 understood as encompassing not only denial of entry but also punitive or carceral treatment by reason of one’s attempt to seek entry, is reflected in the Refugee Convention’s 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 applying unnecessary restrictions to the movement of refugees. 36 While provisions 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 law—which may be seen, in part, as a legal instantiation of the principles of hospitality and cosmopolitanism—offers a way of addressing the tension between sovereignty and human rights 38 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 developments. It then parses the changes since 1989 with a view toward demonstrating the lessons to be learned by Canada from Australia’s inhospitable approach to asylum seekers. Part II analyzes Canada’s position vis-à-vis asylum seekers, with a particular emphasis on the DFN regime. It begins with a brief foray into the history of Canada’s treatment of asylum seekers. 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 adopting Australia’s security-oriented, inhospitable stance toward asylum seekers.

I. Exclusion and Detention: Australia’s Treatment of Asylum Seekers

A. A Legacy of Inhospitality

Definitional uncertainty regarding citizenship and an inhospitable attitude toward non-white foreigners (and Indigenous Australians) is a constitutive aspect of Australian law and culture. The drafters of the Australia Constitution 39 deliberately refrained from defining the meaning and parameters of citizenship—at 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 immigrants—the infamous White Australia policy. 41 While Australia admitted large numbers of Europeans in the wake of World War II, 42 it is a testament to the country’s 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 migrants; 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 interdiction of boats. 44 Part of the response was the establishment of a Comprehensive 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 Australia. The increasingly multicultural nature of Australian society—generated in no small part by the generosity demonstrated toward Vietnamese refugees in the 1970s—reignited latent concerns over the composition 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 Cambodian 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 at the time of its arrival in port if “an authorized officer reasonably believe[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 Officially, the motivation for the introduction of the discretionary detention regime was to ensure that persons arriving by boat were not forced to “return 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 others, 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 Australian standards) in the number of asylum claims by people who had arrived 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 rejections. 56 Despite judicial orders setting aside the decisions rejecting the applicants’ 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 demonstrated in the 1970s toward a securitizing approach that has influenced Australian policy ever since. Crucially, the 1992 Act established the class of “designated person,” defined in part by a temporally specific provision applying the regime to non-citizens who arrived on boats between 19 November 1989 and 1 December 1992 59—a definition that was clearly designed specifically to capture the Cambodians who had arrived in that period. 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 Commonwealth’s power over “aliens” under section 51(xix) of the Australian Constitution. 62 The result of Chu Kheng Lim was that the plaintiffs remained in immigration detention. 63 In 1997, the United Nations Human Rights Committee found in A v. Australia 64 that the continued detention of the Cambodian applicant by Australian authorities for four years constituted arbitrary detention contrary 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 essence, 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 migration zone who were not lawful non-citizens. 67 Thus, with minor exceptions, any person in Australia without a valid visa was thenceforth an unlawful non-citizen. Section 54W 68 (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 irrelevant to their legality. 71 Soon after, in Re Woolley, 72 the High Court upheld the Migration Act’s detention provisions in respect of children. 73

In spite of the introduction of mandatory detention, asylum seekers continued to arrive on Australia’s shores. Unauthorized boat arrivals increased from 200 in 1998 to around 1,500 in October 1999, 74 prompting the government to establish Temporary Protection Visas (TPVs). 75 The (then) Minister for Immigration and Multicultural Affairs, Phillip Ruddock, 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 2001 78 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 Under this policy, the territories of Christmas Island, Ashmore and Cartier Islands, and the Cocos (Keeling) Islands 81 were excised from Australia’s 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 offshore 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, offshore processing remained in operation at Christmas Island and long-term mandatory detention continued unabated 86—as did the arrival of boats. Whether as a direct result of Labor’s somewhat less punitive stance, or by reason of other regional factors, there was a significant increase in the arrivals of boats following the dismantling of the Pacific Solution. 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 striking 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 panicked at this new reality, introducing a series of legally and politically flawed measures. The “Malaysia Solution” was devised, under which Australia would send up to 800 boat people to Malaysia, and in return Australia 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 Panel 91 convened by the government, the Gillard Government passed legislation enabling the Minister to designate certain places as regional processing countries, without “reference to the international obligations or domestic law of that country”; 92 the Minister subsequently designated PNG as a regional processing centre. 93 A challenge to the provision conferring power on the Minister to designate regional processing centres, and to the designation 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 government’s first measures was the implementation of its Operation Sovereign Borders policy, which centres on a Pacific Solution-style “military-led response to combat people smuggling and to protect our borders.” 96 The key component of the policy is “external disruption”; 97 that is, forcibly turning back boats. 98 Other measures include paying Indonesian villagers for information, purchasing unseaworthy boats, increasing the number of Australian Federal Police in overseas missions, and bolstering Australia’s border protection fleet. 99 A ban on publication of the number of boat arrivals also forms part of the solution. 100

