8/16/2010

Asian Boat People: A Canadian Crisis? Part 1

Part one of a term paper I wrote in the spring on Canadian refugee policy and political discourses around "boat people" refugees... relevant to the current issue of Tamil refugees and the reaction to their arrival. Hopefully this may provide some context for anyone unfamiliar with the politics of refugee acceptance in Canada. Also, any feedback is completely welcome. This is a paper I have some affection for and wouldn't mind working into something more publishable.

Introduction

As a 12 year old boy in August of 1999, my friends and I found our normal space of adventure in the hills and scrub outside CFB Esquimalt filled with activity. Barbed wire rose up around the military gym and under the watchful gaze of heavily armed sentries, emaciated figures walked around the edges of the building. We wondered whether or not they were criminals, but then, why were they not in the normal jail? At home, my parents told us that they were refugees fleeing their own country of China who had tried to illegally enter Canada and been caught. Meanwhile, in the Canadian press, the "Chinese Boat People", as they came to be called, were being portrayed as invaders and interlopers. In the year that followed of proceedings and much hand-wringing in Ottawa, a minority of the boat people were recognized as genuine refugees and the rest were deported back to China.

That some of the boat people were recognized as genuine refugees is crucial. A reactionary discourse sprang up in response to Canada's relatively lenient policy, exhibited from everyone from editorialists to cabinet ministers, which framed this category of refugees who had evaded the deflectionary measures as "gatecrashers" or "bogus claimants"1. The reactionary rhetoric that is cast into the public sphere seeks to disqualify refugees who express their agency by avoiding the waiting-lines and systemic barriers that prevent their access to the Canadian refugee system and enter the country illegally. The aim of this paper is to show how “interlopers” like the Chinese Boat People reveal and problematize the discourse of governmentality in which refugee claimants who evade the state's deflectionary measures are framed as bogus or “economic migrants”. Audrey Macklin(2004) refers to this discourse as “the erosion of the idea that people who seek asylum may actually be refugees” .

This paper was inspired by reading Laurence Kirmayer's critical study of Canadian Immigration and Refugee Boards “Failures of Imagination: the refugee's narrative in psychiatry.” (2003) In that study, Kirmayer shows how refugee boards fail in their efforts to grasp the trauma that displaced peoples face and work to minimize and discredit the narratives of refugee applicants. Building on that study, another team of McGill researchers made a comprehensive study of how the Immigration and Refugee Boards seek to undermine the claims of refugees (Rousseau et al 2002) (Rousseau and Foxen 2005). According to Citizenship and Immigration Canada, 58% of refugee claims are unfounded2, a claim that the work of the McGill researchers casts serious doubt on. I argue that the efforts of the system to disqualify and undermine the claims of refugees is not only, as the authors of these studies claim, simply a result of poor intercultural skills and difficulty dealing with trauma, but the result of a discourse of rejection which seeks to disqualify certain kinds of refugees playing itself out on a bureaucratic level.

The Making of a “Model Refugee”

This paper draws heavily on Foucault's concept of governmentality, as a “practice of politics that acts on action”, in which certain forms of knowledge that aim to elicit certain skills and attitudes are promoted towards a population in order to “achieve effects beneficial for an individual, a collectivity and a state” (Rudnyckyj 2004). Governmentality is a key concept in the study of refugees, because it is a force that not only attempts to shape the behavior of refugees but of all the actors, including bureaucrats. Further on in this paper, I will mention in brief several ways in which discourses of governmentality are created and maintained. Those are discursive crises and institutional fields. Discursive crises are moments of crisis in which the state is able to use the discourse to expand and legitimize its power (Hiers and Greenberg 2002). Institutional fields simply refer to the breadth in which a discourse can be transmitted, in this case, how the discourse of refugee acceptance is transmitted from the highest levels of Canadian government, through the bureaucracy, mass media and citizenry (Hardy and Philips 1999).

