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Arbitrary Lines: Refugee Law in Canada 1986 – 2012

Arbitrary Lines: Refugee Law in Canada 1986 – 2012


More refugees arrive by plane in any given year than by boat, yet the visibility of a large group of people arriving at once grips a nation’s attention, exposing latent fears and prejudices more readily than the relatively quiet and dispersed arrival of refugees by air. In Canada, the arrival of two boats off the coast of British Columbia, carrying hundreds of Tamil refugees, set off a chain of legislative amendments, and definitively changed the lens through which many Canadians viewed refugees.

Joshua Vettivelu’s work explores the idea that borders define to whom we show empathy.  Borders create membership among those within them, holding them together, and empathy is limited to those with membership.  Borders also delineate the reach of a nation state’s sovereignty, allowing nations to govern themselves without interference. The flip side of this is that there is no freedom of mobility of individual persons, including those seeking amnesty. Borders have further created a clearly demarcated line of who is to be feared: people outside of those lines, those who are not part of the membership.

The Canadian government responded to the arrival of the Tamil boat people in 2009 and 2010 by introducing legislation that would punish migrants under the guise of protecting vulnerable amnesty-seekers and deterring human smuggling. Rather than focusing on smuggling and smugglers, the provisions in these bills addressed how to deal with refugees who arrived via a particular mode of travel. The measures also purported to address a perceived strain on resources, however, rather than focusing on reallocating resources, the government chose to enact measures that negatively impacted refugees. Several bills were introduced: Bill C-49 (40-3), Bill C-4 (41-1), Bill C-11 (40-3) and Bill C-31 (41-1). While Bill C-49 and Bill C-4 did not make it past their table reads, some of their content made it into Bill C-31, which received Royal Assent. These laws changed the landscape of refugee claims processing.  The government introduced the indefinite and mandatory detention of certain refugees, restricted procedural rights, and punished those who used human smugglers. Provisions were introduced to allow the government to arbitrarily decide which denied claimants could appeal and which could not, based on their country of origin and not on the merits of their individual claims. The laws streamlined refugee processing, in effect preventing refugees from having adequate time to prepare their claims, jeopardizing their rights to procedural fairness. The government’s reaction, compounded by the media, propagated fear that the Tamil refugees may be terrorists, that they may be dangerous or unable to integrate. The legislative amendments further reinforced false ideas that refugees who arrive at our borders are acting illegally and that they are “queue jumping”. The policy changes perpetuated the idea that a large number of people who arrive as refugees are “taking advantage of the system”.

We are all human, without control over the circumstances of our birth. Aid should be provided to those in need because it is the right thing to do; it is a matter of fundamental respect. But there is also an international and national framework that obligates Canada and other nation states to provide refuge to amnesty-seekers. The 1951 United Nations Convention Relating to the Status of Refugees (Refugee Convention) was ratified by 145 countries. It defines who a refugee is, defines their rights, and requires that states that are party to the Convention offer protection to refugees who are within their territory. Under the Refugee Convention, a person must be outside of the country of his or her nationality in order to qualify for protection, and states cannot punish refugees for entering or being present in another country without status. Further, refugees have the right not to be returned to their country of origin or nationality (the principle of non-refoulement). A refugee is required to approach their own home state before seeking protection of another country. Stated another way: countries are not obligated to protect an individual until or unless their home state can’t protect them. People fleeing their countries and seeking refuge have nowhere else to go. They have been denied the least that a human being is owed: their basic right to human dignity. They have been denied the basic duty of protection, which, in this sovereign state system, is owed by a state to the people within it. Asylum seekers have legitimate status under international law. It is a basic principle of international refugee law, adopted into Canada’s domestic laws, that claimants be able to arrive at borders in any manner to make their claim for protection.

While the modern refugee system is a product of the twentieth century, the principles of providing refuge to those fleeing persecution is ancient. However, our concept of membership within borders has distorted the spirit and purpose of this system. The fear of outsiders and the fear of the unknown has resulted in a legal framework that lowers the value of human rights and dignity to protect borders from tenuous threats. To many people, refugees are an abstract, singular group of people, rather than individuals with their own experiences, values, and identities. Rather than putting human safety and human rights first, the fear of “others” has taken prominence in the assessment of refugee claims.

When my own family, including my mother and my older brother, arrived in Canada in the 1980s as refugees (a time when many Tamils were arriving from Sri Lanka to Canada), they were put up in a hotel for the weekend because they arrived on a Friday. They told immigration officers their story and were permitted to continue their lives while their claim was processed. There was no detention, no panic, or suspicion. They went on to grow their family and make a home in Canada and become part of the membership. However, the choices made by policy makers have arbitrarily changed how membership is decided. Had my family arrived in more recent years, our story may be a different one.

Membership defined by borders holds us together, but for how long and how many can it hold? Based on arbitrary lines and exclusion, this type of membership is weak and will eventually disintegrate. The commonality of the human experience is a much stronger, inclusive definition of membership.  


Gobhina Nagarajah


Gobhina Nagarajah works as a lawyer in private practice. She is currently a commissioner on the Human Rights Commission of Newfoundland and Labrador and is also an active member of Amnesty International Canada.

©David Howells 2015