Canadian Refugee Determination and Advanced Liberal Government

Canadian Journal of Law and Society

Volumn 13, Issue 2, 1998, Pages 177-207

  Lippert, Randy ^a  

^a NONE   (Canada)

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EID: 85010096889     PISSN: 08293201     EISSN: 19110227     Source Type: Journal    
DOI: 10.1017/S0829320100005780     Document Type: Article

References (199)

1. 28 July 1951,189 U.N.T.S. 137.
2. 31 January 1967, 606 U.N.T.S. 267.
3. E.g., with respect to the documentation centres specifically, during a personal interview (28 July 1995), a legal authority who authored a book on Canadian refugee determination in the 1980s referred to their introduction in Canada as “a major advancement.” See also F. Houle, “The Credibility and Authoritativeness of Documentary Information in Determining Refugee Status: The Canadian Experience” (1994) 6 International Journal of Refugee Law 6 at 30.
4. S. Rusu, ‘The Development of Canada's Immigration and Refugee Board Documentation Centre” (1989) 1 International Journal of Refugee Law 319 at 320 [hereinafter “The Development”].
5. M. Mandel, The Charter of Rights and the Legalization of Politics in Canada, rev. ed. (Toronto: Thompson Educational Funding, 1994).
6. Singh v. Minister of Employment and Immigration [1985], 1 S.C.R. 177 [hereinafter Singh].
7. Mandel, 1 S.C.R. 3 at 257.
8. 1 S.C.R.
9. G. Creese, “The Politics of Refugees in Canada” in V. Satzewich, ed., Deconstructing a Nation: Immigration, Multiculturalism, and Racism in 90's Canada (Halifax, N.S.: Fernwood, 1991) 123.
10. T. Basok, “Refugee Policy: Globalization, Radical Challenge, or State Control?” (1996) 50 Studies in Political Economy 133 at 160.
11. P. Miller & N. Rose, “Governing Economic Life” (1990) 19 Economy and Society 1 at 14.
12. C. Gordon, “Afterword” in C. Gordon, ed., Power/Knowledge: Selected Interviews and Other Writings, 1972–1977 by Michel Foucault (New York: Pantheon, 1980) 229 at 248.
13. N. Rose & P. Miller, “Political Power Beyond the State: Problematics of Government” (1992) 43 British Journal of Sociology 173 at 175.
14. M. Dean, Critical and Effective Histories: Foucault's Methods and Historical Sociology (New York: Routledge, 1994) at 182.
15. Miller & Rose, Critical and Effective Histories: Foucault's Methods and Historical Sociology 9 at 8.
16. M. Valverde, “‘Despotism’ and Ethical Liberal Governance” (1996) 25 Economy and Society 357 at 358.
17. Rose & Miller, “‘Despotism’ and Ethical Liberal Governance” 11 at 179.
18. N. Rose, “Government, Authority and Expertise in Advanced Liberalism” (1993) 22 Economy and Society 283 at 292 [hereinafter “Government, Authority and Expertise”].
19. “Government, Authority and Expertise”, at 290.
20. N. Rose, “Governing ‘Advanced’ Liberal Democracies” in A. Barry, T. Osborne, & N. Rose, eds., Foucault and Political Reason: Liberalism, Neo-Liberalism, and Rationalities of Government (London: NCL, 1996) 37 at 53 [hereinafter “Governing ‘Advanced’ Liberal Democracies”].
21. E.g., S. Ashenden, “Reflexive Governance and Child Sexual Abuse: Liberal Welfare Rationality and the Cleveland Inquiry” (1996) 25 Economy and Society 64.
22. E.g., P. O'Malley & D. Palmer, “Post-Keynesian Policing” (1996) 25 Economy and Society 137.
23. “Post-Keynesian Policing”, at 152.
24. E.g., Ashenden, “Post-Keynesian Policing” 19. ‘Advanced liberal’ is preferable because it refers to a set of features broader than that implied by these other terms. ‘Post-Keynesian’ seems limited to economic life and ‘neo-liberal’ (used most often in the governmentality literature), rather than referring to broad changes that encompass critiques from the Left and the Right, implies ideas contained within specific works, such as Friedrich von Hayek's The Road to Serfdom, 2d ed. (Chicago: University of Chicago, 1991).