In Discipline and Punish, Foucault discusses the “docile body” and the “model citizen”, a passive-receptive state of acceptance of authority which governments would prefer to shape their citizens towards (Foucault 1984). Foucault argues that in the 18th Century, the docile bodies that made up modern armies were not just “an ever-threatening sword, but also [because it was] a technique and a body of knowledge that could project their schema over the social body” (Foucault 1984). I argue that the Canadian state seeks to shape it's own “model refugee”, a docile body which is passively chosen and implanted into a process, not of military training, but of refugee screening. In this process, the State has the power to limit the number of refugees whom it accepts each year and the power to pick refugees based on criteria other than the mere fact of their displacement. Following Foucault's example, I will attempt to demonstrate the historical evolution of the model refugee and briefly outline how the Boat People incidents problematized this idea of the model refugee.

The model refugee is a modern, post-war invention. At the 1951 United Nations Convention Relating to the Status of Refugees, the United Nations agreed upon definitions for refugeehood and set-up provisions for “international co-operation in the field of asylum and resettlement”3. A refugee was defined as a person who, due to a “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 nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.” Beyond such abstract measures in international law, the development of refugees as a group began to only emerge further throughout the following 60 years. As formal citizenship and border control developed to great lengths in Western countries at the second half of the 20th Century, displaced persons found themselves increasingly channeled through formal relocation programs and camps, rather than simply crossing a border and starting a new life. This quickly became the “traditional” view of a model refugee: waiting in refugee camps, usually along the border with the country from which they fled, stateless, agency-less, and desperate for rescue.

In 1976, Canada created the Immigration and Refugee Act, which for the first time delineated between different kinds of migrants to Canada, following the UN Convention's definition of refugees. Under the Immigration and Refugee Act, now called the Immigration and Refugee Protection Act of 2001, refugees can apply for asylum to Canadian visa officers abroad. More typically however, this process is facilitated by humanitarian organizations, host organizations in Canada and the United Nations High Commission on Refugees. Ultimately, refugees are chosen by visa officers from the pool of candidates provided by the UNHCR, a strictly limited resource.

In a recent press release, announcing immigration reforms, Jason Kenney, the Minister for Citizenship and Immigration, stressed the need to return to this traditional mode of refugee selection and promised $54 million for relocation programs. Kenney announced that, “we know that we can’t help everyone. But what we can do is introduce balanced reforms to our refugee system that will allow us to expand our refugee resettlement programs to provide protection to more people4.” In typical years, Canada accepts around 10 000 to 12 000 refugees through formal relocation programs. By contrast, in 2008, there were 37 000 asylum claims filed inside Canada's borders5. Even with a highly questionable acceptance rate of 58%, refugees are far more likely to succeed in a claim by going to the country they want to relocate to, rather than waiting in a camp.

Nonetheless, governments would prefer to do the selection themselves, and critics of “gatecrashers” often point to the programs for selection and sponsorship of refugees (Millbank 1999). In reality, these programs are inconsequential. Refugees in these camps will simply become illegal migrants, and have their claims undermined by their illegality rather than waiting forever. With a vast global population of refugees, tiny programs, adopted by far too few countries and that strip refugees of their agency, will do next to nothing to stem the tide of illegal migration.

The Context of Chinese and Other Boat Migrants' Refugee Claims

Canada is situated geographically in the world in a rare position. It possesses only two land borders, both with the United States, and bordering territorial waters with France (St. Pierre and Miquelon) and Denmark (Greenland). None of these countries are known for producing refugees in any number (with the exception of American draft dodgers during the Vietnam War), and so it might seem odd that so many refugees would attempt to flee to Canada. But despite the characterization of the process of "becoming" a refugee that necessitates a lack of agency, refugees follow a variety of incentives that lead them to Canada.

Typically, countries bordering the kind of nation-states that produce the most refugees contain even further hardships for refugees who are considering fleeing to them. For example, one can easily see in the media images of refugees from Burma living in Thailand who are mostly restricted to refugee camps and are denied access to the ordinary venues of Thai life. In 2008, while traveling in Southern China, I met Tibetan dissidents had been extradited to China after trying to flee to Vietnam, where they were briefly detained. Vietnam and other states bordering China are wary of offending their powerful neighbor.

Often refugees have family or ethnic connections within Canada which further incentivize them to choose Canada. This is to say, the pejorative term "economic migrants"6 is in many ways a fair characterization of the vast majority of refugee claimants in Canada. Were they merely affected by "push"-factors and lacked any agency, they would simply go to the closest place outside of the reach of whatever factors had caused their displacement. Of course, one can hardly reasonably expect that a displaced person would prefer a permanent state of displacement in a refugee camp or as a non-citizen, over the generous refugee immigration programs of countries such as Canada. For refugees, Canada's welfare system, equal rights for non-citizens, and safety from economic or political violence make it a viable place of resettlement. It is a viable new home.

