Manickavasagam Suresh has been given a reprieve by the Canadian Supreme Court - but it may not last. He still faces deportation under Canada's draconian anti-terrorism laws passed in the wake of 11 September.
Suresh was granted refugee status in 1991 after fleeing Sri Lanka's civil war, only to be detained in 1995. He obtained a conditional release in 1998. But then in January this year, reflecting the anti-terrorism angst gripping so many parts of the world, the Canadian Supreme Court said his case should be reviewed.
The Government alleges Suresh has raised funds for the Liberation Tigers of Tamil Eelam (LTTE) which is fighting the Sinhalese-dominated Government of Sri Lanka. In the eyes of the Canadian Government this makes him a terrorist, but his lawyers say if he is deported he will be tortured and many other Tamil refugees could meet the same fate.
Suresh is caught in the double bind experienced by many who now seek refuge. They are fleeing their countries because they are being persecuted for their political dissidence or difference. But in their countries of asylum, their political dissidence - their very reason for needing to flee - is used to identify them as potential terrorists who deserve to be detained or deported.
It ain't no crime
However, more and more governments flout the Convention and labels like 'illegal', 'bogus claimants' and 'queue jumpers' are used to scapegoat those who move without visas.
Now, in the aftermath of 11 September, the fear of terrorism is being used to justify a crackdown on unauthorized border crossings and is fuelling the growing backlash against refugees across the world.
Although none of the 11 September hijackers entered the US as refugees, for a media and government that rely on simple messages of fear, any Arab or Muslim is suspect.
Racial profiling, discredited in US policing, has made a comeback. 'Driving while black' is replaced by 'flying while Arab' as the trigger for a pre-emptive detention by police or immigration authorities.
If the general climate of suspicion and racism is not hazardous enough, for many asylum seekers the 'war on terrorism' poses particular dangers.
For people like Manickavasagam Suresh, asylum has been an important way in which countless people in political movements can avoid disappearance, torture and other persecution at the hands of their governments.
Whether fleeing Pinochet's death squads in Chile or the apartheid regime in South Africa activists have often been able to continue their political activities in exile, thus contributing to movements for change. But where once governments, particularly in the North, would support or at least turn a blind eye to such actions now such activity could be labelled terrorist and be grounds for prosecution or deportation.
Now, fear of terrorism has been successfully twinned with fear of refugees. Just days after 11 September, Peter Reith, Australian Minister for Defence flagged the need to 'manage people coming into your country. You've got to be able to control that; otherwise it can be a pipeline for terrorists to come in and use your country as a staging post for terrorist activities.'
With this logic the Government manufactured a 'national crisis' when it used the SAS, Australia's élite military counter-terrorism squad, to 'kidnap' 'boat people' in international waters who had been rescued from their sinking vessel by the Norwegian freighter vessel MV Tampa. The asylum seekers were then shipped off to hastily erected detention centres on Nauru and Papua New Guinea following Australian promises of increased aid as part of the so-called 'Pacific solution'. Subsequently, 353 'boat people' drowned off the coast of Australia last year when their single vessel sank and the Navy failed to come to their aid.
Such strong-arm tactics helped the Government win the election, after which it introduced its new anti-terrorism laws, like many other countries around the world, enacting further changes to migration legislation.
New criminal offences have been created that rely on broad definitions of terrorism that could include protest, union actions and certainly national liberation movements. New powers for governments to create lists of organizations and people they say are terrorists are also widespread.
While these laws remove many of the civil rights - freedom of association and assembly, freedom from arbitrary imprisonment - gained by citizens over hundreds of years of struggle it is foreigners who are particularly targeted.
In Britain, the Government passed legislation allowing the detention of 'foreign nationals' without charge or trial.
The US Patriot Act allows the indefinite detention of non-US nationals who are facing deportation on national security grounds.
In South Africa the Terrorism Prevention Bill has revived memories of the apartheid regime's use of allegations of terrorism to criminalize the black majority's resistance to white rule.
On 20 November, Ireland's Refugee Act introduced a 14-day limit on appeal times and required the fingerprinting of all asylum seekers. Refugee applicants who protest the new laws could receive up to a year's imprisonment if they complain to the media without written authority from a Minister.
In Canada, the Government is finalizing an agreement with the US to prevent people seeking asylum at the US-Canada border, mirroring the Schengen Agreement which ushered in Fortress Europe last decade.
The 1951 Refugee Convention does allow exclusion of people eligible for asylum if they are found to have committed war crimes. However, it seems likely that governments will justify the exclusion of people based on fairly nebulous connections to the 'terrorism' defined in their new laws.
In Britain controversial proposals to build detention centres in rural areas are facing stiff opposition. Since 11 September, the numbers in immigration detention in the United States has soared, including over 1,000 people detained indefinitely in the weeks following the attacks.
Aotearoa/New Zealand has almost the smallest number of unauthorized arrivals in the world, but after the World Trade Centre attacks it detained almost all asylum seekers in the country on national security grounds. Before 19 September 2001 only 5 per cent of asylum seekers were held in detention. Afterwards this rose to 94 per cent with most people held in the Auckland Central Remand Prison alongside people facing criminal charges.
Lawyers have only just been able to get the High Court to declare the policy unlawful and order compensation. Despite that, Aotearoa/New Zealand's Immigration Minister has said the Government will appeal against the decision: 'I have concerns at the thought of allowing people into the country when we are not sure where they've come from and why they're here.'
Increasingly, detention itself is fuelling further criminalization as asylum seekers resist their incarceration. Protests and riots in detention centres in Australia, for example, mean criminal charges and prison sentences. In turn, the convictions mean governments can justify the deportation of asylum seekers on the grounds of 'bad character'.
The horrible irony for many detainees is that conditions in prisons are often better then those in detention centres. In fact, being treated as a 'real criminal', rather than the rhetorical 'illegality' used to cloak their treatment, would often give asylum seekers more rights.
A right to a fair trial and appeal, or indeed a trial at all prior to detention or deportation, is rarely available and fast disappearing. Australia's new Immigration and Refugee Protection Act 2002 will further limit appeal rights to a court. This reflects the practice where appeals to the courts have been limited to very narrow legal matters.
In December last year six men and two children died after suffocating in a cargo container used to smuggle them into Ireland. The Romanian asylum seekers were thought to have been at sea for over six days. Governments blame the people smugglers but the horrible logic of a border policy made harsher by the 'war on terrorism' is that more people who are seeking asylum will die. As borders are fortified and sanctions for unauthorized movement made harsher, people are driven to make greater use of people smugglers and more dangerous routes into the countries where they seek refuge.
For asylum seekers the terror is not the fear of the 'other' but the fear of being shot or drowning as they attempt to ford the Rio Grande at the US-Mexican border. For them, terrorism is not a shadowy suicide bomber, but the baton and tear-gas in an Australian desert detention centre.
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