25. Ashenden, The Road to Serfdom, at 53–54.
26. P. O'Malley in M. Valverde, ed., Radically Rethinking Regulation (workshop report) (University of Toronto, April 1994) at 28.
27. “Government, Authority and Expertise”, Radically Rethinking Regulation 16 at 295.
28. Radically Rethinking Regulation, at 295–96.
29. “Governing ‘Advanced’ Liberal Democracies”, Radically Rethinking Regulation 18 at 57.
30. Radically Rethinking Regulation, at 53.
31. G. Dirks, Canada's Refugee Policy: Indifference or Opportunism? (Montreal: McGill-Queen's University Press, 1977) at 230.
32. L. Gilad, The Northern Route: An Ethnography of Refugee Experience (St. John's, Nfld.: Institute of Social and Economic Research, 1990) at 349.
33. Canada, The Immigration and Population Study (Ottawa: Information Canada, 1974) at 106–16.
34. Mandel, The Immigration and Population Study at 241.
35. A. Nash, International Refugee Pressures and the Canadian Public Policy Response (Ottawa: Institute on Research on Public Policy, 1989) at 39 [hereinafter International Refugee Pressures].
36. The Immigration and Population Study, International Refugee Pressures 31 at 116.
37. Nash, International Refugee Pressures, at 39–43.
38. The Immigration and Population Study, International Refugee Pressures, at 41.
39. International Refugee Pressures, at 42.
40. Gilad, International Refugee Pressures 30 at 320–21.
41. G. Goodwyn-Gil, “Determining Refugee Status in Canada” (1987) Refugees 27 at 27–28.
42. International Refugee Pressures, Refugees 33 at 43.
43. H. Adelman, Canada and the Indochinese Refugees (Regina: L.A. Weigl Educational Associates, 1982) at 41.
44. Canada, Department of Manpower and Immigration, The Immigration Bill: Explanatory Notes of an Office of Consolidation of the Immigration Bill (Ottawa: Ministry of Supply and Services, 1976) at 29.
45. In 1974 there were only 89 refugee status claims reviewed (The Immigration and Population Study, Refugees 31 at 116)
46. whereas by 1979 there were 1165 and 1987 15,805 (Creese, Refugees 7 at 8).
47. By mid-1986 there were also 20,000 claimants in a backlog. See Ministry of Employment and Immigration, Refugee Determination in Canada: Proposals for Canada by g. Plaut (Ottawa: Ministry of Supply and Services, 1985) at 42–43.
48. Ashenden, The Immigration Bill: Explanatory Notes of an Office of Consolidation of the Immigration Bill 19 at 66.
49. Interview (21 February 1996) Vancouver; A. Simmons & K. Keohane, “Canadian Immigration Policy: State Strategies and the Quest for Legitimacy” (1992) 29 Canadian Review of Sociology and Anthropology 421 at 432.
50. Compare G. Dirks, “Canadian Refugee Policy: Humanitarian and Political Determinants” in E. Ferris, ed., Refugees and World Politics (New York: Praeger, 1985) at 130.
51. Gilad, Refugees and World Politics 30.
52. J. Hathaway, “The Conundrum of Refugee Protection in Canada: From Control to Compliance to Collective Deterrence” (1992) 4 Journal of Policy History 71 at 84.
53. D. Stoffman, “Open Door Travesty” (1994) Saturday Night 53 at 55.
54. A. Eaton, Globalization and Human Resource Management in the Airline Industry (Brookfield, U.S.A.: Avebury, Aviation, 1996).
55. Canada, Employment and Immigration, Indochinese Refugees: The Canadian Response, 1979 and 1980 (Ottawa: Ministry of Supply and Services, 1982).