The Chinese Boat People's visit was just one of many such migrant entries directly into Canada in the 1990s that incited a public discourse about refugees from China, India and other Asian countries who arrived in Canada illegally and applied for refugee status. By simply arriving on Canadian shores, they were able to avoid the pre-screening measures of the overseas Customs and Immigration Canada, which manages refugee applications in Canadian embassies and consulates (under the current ministry system the responsible departments are called Citizenship and Immigration and Canadian Border Services Agency). Their ability to do so stemmed from the 1985 Supreme Court Singh Decision in which the court ruled that non-citizens were entitled to the same rights as Canadians if they were on Canadian soil, including a fair tribunal on their immigration status and the right of appeal to the legal system (Kernerman 2008). Singh was a landmark decision in Canadian history and sets Canada apart from most other countries, in which it is unusual for non-citizens to have all the same rights as citizens. It also led to Canada having the largest per capita number of refugee applicants, unlike most other Western states that deploy much stronger "deflectionary" measures to prevent "gatecrashers" from ever entering refugee tribunal systems (Gallagher 2003).

Ultimately, only a minority of the Chinese Boat People's claims were successful. The rest were deported back to China and the story wasn't followed from there, so there isn't really any opportunity to find out how the migrants were treated upon their return. Illegal Chinese migrants are in an especially precarious position, because of the hostile attitude their own government takes to those leaving China illegally. In general, Canada shares other countries' distrust for China's treatment of its own citizens.

The Chinese Boat People's arrival was hardly an isolated incident. The Singh Decision itself looked at the case of Sikh political dissidents who entered Canada's East Coast illegally by boat. An average of around 30,000 people make asylum claims in Canada each year, of which between 40% and 50% are accepted. In this last year, Canadians likely heard of Tamil Sri Lankan boat people also being detained after their boat was discovered off the West Coast. It would be expected that they would have a much more clear-cut set of refugee claims than Chinese boat people, being as they were fleeing the end of a decade-long civil war in which their side lost, and where 300,000 Tamils were still being held in interment camps. But nonetheless, they were treated with as much or more suspicion and contempt for their illegal entry than the Chinese Boat People of 1999. The Minister of Citizenship and Immigrantion, Jason Kenney, considered it to be an opportune time to lay out the goals of reform for the immigration system which later evolved into a reform package announced March 29th 2010: “We don't want to develop a reputation of having a two-tier immigration system - one tier for legal, law-abiding immigrants who patiently wait to come to the country, and a second tier who seek to come through the back door, typically through the asylum system, we need to do a much better job of shutting the back door of immigration for those who seek to abuse that asylum system."

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Asian Boat People: A Canadian Crisis? Part 2

Part two of a term paper I wrote in the spring on Canadian refugee policy and political discourses around "boat people" refugees... relevant to the current issue of Tamil refugees and the reaction to their arrival. Hopefully this may provide some context for anyone unfamiliar with the politics of refugee acceptance in Canada. Also, any feedback is completely welcome. This is a paper I have some affection for and wouldn't mind working into something more publishable.

The Discourse of Sovereignty and Humanitarianism

Refugee policy in Canada is caught between two of the most important legitimizing discourses of the modern liberal state: humanitarianism and sovereignty (Hardy and Phillips 1999). The humanitarianism discourse plays up the importance of accepting refugees, as peoples stripped of their agency, and acts to restore their fundamental human rights. The sovereignty discourse fears the impact of accepting too many refugees or the “wrong kind” of refugees, and also fears the delegitimization of citizenship if it becomes too easy to gain. Humanitarianism is also used to promote the tightening of the refugee system in that it will make it easier for the “right kind of refugee” (Hardy and Philips 1999:8). However, humanitarian discourses are typically employed to argue against restrictions placed on asylum seekers. Harald Bauder (2008) shows how humanitarian discourses are used to defend the boat people and other refugees by arguing for a view of refugee acceptance that goes beyond the traditional “Other” waiting to be chosen.