Perhaps the most striking aspect of the government’s 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 Immigration and Border Protection issued a directive in October 2013 to all federal public servants to use the term “illegals” when referring to asylum seekers. 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, reports have emerged of asylum seekers being forcibly returned to Indonesia 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 legal advice. 107 Eventually, the asylum seekers were briefly brought to Australia before being removed to Nauru. 108

In December 2014, the Australian government passed legislation 109 that, inter alia, reintroduces TPVs 110 (including restrictions on the countries which holders may visit 111); 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 migration laws and treating asylum seekers as threats, rather than as people deserving protection (or at the very least, a proper process of determining 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 expediency—the language of protection is deployed 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 Australia’s approach has not worked at the level of deterrence and, second, that the flow-on effects of the securitization of Australian 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 Immigration’s inquiry into Bill C-31:

Australia now has more than two decades of experience with a mandatory detention scheme for people seeking refugee protection. Almost 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 dollars. 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 Australia 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 Australian 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 statements 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, 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 context, 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 destinations 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 seekers 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 legitimate motivation for immigration detention, it would thus seem to rest on flawed assumptions regarding its efficacy, since, in Mary Crock’s 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 Australia’s 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 offshore processing between 2001 and 2007. 127 Fewer than seventeen hundred 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 system 129 and decreased visibility of detainees 130) 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 submitted evidence to a Senate estimates hearing that the cost of detention (offshore and onshore) for 2012–2013 would be approximately AUD$1.5 billion. 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 under the organisation’s 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 globalization process” and the economic liberalization project of the post-Cold War era. 134 A fitting, if perverse, end stage of this cycle of economic influence is the fact that private corporations manage Australia’s immigration detention facilities. Since 2009, Serco Group has been contracted to manage the detention centre at Christmas Island and other centres throughout 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 contrary—despite this degree of expenditure, the UNHCR’s 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 UNHCR’s Detention Guidelines. 137 Given the disproportionate expense and poor standards of treatment reported in offshore Australian facilities, these findings reinforce why Canada 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 manifest. 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 Prevention 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 detention—statistics that are “incomparable to any other situation or population.” 140 A 2013 inquiry by the Australian Ombudsman found that between July 1, 2010 and April 24, 2013, there were 11 deaths in immigration 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 obligation to accord hospitality, even if persons are seeking permanent membership in a community rather than temporary sojourn. Legally, detention

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 judicial 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. Australia 145 found that Australia’s indefinite detention of persons subject to adverse security assessments breached articles 7 and 9(1), (2) and (4) of the ICCPR. 146 The fact that the DFN regime enables potentially indefinite detention suggests that Canada may very well be the subject of similar international criticism in the future.

Australia’s culture and politics have also suffered from its inhospitality toward asylum seekers. Despite the nation’s racist history, sovereignty has renewed its claim on the social consciousness in the form of xenophobia and callousness. Over the past twenty-five years, politicians have leveraged the asylum seeker issue for political gain, 147 and refugees have become 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 objective, 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 While it may be true that not all of the Sri Lankans meet the criteria for protection, the government’s position is an example of a broader trend toward involuntary repatriation by states that are “unwilling to actualize the principle of burden sharing.” 151 The rhetoric surrounding the introduction 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 immigration detention is not to suggest that borders do not matter, or that sovereignty is unimportant—the right of hospitality presupposes both the existence 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 international law. The shift in Australia toward securitizing migration, particularly forced migration, amounts to an inhospitable attempt to avoid addressing the needs of people who, in the eyes of proponents of such policies, have the temerity to seek protection at the doorstep without calling first to seek permission. This approach has had a demonstrably destructive 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 formulating future laws and policies concerning asylum seekers.

II. The DFN Regime: Protecting Canada’s Immigration System?

A. A Mixed Legacy

Canada has never formally enacted an equivalent to the White Australia policy. However, at various points in its history it has evinced an equivalent attitude of antipathy toward non-white immigrants and asylum 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 immigration 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 immigrants “belonging to any race deemed unsuited to the climate or requirements of Canada,” 159 as well as the infamous Komagata Maru and St. Louis incidents. 160 To be sure, Canada admitted hundreds of thousands 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 conception of the Canadian nation, 162 and did not affect “the underlying economic determinants of Canadian immigration policy.” 163

