Published in 16.3, by Donna Seto

An acquaintance of mine once asked where I had parked my Mercedes. My initial response was that I didn’t own a Mercedes or a car for that matter. He responded with utter confusion, “Aren’t you Chinese? I thought all the Chinese in Vancouver drove a Mercedes.” Although I was initially taken aback by his comment, his accusation concerning the socio-economic standing of the Chinese in Vancouver forced me to think about how ethnic groups are constructed in the backdrop of Canadian immigration. Is he right? Are all the Chinese driving luxury cars? If so, why am I still riding public transit?

Canada, with its legal recognition of minority rights and two official languages, is internationally recognized as a country where immigration policies have worked, at least in theory. In 1982, Prime Minister Pierre Elliot Trudeau ushered in the Charter of Rights and Freedoms and with it historical prejudices of racial discrimination were supposedly corrected. Along with the Charter, the Multiculturalism Act was passed in 1988 thus upholding the idea that multiculturalism is very much a part of Canadian society. In 2011, one can purchase a “Japadog” in downtown Vancouver, which one might suggest is a symbol of cultural intermixing and multiculturalism in Canada. However, on a more skeptical note, one only has to scratch the surface to review how our current immigration policy has maintained its role as a gatekeeper and protector of sovereignty, territory, and national identity.

The comment my acquaintance made about the socio-economic success of the Chinese in Canada came only two years after the arrest and detention of the Chinese migrants who arrived off the coast of British Columbia. During the summer of 1999, four boats containing a total of 599 asylum seekers from the Fujian province of China arrived in Esquimalt, B.C. Most of the migrants were fleeing China on the grounds of political and religious persecution and would have been considered “genuine” refugees under international law. Migrants on the first two boats were treated in a courteous fashion as immigration officials quickly conducted their interviews and processed their claims for refugee status. Most asylum seekers from this group were released and requested to appear in court on the date of their refugee hearing. However, the two remaining boats that would arrive in B.C. later that summer did not receive the same welcoming reception. Unlike their counterparts, the majority of the asylum seekers on the remaining two boats were interrogated and held in custody as they awaited the decision of their refugee claims.

Unlike previous refugee claimants, the Chinese migrants who were kept in detention were denied the basic right to asylum. The United Nations Convention and Protocol Relating to the Status of Refugees (Refugee Convention), which Canada is a signatory country of, states that individuals seeking protection should be granted the right to do so. The Refugee Convention defines a refugee as someone “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion,” is outside the country of his or her nationality. Embedded in the Refugee Convention is a set of minimum standards in which signatory countries are obligated to abide by. It defines a refugee as someone fleeing from political and racial persecution and suggests that recipient states need to ensure such individuals are guaranteed their basic rights. This set of legal obligations includes the asylum seeker’s right to access the courts, primary education, work, and to obtain proper documentation that can be used as evidence when applying for refugee status. However, the Chinese migrants were kept in detention and denied their rights to a fair hearing, communication with their counsel, and the ability to obtain documents from overseas. No doubt, this inhibited their preparation for an adequate defense. Many of the migrants were fleeing due to religious and political reasons, which clearly falls under the United Nation’s definition of a refugee.

Aside from defining whom a refugee is, the Refugee Convention also holds principles suggesting that signatory states should not discriminate, penalize, or send asylum seekers to places where they may be subject to danger. By the fall of 2000, the Canadian government had sent more than 270 of the Fujian asylum seekers back to China whereas another 101 were subject to punishment as they remained in B.C. jails. Victor Wong, a member of the Canadian Chinese National Council, commented that “[t]he government of Canada wanted to make a statement with very high-profile deportations. But after a year or more in jail some of them went crazy and we had to get psychiatric care for them.” Article 33 of the Refugee Convention, the principle of non-refoulement, is fundamental to the treatment of asylum seekers. It suggests that states shall not expel or return a refugee against his or her will, in any manner whatsoever, to a territory where he or she fears threats to life or freedom. Of the 599 asylum seekers who arrived in B.C. in 1999, 444 were sent back to China. Back in China, a country which still requires its residents to acquire permission to leave, the migrants were made to pay a fine and/or were sent to administrative detention in labour camps.