Harald Bauder (2008 cites a conception of humanitarianism which is heavily grounded in identity that defines the the nation as “compassionate and caring”, which is established in media reporting on contested claims. He notes that rejections of the Chinese Boat People were legitimized by their representations in the Canadian media as “racialized, illegal and non-belonging” placed in stark contrast to the legitimate “regular” selection process of the choosing of the “Other”, worthy of the nation's kindness (Bauder 2008). Cynthia Hardy and Nelson Philips discuss in detail the connection of the humanitarian and sovereignty discourse to paternalism and empowerment. Refugees are helpless, subordinate to government or social work professionals, needing to be saved or chosen, unable to participate in economic or political activity. Or alternatively, refugees are empowered, agency-possessing and capable of contributing in political and economic ways. But the same positives of the empowered refugee are also the source of suspicion for those who have pre-conceived notions of the “helpless refugee”, an autonomous an independent refugee is not a refugee at all, but a “fraudulent and abusive” migrant (Hardy and Philips 1999).
The Makings of a Discursive Crisis

Sean Hiers and Joshua Greenberg's framing of the 1999 Boat People "crisis", not as a real crisis in any sense of an institutional breakdown, but as an imagined "discursive crisis”. A discursive crisis is another technique through which governmentality is applied. Such a crisis represents “discursive moments which signify the conditions under which decisive interventions can be made and it is these narrated representations of crises which are the objects of state response” (Hiers and Greenberg 2002). Cynthia Hardy, Nelson Philips, Harald Bauder, Joshua Greenberg, and Sean Hiers observe that the Canadian media responds to refugees as a rupture in the normal business of refugee policy. By evading deflectionary measures and coming directly to Canada, they challenge the fundamental assumptions that the Canadian public held about refugees: the countries that they came from, their supposed lack of agency and their rights in Canada. But by looking at this “rupture” as not an institutional breakdown in the sense of a true crisis, but as a purposeful exertion of power by the state, the same forces which a discursive crisis attempts to obscure can also be revealed.

The Chinese Boat People arrived in Canada in the Summer of 1999, four ships caught by the Coast Guard off the British Columbia coast, but within Canadian territorial waters. The migrants were incarcerated in several locations across the province, on military bases and at a renovated prison in Prince George. Very quickly, a torrent of negative media began to focus around the migrants, shaping their role as a threat to first Canadians well-being and the fairness of the refugees waiting to be chosen (Ferguson 2000). Reporting on the refugees arrival became quickly fixated on the “risk” to Canadian society and sovereignty being posed by such Boat Peoples, whether it was disease, terrorism or simply a drain on limited resources (Hiers and Ferguson 2002). They were also fixed into social parameters of illegality and commodification, “human cargo”, “shipload”, “boatload” (Hiers and Ferguson 2002).

Many of these initial claims were quietly problematized during the hearing process, when many, though of course only a minority, of the migrants were granted refugee status. One of the refugees, Lin Juen Li, presented identification papers and a certificate for forced abortion, generally sufficient documentation on which to base a refugee claim, though she was still incarcerated and not granted the normal freedom for refugee applicants, on the basis of her already illegal entry (Hiers and Greenberg 2002).

Of course, it was not the truth of refugee claims that was interesting to the media. What was more significant and hence the tie-in to the discursive crisis, was not the problematization of the refugees, but of the refugee system. Soon after the arrival of the first boat, newspapers were mocking the “absurdity” of an immigration law that allows people to “bypass the immigration queue and claim legal entitlement to refugee status” (Ferguson 2000). Of course, that is exactly what asylum constitutes. Politicians were engaging in the debate arguing for “reforms” to the immigration system that would make it harder to bypass the traditional refugee process. Despite the average 30,000 asylum claims that are filed in Canada each year, a few hundred Fujianese migrants coming the unlikely way by boat had succeeded in creating political capital for greater strengthening of the measures which would keep asylum seekers from making claims in Canada.