Like Australia, Canada’s attitude toward refugees shifted in the 1970s. 164 In 1976, Canada enacted a new Immigration Act 165 that expressly recognized its obligations under the Refugee Convention, which it had ratified in 1969. 166 Between 1975 and 1981, Canada demonstrated an attitude 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 citizens. 167 Canada’s generosity during this period, when it accepted more refugees per capita than any other nation, led to its receipt of the Nansen Medal—awarded 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 appeared 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 Court’s 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 Deterrents and Detention Act. 172 This Act extended powers of detention, 173 limited 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 seekers. 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 security 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 situation was not entirely unreasonable given that the majority of the boat arrivals were economic migrants. 177 The Committee viewed detention as a necessary component of Canada’s immigration system, and its recommendations 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 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 Canada’s historical nervousness over unauthorized 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-31—and 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-31—Bill C-49 181—was introduced in Parliament 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 introduced. 183 In a manner reminiscent of the Australian legislation introducing 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 Columbia carrying some of the most damaged and wounded people on earth.” 184 Putatively entitled the Preventing Human Smugglers from Abusing Canada’s Immigration System Act, the Bill in fact targeted “those who turn to smugglers for assistance.” 185 In 2012, the substantive provisions of Bill C-4 were incorporated within the omnibus Bill C-31, Protecting Canada’s Immigration System Act.

The DFN regime introduced by Bill C-31 hinges on section 20.1 of IRPA, 186 which confers power on the Minister to “designate as an irregular arrival the arrival in Canada of a group of persons” on the basis that examinations for the purpose of determining identity and inadmissibility cannot be conducted in a timely manner, or because of a reasonable suspicion that their entry involved people smuggling (contrary to section 117(1)). 187 Section 20.1 does not on its face restrict the application of the DFN provisions to asylum seekers, although in reality “irregular arrivals” are virtually certain to be refugee claimants. While the Minister must have regard to “the public interest” 188 when making a designation, an opinion that the relevant criteria are established is a sufficient basis for designation. Furthermore, subsection (b) 189 enables designation by association, since it is sufficient that a person’s arrival in Canada was as part of a group in circumstances that may have involved a contravention of section 117(1), irrespective of whether the person is deemed a legitimate asylum seeker. This may contravene international non-discrimination principles. 190 It also squares with a turn toward treating refugee claims as a matter of security, rather than a matter of human rights and immigration. 191 From this perspective, inhospitable treatment of asylum seekers is framed as muscular state policy designed to protect the nation from external threats.

In a manner reminiscent of Australia’s temporally specific definition of “designated person” in the 1992 Act, Bill C-31’s transitional provisions enable 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 children 194 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 conflict 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 application 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 designation 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 detained” 198 if it is necessary for the completion of an examination or because of suspected inadmissibility. While Bill C-31’s 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 in Australia whereby all unauthorized boat arrivals are subject to mandatory detention.

Initial review of a DFN’s case must occur within fourteen days of designation. By section 58(1.1),

on the conclusion of a review under subsection 57.1(1), the Immigration 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 satisfied at each review that the person falls within one of the specified categories in section 58(1), detention may be indefinite. In this respect, the amendments are similar in effect to the 1994 changes to Australia’s immigration system, in which detention of asylum seekers became potentially indefinite. 202 The Immigration and Refugee Protection Regulations articulate a list of factors to be considered in determining whether a person is to be released from detention. 203 However, as the Immigration Review Board’s 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 addition 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 determination 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 determination. The five-year bar also applies to applications for permanent residency on humanitarian grounds. 209 The inability to regularize one’s 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 purposes 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 impecuniousness 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 argued that “[d]enying family reunification by denial of access to [permanent 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 article 31(1) of the Refugee Convention and demonstrates a deliberately inhospitable 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 decision 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 Convention. 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 Romanians 216 who arrived in Quebec after having crossed the Canada-US border in five groups between February and October 2012. 217 Given that none of the eighty-five DFNs were ever proven to be the smugglers who facilitated the Romanians’ 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 Canada’s immigration system.” 218 Instead, the designation demonstrates the actualization 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 12 219 of the Charter may be asserted by everyone who is physically present in Canada. 220 This being said, Toussaint v. Canada (AG) indicates that there are limits to the ability of non-citizens within Canada to invoke the protection of the Charter. 221 Furthermore, in a recent 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