56. International Refugee Pressures, Indochinese Refugees: The Canadian Response 33 at 70, 86.
57. Simmons and Keohane, Indochinese Refugees: The Canadian Response 44 at 423.
58. G. Dirks, Controversy and Complexity: Canadian Immigration Policy during the 1980's (Montreal: McGill-Queen's University Press, 1995) at 83 [hereinafter Controversy and Complexity].
59. The resources and processing times of the queue vary considerably with generally more visa officers and shorter processing times in Western regions. See Canadian Council for Refugees, Refugee Family Reunification (Montreal: CCR, 1995) at 30.
60. International Refugee Pressures, Refugee Family Reunification 33 at 91n.
61. See K. Stenson “Community Policing as a Governmental Technology” (1993) 22 Economy and Society 373 at 375.
62. D. Avery, “Dangerous Foreigners”: European Immigrant Workers and Labour Radicalism in Canada, 1896–1932(Toronto: McClelland & Stewart, 1979)
63. B. Roberts, Whence They Came: Deportation From Canada, 1900–1935 (Ottawa: University of Ottawa Press, 1989).
64. Basok, Whence They Came: Deportation From Canada 8 at 142–43.
65. Employment and Immigration Canada, The Refugee Status Determination Process: A Report of the Task Force on Immigration Practices and Procedures by W. Robinson (Ottawa: Ministry of Supply and Services, 1981).
66. International Refugee Pressures, The Refugee Status Determination Process: A Report of the Task Force on Immigration Practices and Procedures 33 at 45.
67. (1982) 1 Refuge 4.
68. Ministry of Employment and Immigration, A New Refugee Status Determination Process for Canada, by E. Ratushny (Ottawa: Ministry of Supply and Services, 1984) at 9.
69. Plaut, A New Refugee Status Determination Process for Canada, 42 at 45–46.
70. Robinson, A New Refugee Status Determination Process for Canada, 55 at 26.
71. Houle, A New Refugee Status Determination Process for Canada, 2 at 21n.
72. Interview (23 May 1995) Vancouver; J. Simalchik, “Somali Torture Survivors in Canada” (1992) 12 Refuge at 27.
73. Canadian Centre for Victims of Torture, Torture Victims: Medical and Legal Perspectives (Toronto: CCVT, 1990).
74. M. Foucault, The History of Sexuality, vol. 1 (Toronto: Random House, 1978) at 144.
75. “’Non-status' Refugee Loses Living Allowance from Federal Treasury” The [Toronto]Globe and Mail (26 October 1982) 9.
76. Ratushny, The [Toronto]Globe and Mail 58 at 10–11.
77. The [Toronto]Globe and Mail, at 10.
78. Plaut, The [Toronto]Globe and Mail 42 at 60–143.
79. Singh, The [Toronto]Globe and Mail 4.
80. Mandel, The [Toronto]Globe and Mail 3 at 241.
81. B. Jackman, “Canada's Refugee Crisis: Planned Mismanagement?” in A. Nash, ed., HHuman Rights and the Protection of Refugees Under International Law (Halifax: Institute for Research on Public Policy, 1988) at 321.
82. International Refugee Pressures, hHuman Rights and the Protection of Refugees Under International Law 33 at 48.
83. Controversy and Complexity, hHuman Rights and the Protection of Refugees Under International Law 49 at 88.
84. Creese, hHuman Rights and the Protection of Refugees Under International Law 7 at 133.
85. hHuman Rights and the Protection of Refugees Under International Law.
86. hHuman Rights and the Protection of Refugees Under International Law, at 13.
87. hHuman Rights and the Protection of Refugees Under International Law. at 21–22, 24.
88. Jackman, hHuman Rights and the Protection of Refugees Under International Law 70 at 323.
89. Mandel, hHuman Rights and the Protection of Refugees Under International Law 3 at 246.
90. Controversy and Complexity, hHuman Rights and the Protection of Refugees Under International Law 49 at 90.
91. Compare Mandel, Human Rights and the Protection of Refugees Under International Law, at 248.
92. Creese, Human Rights and the Protection of Refugees Under International Law 7 at 129.
93. Basok, Human Rights and the Protection of Refugees Under International Law 8 at 150.
94. See Creese, Human Rights and the Protection of Refugees Under International Law, at 135.
95. Controversy and Complexity, Human Rights and the Protection of Refugees Under International Law 49 at 87–88.
96. Compare J. Simon, “In the Place of the Parent: Risk Management and the Government of Campus Life” (1994) 3 Social and Legal Studies 15 at 17.
