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This thesis considers the apparent shift in Canadian refugee policy between the more liberal refugee programs of the 1980s to the more restrictive contemporary orientation. We provide an explanation for the nature and content of policy pronouncements made in the period following the events of September 11, 2001. In order to put contemporary policy in context, we begin our investigation post-World War II when Canada first entered the international arena as a fully independent state. What follows is an examination of why the Canadian government has preferred its choice of refugee policies, and a consideration of forces and institutions that have shaped policy in the postwar period. At the same time, we reflect on the tension between Canada's refugee policy choices and its stated commitment to humanitarian values and international agreements.

This thesis analyzes the influence of globalization on state sovereignty in the design and implementation of policies concerning asylum seekers. Using Canada as an example, it is argued that there are three emerging global forces that directly challenge the sovereignty of the state in matters of immigration. These forces are neoliberal and global security discourses and international refugee rights standards. But these forces have not led to a decline in the power of the state. Rather, they have forced the state to develop new strategies in order to reassert its sovereignty and regain its legitimacy. The state has responded to neoliberal and security pressures by designing, implementing and reinforcing control policies over asylum seekers. It has reacted to the international refugee rights norms and the demands of the refugee advocacy groups by developing strategies to integrate some of their principles without relinquishing its authority and autonomy.

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The thesis focuses on the Immigration and Refugee Board of Canada's Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution, released in 1993. The guidelines were designed to address a perceived shortcoming in international refugee law and its domestic applications, namely, the omission of gender-based persecution from the protection of the 1951 United Nations Convention Relating to the Status of Refugees. The omission of gender from the UN Convention had resulted in gender inequalities in the evaluation of asylum claims, inequalities the Canadian guidelines were designed to correct. However, since the inception of the guidelines, critics have dismissed the directives as numerically ineffective, pointing to the low numbers of women requesting asylum on the basis of gender-related persecution. While such a numerical analysis may be useful, the thesis argues it is incomplete. The thesis centres instead on the vital consciousness-raising role played by the guidelines, both domestically and abroad, and on the concrete results engendered by this function in the international realm of women's human rights.

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Recent feminist criticism has resulted in remarkable changes to the interpretation of the refugee definition. Case law, academic commentaries and gender guidelines now recognize that women may constitute a particular social group under the definition of refugee. However, only those who belong to certain subgroups of women are usually granted asylum because being a woman only is considered too broad to comprise a particular social group. Such restrictive interpretation is theoretically and practically problematic, and it is the primary cause for the inconsistency in the interpretation of the definition of a particular social group and refugee determination in gender-based claims. Through an analysis of recent gender-based cases before the Canadian courts and the Immigration and Refugee Board, this paper argues that this inconsistency will be avoided when categorization of women does not require female claimants to prove characteristics other than their gender. Female refugees who are persecuted for being women do not need to provide additional reasons for their suffering, and this broad categorization of women should be consistently applied in Canada.

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The dissertation investigates South Africa’s legal aspects pertaining to voluntary repatriation of refugees. The repatriation of Mozambican and Angolan refugees was referred to in order to examine the loopholes in the process of repatriating them. This study moreover examines whether the application of the cessation clause is in contravention of the principle of non-refoulement, which is intrinsically the cornerstone for voluntariness of repatriation. The analysis of international, regional and South Africa’s refugee protection framework demonstrates that South Africa affords refugees the protection required by international law. This has been compared with states’ practice and case law with regards to refugee protection in countries including Canada and the United Kingdom. Although South Africa, Canada and the United Kingdom have comprehensive legal framework governing refugees’ protection, refugees’ rights have been violated on numerous occasions. The dissertation consequently concludes that notwithstanding the presence of international, regional and domestic legislations, the rights of refugees are violated due to their vulnerability and the repatriation process ignores the principle of voluntariness on several occasions. / Public, Constitutional, and International Law / LLM

The dissertation investigates South Africa’s legal aspects pertaining to voluntary repatriation of refugees. The repatriation of Mozambican and Angolan refugees was referred to in order to examine the loopholes in the process of repatriating them. This study moreover examines whether the application of the cessation clause is in contravention of the principle of non-refoulement, which is intrinsically the cornerstone for voluntariness of repatriation. The analysis of international, regional and South Africa’s refugee protection framework demonstrates that South Africa affords refugees the protection required by international law. This has been compared with states’ practice and case law with regards to refugee protection in countries including Canada and the United Kingdom. Although South Africa, Canada and the United Kingdom have comprehensive legal framework governing refugees’ protection, refugees’ rights have been violated on numerous occasions. The dissertation consequently concludes that notwithstanding the presence of international, regional and domestic legislations, the rights of refugees are violated due to their vulnerability and the repatriation process ignores the principle of voluntariness on several occasions. / Public, Constitutional, and International Law / LLM