This chapter develops a critique of the “safe third country” concept, its legality, and its implications for understanding the nature and purpose of international refugee law. It does so, in part, on a different plane of analysis than has predominated the literature thus far. While most scholars have criticized the safe third country concept as undermining individual rights protection, this author argues that it is implicated in a preceding and more foundational harm: It deforms the possibility of democratic responsibility. We would do well to see the violations of refugee rights in question as more than privatized harms inflicted on an individual. They are relational and structural wrongs that concern the objective relationships guaranteed by domestic constitutional and administrative law. Perceiving this harm illuminates not only how the safe third country concept has corrupted international refugee law, but also why international human rights should be understood, more broadly, to protect the political agency of democratic citizens. This conclusion yields an important analytic shift, in which we see commitments to international human rights and humanitarian ideals to align, constructively and in new form, with the public integrity of democratic states.

This chapter argues that a distinct stock story of who refugees are and how they behave, which it describes as the ‘stock narrative of becoming a refugee’, featured throughout the hearings. This stock story is one version of how, when and why ‘genuine’ refugees decide to leave their home countries and seek refugee status in another state. The chapter analyses the extent to which this prescriptive narrative conforms with international and domestic definitions of refugee status, to show that the normative expectations embedded within the stock tale far exceed the legal basis for refugee protection. Nonetheless this story, with its distinct narrative form, was demanded of refugee applicants during oral hearings and structured how decision-makers tested and judged applicants’ evidence and credibility. While decision-makers frequently demanded evidence that conformed to the stock narrative of authentic refugeehood – or that applicants to account for deviations from this narrative – refugee applicants also implicitly or explicitly contested or resisted this demand when presenting their oral testimony.

In Chapter 5, I examine cases in which refugees directly challenge regional containment instruments. This has occurred in North America (a safe third-country agreement between the US and Canada), Asia-Pacific (offshore processing agreements between Australia and Malaysia, Australia and Papua New Guinea and Australia and Nauru), Europe (the Dublin System and a refugee swap agreement between Europe and Turkey) and Libya (an externalisation agreement between Libya and Italy). I examine the ways decision-makers manoeuvre juridical borders in constructing ideas of refuge and determining the legality of states’ attempts to prevent refugees crossing international borders. I observe that when courts consider the significance of refugeehood and expand their juridical borders, they set high thresholds for refuge and characterise it as a duty owed by states. However, in most cases courts ignore the salience of refugee status and retract their juridical borders. This means that there is no minimum standard of refuge set and refuge morphs from an obligation to a discretion. Refugees become trapped in the resisted place of refuge, unable to continue their journey except in extraordinary circumstances. What is considered exceptional is highly gendered with the narrow frameworks developed sidelining experiences of male and also many female refugees.