97. Ashenden, “In the Place of the Parent: Risk Management and the Government of Campus Life” 19.
98. Creese, “In the Place of the Parent: Risk Management and the Government of Campus Life”, at 124.
99. Basok, “In the Place of the Parent: Risk Management and the Government of Campus Life” 8.
100. Controversy and Complexity, “In the Place of the Parent: Risk Management and the Government of Campus Life” 49 at 82.
101. Jackman, “In the Place of the Parent: Risk Management and the Government of Campus Life” 70 at 322.
102. Canada, Citizenship and Immigration, Refugee and Humanitarian Immigration to Canada 1947–1995. Ottawa: Ministry of Supply and Services. 1995 at 11 hereinafter Refugee and Humanitarian Immigration to Canada
103. Canada, Refugee Affairs Division Policy and Program Development Branch, Refugee Perspectives: 1986–1987. Ottawa: Employment and Immigration Canada. 1986 at 50 hereinafter Refugee Perspectives
104. Refugee Perspectives: 1986–1987. at 51.
105. E.g. Refugee Perspectives: 1986–1987. at 50–51.
106. Refugee Perspectives: 1986–1987. This was the standard ‘magnet effect’ argument promulgated by senior Department of Immigration officials who, from the outset, resisted establishment of inland refugee determination. See Hathaway. Refugee Perspectives 46.
107. Refugee Perspectives, Refugee Perspectives: 1986–1987. 85 at 50.
108. International Refugee Pressures, Refugee Perspectives: 1986–1987. 33 at 51.
109. Refugee Perspectives, Refugee Perspectives: 1986–1987. 85 at 51.
110. International Refugee Pressures, Refugee Perspectives: 1986–1987 33 at 51.
111. Canada, Release, “Ministers Act to Curb Refugee Claims Abuse” (February 1987) at 1.
112. “Ministers Act to Curb Refugee Claims Abuse”, at 1–3.
113. “Ministers Act to Curb Refugee Claims Abuse”, [emphasis in original].
114. Bill C-55, An Act to amend the Immigration Act, 1976, House of Commons, First reading 5 May 1987.
115. Controversy and Complexity, An Act to amend the Immigration Act 49 at 95–96.
116. Refugee and Humanitarian Immigration to Canada, An Act to amend the Immigration Act 84.
117. In the first stage, eligibility was to be determined. In the second stage, credibility was to be decided following an oral hearing. If rejected at this point, the claimant could then appeal to the Federal Court. See Controversy and Complexity, An Act to amend the Immigration Act 49 at 90.
118. Hathaway, Controversy and Complexity 46 at 82.
119. Controversy and Complexity, Controversy and Complexity 49 at 90.
120. Bill C-84, An Act to amend the Immigration Act, 1976, House of Commons, First Reading 11 August 1987.
121. In practice, since passage of Bill C-84, several airlines have been fined for persons brought to Canada without proper documentation. See “Immigration Checks Yield $5.5 Million in Airline Fines” (21 February 1997) The Vancouver Sun Al.
122. Hathaway, Controversy and Complexity 46 at 81.
123. Mandel, Controversy and Complexity 3 at 254.
124. D. Stoffman, Pounding at the Gates (Toronto: Atkinson Charitable Foundation, 1992) at 20–23.
125. Mandel, Pounding at the Gates 3 at 254.
126. Hathaway, Pounding at the Gates 46 at 90n.
127. An Act to Amend the Immigration Act and Other Acts in Consequence Thereof, R.S.C. 1992.
128. Canada, Employment and Immigration, Refugee Affairs Branch, “Canada's Refugee Policy” (1992) 1 Dialogue 1.
129. “Canada's Refugee Policy”, at 1 [emphasis added].