Although the Chinese case may have faded from recent memory, the recent arrival of asylum seekers from Sri Lanka re-invigorated similar reactions and fears. In October 2009, a boat containing 76 Tamil refugees arrived off the coast of Vancouver Island. Similar to the latter two boats in the Chinese case, this boat received a cold and alienating reception. Containing mostly men on board, individuals on the MV Ocean Lady were detained and investigated for their possible links to the Liberation Tigers of Tamil Eelam (the LTTE) or the Tamil Tigers. The MV Ocean Lady was followed by another boat, the MV Sun Sea, which carried 492 Tamil asylum seekers. As a way to deal with the arrival of unauthorized boats, the federal government of Canada introduced Bill C-11: The Balanced Refugee Reform Act in the summer of 2010. The new legislation aimed to support the underlying principles of Canada’s immigration policy by ensuring that Canada only accepts “genuine” refugee claimants. So-called “bogus” refugee claimants, who are supposedly “abusing” Canada’s compassion and generosity, would be subject to further investigation and possible deportation.

Rather than contextualizing their cases under a discussion of human rights, the national discourse surrounding the arrival of the MV Ocean Lady and MV Sun Sea echoed similar negative sentiments that the Chinese received in 1999. The asylum seekers, many of them fleeing from the civil war in Sri Lanka, were renamed under a language that referred to them as “illegals,” “queue jumpers,” “aliens,” “human cargo,” or “boat people.” Captains on the boats were thought to have links with existing criminal networks of human smuggling. This association that connected the asylum seekers with crime was reinforced with the publication of the monetary amounts individuals had “paid” to get onto these boats. The media advertised that the so-called asylum seekers had paid to get onto the old boats and made the treacherous journey across the Pacific Ocean. More importantly, as with our Australian counterparts who have received the brunt of boats from Sri Lanka, the arrival of unauthorized boats was renamed a “threat” to national security and sovereignty.

Howard Adelman, Canadian philosopher and former university lecturer, notes that the recent discourse on immigration has been coupled with questions related to national (in)security in the post-9/11 climate. Although the 19 men who attacked New York and Washington on September 11, 2001 entered the US legally, Adelman argues that the problem of national insecurity has reinforced existing fears of threats against the homeland. Since it was believed that several of the 9/11 “terrorists” had entered the United States through Canada, it has become a common perception that Canadian immigration policy needs to be fixed. With pressure from our southerly neighbours, Canada has participated in a number of strategies that restrict the entrance of unauthorized arrivals. Since 2002, Canada has signed a number of agreements with the United States to prevent the arrival of unauthorized migrants. Such agreements include the imposition of visa requirements on travelers from specific countries, pre-screening aboard to interdict undocumented arrivals, limiting the number of refugee arrivals by implementing the “safe third country” mechanism, and the use of advanced passenger information lists. The implementation of such control mechanisms has been advised through partnership with the United States as a way to ensure national security without resorting to the current Australian system that detains all claimants who wish to enter unlawfully.

Canada is not alone in its ill treatment of asylum seekers. In many ways, we haven’t looked too bad compared to the rest of the industrialized West. Since the Libyan crisis started in February 2011, Europe has seen an influx of migrants and political refugees attempting to escape the region. Many of them travel by boat across the Mediterranean Sea and arrive in Italy, Malta, and Greece. However, many of those who attempt to make the journey do not make it or are turned back in the water. For instance, on April 6, 2011, passengers on a boat carrying 200 people, including children, died as their boat sank in Maltese waters. Another boat carrying 72 people was found by an Italian military helicopter. Although the boat was in distress, the Italians on the helicopter did not offer any assistance. They watched as the boat drifted in the water. It was two weeks before the boat was pushed back into Libyan water. Only 9 out of the 72 who were on that boat survived. Boats carrying migrants are actively prevented from reaching European shores, making the journey into Europe nearly impossible.