Deflection and Rejection at the Heart of the Refugee Discourse

The key set of tools that Canadian policy makers have to limit refugees and attempt to return to a controlled state of traditional refugee resettlement selection are called deflectionary measures. In 2003, the Fraser Institute, Canada's largest conservative think-tank, published a paper that has since been echoed in many of the policy debates, arguing for a "realist" approach to refugee deflection (Gallagher 2003). By "realist", Gallagher is actually referring to an approach to refugee policy that favors sovereignty over humanitarian values. Just as with the media's response to the Boat People, the framing of the issue centres around delegitimizing refugee claims by appealing to concern for the "rule of law" and insinuating that "gatecrashers" actually disadvantage a backlog of legitimate claims. For believers of the deflectionary approach, to evade deflection is itself a delegitimization of the reasons for becoming migrants.

Among his many recommendations about strengthening deflectionary measures themselves, Gallagher argued that Parliament should find ways to overrule the Singh decision and deport all of the gatecrashers. Within the broader discourse, the Singh case had represented the court's extreme humanitarian position, which in turn influenced consecutive governments to respond by using deflectionary measures to strengthen Canada's sovereignty. What were these deflectionary measures? Canada was following tardily behind the lead of other Western countries at the time, notably those in Western Europe. Western Europe, unlike Canada, is geographical well-situated to receive many migrants, with it's greater proximity to the large refugee producing zones in Africa, the Middle East and Eastern Europe.

The most effective deflectionary measures currently employed by the government centre around visa restrictions and the safe third-country rule. The safe third country rule states that a refugee cannot arrive in one "safe country", transit to another and then claim refugee status there. It is primarily an invention of European policy makers as a response to the great numbers of refugees attempting to claim status in England, France and Germany after first arriving in one of the countries on their border, particularly Italy and Spain. If overly simplistic, the rule attempts to narrowly define a refugee as someone incapable of having agency, by limiting them to the very first "safe third country" which they can arrive in. In 2004, Canada and the United States entered into a safe-third country agreement, echoing the trends in Europe and the recommendations of right wing policy groups like the Fraser Institute. Audrey Macklin writes of the U.S.-Canada safe-third country treaty: “Will it radically change the numbers of refugees in Canada? Probably not. They will simply be known by another name: illegals” (Macklin 2004).

Visa regulations are far more powerful, by allowing the government to more strongly control the number of refugees from a particular country. In the late 1990s, the Canada quickly became a target for refugees belonging to the Roma minority, a persecuted group in several Eastern European countries, particularly Hungary and the Czech Republic. In face of an overwhelming number of claims, most of which were decided in favor of the Roma refugees, Canada quickly placed stringent visa restrictions on both countries and Roma who wished to flee to Canada found that they needed to now apply at the Canadian embassy and fit their claims within the confines of refugee acceptance quotas and a higher burden of proof. Tied to the idea of visa regulations is the notion that some countries are safe and others are dangerous. This notion is clearly expressed in the latest set of reforms to immigration proposed by Jason Kenney. They favor the creation of “safe country lists”1, essentially, a list of places which the Canadian government will consider to be incapable of creating refugees2. While a notional application of “safe country” classifications are observed in previous studies of the IRB (Rousseau et. al 2002)(Kirmayer 2003), this would codify the process within the adjudication process.

The discourses of legal/illegal and migrant/refugee are at the heart of deflectionary measures. If asylum seekers are also labelled as “illegal migrants”, which frankly they are, than the legality of their refugee claim and the illegality of their entry form a deep contradiction for state actors to deal with (Macklin 2004). Instead of addressing this issue and focusing on the refugee claim, deflection seeks to focus on the illegality of entry. Visas, border screening, safe-third country treaties all seek turn the agency-expressing asylum seeker into an illegal migrant (Macklin 2004). And they succeed handily. These measures birth the smugglers who brought the Boat People to Canada, charging exorbitant fees and often tied to trafficking in slave labor and forced prostitution.
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Asian Boat People: A Canadian Crisis? Part 3

Part three of a term paper I wrote in the spring on Canadian refugee policy and political discourses around "boat people" refugees... relevant to the current issue of Tamil refugees and the reaction to their arrival. Hopefully this may provide some context for anyone unfamiliar with the politics of refugee acceptance in Canada. Also, any feedback is completely welcome. This is a paper I have some affection for and wouldn't mind working into something more publishable.