130. “Plan to Ship Claimants Back to China Confirmed” The Vancouver Sun (25 March 1994) A4.
131. CCR, CCR-CIC Roundtable Meeting: Summary Report (Montreal: CCR, 1995) at 24.
132. Citizenship and Immigration Canada, Departmental Outlook on Program Expenditures and Priorities 1996–97 to 1998–99 (Ottawa: Ministry of Supply and Services, 1996) at 13.
133. “Appointments Urged on Merit, not Patronage” The Vancouver Sun (21 June 1994) A8
134. Canada, Highlights-Into the 21st Century: A Strategy for Immigration and Citizenship (Ottawa: Ministry of Supply and Services, 1994).
135. Canada, Immigration and Refugee Board, 1995 the Year in Review (Ottawa: Ministry of Supply and Services, 1995) at 1.
136. Basok, Immigration and Refugee Board, 8 at 157–58.
137. A. Macklin, “Refugee Women and the Imperative of Categories” (1995) 17 Human Rights Quarterly 213 at 215.
138. Canada, Department of Citizenship and Immigration, Refugee and Humanitarian Resettlement Program: In Canada (Ottawa: Ministry of Supply and Services, 1997).
139. “The IRB is Held Captive by the Very Interest Groups whose Appeals it Hears” The [Toronto] Globe and Mail (12 November 1994) D4.
140. Houle, The [Toronto] Globe and Mail 2 at 17n.
141. R. Lippert, “Rationalities and Refugee Resettlement” (1998) 27 Economy and Society 380.
142. F. Kharas, “Measuring Gross National Refugee Product: A Framework for the Classification of Refugee Source Countries” (1982) 1 Refuge 8.
143. 1 Refuge 8 [emphasis added].
144. 1 Refuge 8, at 10.
145. 1 Refuge 8, at 9.
146. Plaut, 1 Refuge 8 42 at 70–71 [emphasis in original].
147. Canada, Immigration and Refugee Board, The Documentation Centre: What it is and How it Works (Ottawa: Ministry of Supply and Services, 1995) at 3 [hereinafter Documentation Centre].
148. See M. Foucault, Discipline and Punish: The Birth of the Prison (New York: Random House, 1979) at 32–69.
149. Foucault, Discipline and Punish: The Birth of the Prison 124 at 200.
150. Mark Poster would undoubtedly refer to the centre as a ‘superpanopticon’. See M. Poster, The Mode of Information: Post-Structuralism and Social Context (Cambridge: Polity, 1990) at 93.
151. The Mode of Information: Post-Structuralism and Social Context 125.
152. Houle, The Mode of Information: Post-Structuralism and Social Context 2 at 11.
153. Law Reform Commission of Canada, The Determination of Refugee Status in Canada: A Review of the Procedure: Preliminary Study (Ottawa: Law Reform Commission of Canada, 1991) [hereinafter LRCC].
154. Five ‘requests for information’ chosen at random from within shelved binders during a visit to one of the centres were as follows: “Ghana: Information On an Abortive Coup D'Etat Attempt Which Took Place Around March 1992” (16 February 1993).
155. “Lebanon: Information on the Armenian Community” (30 April 1993)
156. “Honduras: Does a Honduran Citizen Lose Its Citizenship if He Enters the Military Services of Another Country (El Salvador)?” (29 March 1990).
157. “El Salvador: Information On the Role Played by Rene Francisco Guerra in the Government of El Salvador, 1977–1980)” (8 July 1992).
158. E.g., Canada, Immigration and Refugee Board, Somalia: Chronology of Events: June 1994-April 1995 (Ottawa: Documentation, Information and Research Branch, 1995).
159. Somalia: Chronology of Events: June 1994-April 1995 125.
160. Canada, Immigration and Refugee Board, Docviews: IRB Information Databases (Ottawa: Ministry of Supply and Services, 1995).