1. Detention and Imprisonment

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 because there was a rational connection between the issuing of the certificate 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 regime’s objectives are to determine the identity and potential security risks of irregular arrivals; textually, therefore, the objectives of the regime are not intrinsically irrational or arbitrary. It follows that the designation 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 objectives, or bear a rational relationship to those objectives. 224 Crucially, though, the consequences of designation strongly suggest a deterrence objective. Section 3(2) of the IRPA indicates that deterrence is not a valid objective 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 arbitrary, 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 certificate context within twenty-four hours, “indicate the seriousness with which the deprivation of liberty is viewed, and offer guidance as to acceptable 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 judicial determination 227 of the reasonableness of the certificate infringed both 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 determination is necessary, or in furtherance of the legislative objective, which in turn suggests that such detention is arbitrary and in contravention of sections 9 and 10(c). This being said, it is arguable that the time involved in processing significant numbers of asylum seekers justifies the lengthy detention 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 imposed in an arbitrary manner contrary to fundamental justice; 229 in particular, the principle that persons must be able to challenge ongoing detention or the conditions of release. In the migration context, Charkaoui makes clear that a challenge “to the fairness of the process leading to possible deportation and the loss of liberty associated with detention raise[s] important issues of liberty and security” and, accordingly, engages the detainee’s section 7 Charter rights. 230 The Court in that case held that judicial oversight of the process did not meet the requirements of section 7 because “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 minimal judicial scrutiny of the Minister’s determination that a foreign national is a DFN. While the argument that immigration detention is not arbitrary per se might support a finding that the initial fourteen-day period of detention is valid, it is unlikely that ongoing detention without judicial scrutiny could pass constitutional muster. According to McLachlin CJ in Charkaoui:

[W]here a person is detained or is subject to onerous conditions of release 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 circumstances of the individual case. Such persons must have meaningful opportunities 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. Heywood 234 makes clear that the doctrine of overbreadth looks to the purpose underlying 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 disproportionate—that is, beyond what is necessary to achieve the legislative object—to warrant judicial 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 wellbeing 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 unreasonable delay by government entities. 240 There exists overwhelming evidence, much of it derived from the Australian experiment, that immigration 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 one’s status, combined with enforced family separation, will have serious negative psychological effects. 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 Immigration) made clear, grossly disproportionate government responses may not satisfy the second limb of section 7, amounting to a denial of fundamental 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 Charter 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 Minister’s opinion, exceptional circumstances exist that warrant the release”; release is also possible on the Minister’s own initiative “if, in the Minister’s 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 consequences 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 Charter. 246 Thus, the Minister’s decision not to grant an exemption under section 58.1 could itself be arbitrary or grossly disproportionate by reason of its consequences, thereby infringing section 7. 247 This would of course necessitate consideration of the facts in relation to a particular DFN; concrete evidence that a person was operationally involved in human smuggling or terrorism might justify ongoing detention. 248 However, if the evidence 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.

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 review 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 detention 251 since there were found to be meaningful opportunities for review based on established criteria. 252 Accordingly, it may be that the existence 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 Division—an administrative entity—whereas the acceptability of the review process in Charkaoui was premised on “robust ongoing judicial review of the continued need for and justice of the detainee’s detention.” 253 This distinction in itself 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. Oakes 255 test requires that the objective sought by the limit is sufficiently important. 256 As noted above, the stated objectives of the DFN regime (determination of the identity and potential security risks of irregular arrivals 257) are by no means unimportant. 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 unqualified 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 Canada’s national security and related intelligence sources undoubtedly constitutes a pressing and substantial objective.” 261 Assuming that this first limb is satisfied, designation and initial detention likely bear a sufficiently rational connection to the purpose of the provisions given that these mechanisms enable identity and security 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 nature could be considered a rational, if inhumane, means of deterring unauthorized arrivals. On the other hand, these means can be considered so disproportionate that any connection cannot rightly be called rational; indeed, 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 likely that they will fall foul of the next limb of the proportionality inquiry, which questions whether the means adopted minimally impair Charter rights. It is not clear that the IRPA’s initial fourteen-day detention period without review (at section 57.1(1)) can be considered a minimal 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 extremely high standard of justification. 263 For argument’s sake, if the provisions were held to minimally impair a DFN’s 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 generations, for centuries, we have welcomed newcomers from all parts of the globe. For more than four centuries, we have welcomed new arrivals, 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 refugees. 266

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 reinforce or enhance the protection of refugees. Instead, as demonstrated, the measures introduced by the Bill, particularly the DFN provisions, reinforce the veracity of Dauvergne’s 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 redistribution, 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 Australia 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 Australia’s mandatory detention system initially swung was the creation of a class of “designated persons”—a group of others who deserved 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 confronting 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 particularly, 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 earlier 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 government has adopted an approach to asylum seekers that rhetorically and operationally resembles military action; an approach that in certain instances 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 Australia’s model, Bill C-31 puts Canada at risk of sinking further into the securitizing logic that characterizes Australia’s 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 attitudes 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 militaristic policies toward asylum seekers in the 1990s and even in the wake of 9/11, Bill C-31 (and other measures such as the Canada—US Safe Third Country Agreement and the Multiple Borders Strategy) suggests that Canada is deliberately working toward Australian-like migration policies. 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 hospitality. Repealing the DFN provisions will be a crucial step in this process.