The Institutional Field of Canadian Refugee Policy

Cynthia Hardy and Nelson Phillips describe how social discourses are absorbed into "institutional fields", the discursive structures that encompass not only societal discourses, but also extend to include policy making apparatuses and enforcement structures (Hardy and Phillips 1999). Institutional fields extend discourses between political spheres, public media discussions into bureaucratically entrenched policy discourses, which in my view connects them to Foucault's idea of governmentality. In democratic, media-saturated political environments like Canada, institutional fields are the paths through which discourses permeate every level of our society. Governmentality is effected at levels of both policy and practice. Institutional barriers to acceptance can be interpreted as either forms of power be directly effected by institutions, or we can look at institutions themselves in the broader contexts of discourses which effect them.

The Immigration and Refugee Boards are a perfect example of an institution that is deeply affected and transformed by the institutional field that it sits within. Essentially, the IRB is an institution whose rules are all governed by humanitarian principles, but acts as if it was governed by principles of sovereignty which are invisible in its written policies. For this reason, it drew sharp criticism from the Montreal researchers who argued that its cultural biases were preventing it from fulfilling its legally mandated objectives: to provide fair and non-confrontational adjudications of refugee claims (Rousseau et. al 2002). The tenor of refugee adjudication became out of line with its supposedly humanitarian values, and the ground level systems for dealing with refugee claims became obsessed with weeding out "gatecrashers" and "economic migrants" (Rousseau et. al 2002). The Immigration and Refugee Board (IRB) had transformed from its mandate as a non-confrontational body to a confrontational court, where the legal rights of claimants were undermined by the cultural differences of IRB members, who sought to use a variety of tactics to test and attack the refugees' narratives: primarily finding inconsistencies and treating them as lies (Rousseau et al 2002)(Kirmayer 2002).

All of these changes formed part of the growing "Myth of the Lying Refugee", that was previously only easily observed in the media, a framing process by which refugee applicants claims were subjected to an outrageous set of verifications and tested for complete consistency over the course of the written and oral interviews that constitute the refugee adjudication process (Rousseau and Foxen 2006). But why did the boards begin, more and more, to turn the refugee hearings into a confrontational space? Such deep twisting of the fundamental values of a institution can not be explained only as the results of the poor intercultural skills of its participants, but needs to be looked at in the context of the institutional field which has already condemned the people it is evaluating as illegals. Furthermore, it need not be the only voice of humanitarianism in the process, because the courts will always serve as the final appeal for refugee applicants. If it is not the actual arbitrator of the claims, than it fits well within the state's attempts to deflect claims. I would argue that these efforts, on a bureaucratic level, are reflections of the greater efforts to deflect claims and discourage “the wrong kind” of refugee claims.

Conclusion

States would prefer to have “ideal refugees” which they could choose, control the numbers of acceptances, and fairly share the burden with other capable nations. But such a conditions do not exist in this world. Stateless people are stateless because states generally aren't interested in taking on new citizens. Canada's contribution to traditional refugee acceptance is the second most per-capita of any developed country (Millbank 1999), and it still falls dramatically short of the what is necessary. Until states work together to deal with the problems of displaced people, asylum claims will continue to be the mainstream way for refugees to attempt to mitigate their situation.

In this paper, I've attempted to problematize the traditional concept of the refugee and show how the state responds to the problem of global statelessness by attempting to deflect entry and close down borders. In this context, Asian boat people, whether Indian, Sri Lanka, Chinese or otherwise, avoid the measures of deflection employed by states in such a dramatic way that states are able to take advantage of the media attention such events garner in order to promote a discursive crisis, in which they can strengthen their efforts to reject refugees. But the system of governmentality extends not just to the border control efforts and policies, but through institutional fields until the domestic adjudication of asylum claims is itself poisoned by a discourse that focuses on illegality and favors rejection.

James Hathaway and Alexander Neve put deflectionary measures up against the principles of human rights and equality, even for non-citizens, that are expressed in the Canadian Charter of Rights and Freedoms and the Supreme Court's Singh Decision: “deflection runs afoul of both these principles by mechanistically and summarily excluding asylum seekers without any inquiry into their need for protection.... [it] is no more than an unconscionable attempt to shift duties away”. It is unconscionable. And attempting to maintain such a contradiction between values and action has led to the inhumanity of the Canadian state's relations with asylum seekers.

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