161. Docviews: IRB Information Databases 125.
162. Docviews: IRB Information Databases.
163. Docviews: IRB Information Databases.
164. Canada, Immigration and Refugee Board, Reflex: User Documentation (Ottawa: Legal Services, 1992).
165. Reflex: User Documentation 133.
166. Reflex: User Documentation.
167. Taken together, the centre's databases are similar to a “panoptic sort,” but they differ in that their targets are almost exclusively national actors, populations, and categories of persecution outside the West, rather than the personal information of individual consumers within. See O. Gandy, The Panoptic Sort: A Political Economy of Personal Information (Oxford: Westview, 1993) at 13.
168. The Panoptic Sort: A Political Economy of Personal Information 126.
169. J. Aitchison, The International Thesaurus of Refugee Terminology (Boston: M. Nijhoff, 1989) at i.
170. The International Thesaurus of Refugee Terminology, at ii.
171. The International Thesaurus of Refugee Terminology
172. E.g., Gilad, The International Thesaurus of Refugee Terminology 30 at 346.
173. See H. Adelman & S. Schmeidl, “Towards the Development of an Early Warning/Response Network” (1996) 15 Refuge 21.
174. W. Demars, “Waiting for Early Warning: Humanitarian Action after the Cold War” (1995) 8 The Journal of Refugee Studies 390.
175. A. Cottey, “Early Warning and Conflict Prevention” (1996) 15 Refuge 11.
176. J. Dedring, “Early Warning and the United Nations” (1994) 4 The Journal of Ethno-Development 98.
177. T. Gurr & B. Harff, Early Warning of Communal Conflict and Genocide: Linking Empirical Research to International Responses (Tokyo: UN University Press, 1996).
178. L. Gordenker, “Early Warning of Disastrous Population Movement” (1986) 20 International Migration Review 170.
179. Early Warning of Communal Conflict and Genocide: Linking Empirical Research to International Responses 125.
180. “The Development,” Early Warning of Communal Conflict and Genocide: Linking Empirical Research to International Responses 2 at 329.
181. Early Warning of Communal Conflict and Genocide: Linking Empirical Research to International Responses 125.
182. Early Warning of Communal Conflict and Genocide: Linking Empirical Research to International Responses.
183. The Documentation Centre, Early Warning of Communal Conflict and Genocide: Linking Empirical Research to International Responses 123 at 200–01.
184. E.g., Hathaway, Early Warning of Communal Conflict and Genocide: Linking Empirical Research to International Responses 46 at 10.
185. Foucault, Early Warning of Communal Conflict and Genocide: Linking Empirical Research to International Responses 124 at 201.
186. Early Warning of Communal Conflict and Genocide: Linking Empirical Research to International Responses, at 203.
187. Early Warning of Communal Conflict and Genocide: Linking Empirical Research to International Responses 125.
188. LRCC, Early Warning of Communal Conflict and Genocide: Linking Empirical Research to International Responses 129 at 69.
189. Early Warning of Communal Conflict and Genocide: Linking Empirical Research to International Responses 125.
190. LRCC, Early Warning of Communal Conflict and Genocide: Linking Empirical Research to International Responses 129.
191. Early Warning of Communal Conflict and Genocide: Linking Empirical Research to International Responses 133.
192. M. Marrus, The Unwanted: European Refugees in the Twentieth Century (New York: Oxford University Press, 1985).
193. See “The Development,” The Unwanted: European Refugees in the Twentieth Century 2.
194. S. Rusu, “Relief Web: Mandates and Objectives” (1996) 15 Refuge 18.
195. M. Foucault, Power/Knowledge: Selected Interviews and Other Interviews 1972–1977 (New York: Pantheon, 1980) at 71.
196. Original citation in D. Gregory, Geographical Imaginations (Cambridge: Blackwell, 1994) at 29.
197. E.g., E. Said, Culture and Imperialism (New York: Vintage, 1993) at 9–10.
198. See also H. Dreyfus & P. Rabinow, Michel Foucault: Beyond Structuralism and Hermeneutics, 2d ed. (Chicago: University of Chicago Press, 1983) at 191.
199. See I. Hacking, The Taming of Chance (New York: Cambridge University Press, 1990) at 7n.