In a similar fashion, Australia has been a culprit in violating their membership to the Refugee Convention. Since 1992, Australia has set in place a policy of mandatory detention. Unauthorized arrivals, whether they arrive via sea or air, are detained in a number of Australia’s detention centre. Unauthorized arrivals are asked to wait, often indefinitely, for their refugee claims to be processed. Often the process takes over a year, where the current Labor government has frozen the acceptance of any refugee claims made by claimants from Sri Lanka and Afghanistan. Any application for refugee status made by an asylum seeker from Sri Lanka or Afghanistan would be put on hold for six to nine months before being processed.

Despite the freeze on asylum applications, boats containing refugees from Sri Lanka and Afghanistan continued to arrive in Australian waters. In 2011, the federal government attempted to pass the controversial Malaysia Deal as an attempt to “solve” the refugee issue. The deal was meant to help with the backlog of asylum seekers who were waiting for their claims to be processed. Many of these asylum seekers are held in detention indefinitely without any knowledge of the process or status of their refugee applications. Several of these detention centres are situated in isolated areas such as off-shore on an island or in the Australian desert. As a result, many of the detention centres were subject to overcrowding where its residents often showed their frustration through self-harm, physical resistance, hunger strikes, and even suicide. If passed, the Malaysia Deal would see the transfer of 800 asylum seekers currently housed in Australian detention centres to Malaysia in exchange for 4,000 “genuine” refugees who have been granted their status by the United Nations. The controversial issue behind the Malaysia Deal is that Malaysia is not a signatory state to the Refugee Convention and it is unclear if those asylum seekers sent there will be treated adequately. The Malaysia Deal has been since rejected by the High Court of Australia as a violation of the 1958 Migration Act.

In 2010, Immigration Canada reported to having accepted 280,681 new immigrants. Only about 9 percent, or 24,696, were accepted as refugees through the United Nations humanitarian program. Of the 24,696 accepted refugees, 9,041 accepted individuals applied for refugee status while they were living in Canada.10 The fact that boat arrivals, which only occur about once every decade in Canada, cause such public concern is alarming. The reaction to the Fujian-Chinese in 1999 and the Tamils in 2009-2010 reminds us of historical examples of racial exploitation and alienation. For instance, such instances remind us of the treatment of the Chinese in Canada when the Head Tax and the Exclusion Act was passed at the turn of the last century. It is also difficult to forget the treatment and internment of the Japanese Canadians during the Second World War. Despite Canada’s acceptance of the Refugee Convention, which states that countries should be “hospitable” to its guests, the treatment of recent unauthorized arrivals suggests otherwise. It is clear from the recent examples that not everyone is welcome under Canada’s humanitarian wing.

In 1951, Hannah Arendt published The Origins of Totalitarianism,11 which explains the limitations human rights regimes had in an era of totalitarian regimes. Arendt wrote about her concerns regarding our trust in international institutions, such as human rights regimes and their promise to protect the civil liberties of people worldwide. Although Arendt was criticizing the effectiveness of post-World War I treaties that protected the rights of minorities, her analysis can be applied to the treatment of asylum seekers in the post-9/11 world. When it came down to having access to the basic rights supposedly guaranteed by international law, Arendt–who was once a refugee of the Holocaust–warned that one has to first have the “right to have rights.” This reference to the basic right to possess human rights, for refugees to be treated as “human,” comes down to citizenship and membership to countries that are able to guarantee such rights. Refugees, as Arendt suggests, exist in a state of legal limbo where they are trapped in a no-man’s-land of non-belonging. Since asylum seekers are rejected by their state of origin and yet to be accepted into a new state, they are void of any access to the basic rights. The philosophical prescription offered by Arendt leaves us in a precarious space where those in power continue to define who belongs and who does not.

Except for a few exceptions, Canada’s immigration policy has been relatively hospitable and welcoming. After all, as my acquaintance once pointed out, Canada is a place where the Chinese, a once socially-marginalized ethnic group, are now driving around in luxury cars.