Hinzman et al. v. Canada (Minister of Citizenship and Immigration), (2006) 290 F.T.R. 8 (FC)

• Judge: Mactavish, J.
• Court: Federal Court (Canada)
• Case Date: February 08, 2006
• Jurisdiction: Canada (Federal)
• Citations: (2006), 290 F.T.R. 8 (FC);2006 FC 420

Hinzman v. Can. (M.C.I.) (2006), 290 F.T.R. 8 (FC)

MLB headnote and full text

Temp. Cite: [2006] F.T.R. TBEd. AP.018

Jeremy Hinzman (a.k.a. Jeremy Dean Hinzman), Liam Liem Nguyen Hinzman (a.k.a. Liam Liem Nguye Hinzman) and Nga Thi Nguyen (applicants) v. The Minister of Citizenship and Immigration (respondent)

(IMM-2168-05; 2006 FC 420)

Indexed As: Hinzman et al. v. Canada (Minister of Citizenship and Immigration)

Federal Court

Mactavish, J.

March 31, 2006.

Summary:

Hinzman was an American soldier who deserted the United States Army after his unit was deployed to fight in Iraq. He deserted because of his strong moral objections to the war in Iraq and his belief that the American-led military action in that country was illegal. After deserting, Hinzman and his wife and infant son came to Canada and claimed refugee protection, asserting that they had a well-founded fear of persecution in the United States based on Hinzman's political opinion. The Refugee Protection Division of the Immigration and Refugee Board rejected the family's claims, finding that the family members were neither Convention refugees nor persons in need of protection. Hinzman and his family applied for judicial review, asserting that the board erred: (1) in refusing to allow them to lead evidence with respect to the alleged illegality of the American military action in Iraq; (2) by ignoring evidence with respect to the alleged condonation of ongoing human rights violations perpetrated by the American military in Iraq, and with respect to the systemic nature of those violations; (3) by imposing too heavy a burden on them to demonstrate that Hinzman would himself have been involved in unlawful acts, had he gone to Iraq; and (4) in failing to properly consider the fact that since an objection to a particular war was not recognized as a legitimate basis on which to grant conscientious objector status in the United States, his conscientious objections to the war in Iraq were not taken into account by the United States Army, therefore any punishment that he might receive for having deserted automatically amounted to persecution.

The Federal Court dismissed the judicial review application.

Aliens - Topic 1322

Admission - Refugee protection - Convention refugees and persons in need of protection - Grounds - Well-founded fear of persecution - Conscientious objection to military service - An American soldier deserted and claimed refugee protection in Canada, alleging that he would face persecution in the United States based on his political opinion (i.e., his opinion that the military action in Iraq was illegal) - The soldier sought to introduce evidence to establish the illegality of the Iraq war - The Refugee Protection Division (RPD) refused to admit this evidence, ruling that it was irrelevant to a determination under para. 171 of the United Nations High Commission for Refugees Handbook on Procedures and Criteria for Determining Refugee Status (i.e., the deserter and conscientious objector provisions) - Paragraph 171 provided that "where ... the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to the basic rules of human conduct, punishment for desertion or draft evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution" - The soldier claimed that the RPD erred in its evidentiary ruling - The Federal Court interpreted para. 171 - The court held that when one was dealing with a foot soldier, such as in this case, the assessment of the "military action" within the meaning of para. 171 related to the "on the ground" conduct of the soldier in question, and not to the legality of the war itself - Thus the RPD did not err in finding evidence respecting the legality of the Iraq war to be irrelevant to the para. 171 determination - When considering the case of a mere foot soldier, the focus of the inquiry should be on the law of jus in bello, that is, the international humanitarian law that governs the conduct of hostilities during an armed conflict - In this context, the task for the RPD would be to consider the nature of the tasks that the individual has been, is, or would likely be called upon to perform "on the ground" - See paragraphs 90 to 167.

Aliens - Topic 1322

Admission - Refugee protection - Convention refugees and persons in need of protection - Grounds - Well-founded fear of persecution - Conscientious objection to military service - Paragraph 170 of the United Nations High Commission for Refugees Handbook on Procedures and Criteria for Determining Refugee Status provided that there might be cases where the necessity to perform military service could be the sole ground for a claim to refugee status, i.e., where a person could show that the performance of military service would have required his participation in military action contrary to his genuine political, religious or moral convictions, or to valid reasons of conscience - Paragraph 171 provided that not every conviction would constitute sufficient reason for claiming refugee status after desertion - Rather, para. 171 provided that "it is not enough for a person to be in disagreement with his government regarding the political justification for a particular military action. Where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to the basic rules of human conduct, punishment for desertion or draft evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution" - The Federal Court discussed the interrelationship between paragraphs 170 and 171 - The court stated, inter alia, that "paragraph 170 speaks to the nature and genuineness of the personal, subjective beliefs of the individual, whereas paragraph 171 refers to the objective status of the 'military action' in issue. That is, to come within paragraph 170 of the Handbook, the claimant must object to serving in the military because of his or her political, religious or moral convictions, or for sincere reasons of conscience" - However it was not enough to entitle a claimant to seek refugee protection just to bring themself within paragraph 170, rather paragraph 171 required "that there also be objective evidence to demonstrate that 'the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to the basic rules of human conduct'" - See paragraphs 107 to 111.

Aliens - Topic 1322

Admission - Refugee protection - Convention refugees and persons in need of protection - Grounds - Well-founded fear of persecution - Conscientious objection to military service - An American soldier who was about to be deployed to Iraq, deserted the United States Army and came to Canada, where he and his family claimed refugee protection - He claimed persecution in the United States based on his political opinion that the American military action in Iraq was illegal - The Refugee Protection Division of the Immigration and Refugee Board (RPD) rejected the claim - The soldier applied for judicial review, arguing that the RPD erred in finding that the applicants had failed to establish that the violations of international humanitarian law committed by the American military in Iraq rose to the level of being systematic or condoned by the State - The Federal Court rejected this argument and dismissed the application where the RPD's finding of fact was not patently unreasonable - See paragraphs 168 to 178.

Aliens - Topic 1322

Admission - Refugee protection - Convention refugees and persons in need of protection - Grounds - Well-founded fear of persecution - Conscientious objection to military service - An American soldier who was about to be deployed to Iraq, deserted the United States Army and came to Canada, where he and his family claimed refugee protection - He claimed persecution in the United States based on his political opinion - The Refugee Protection Division of the Immigration and Refugee Board (RPD) rejected the claim - The soldier applied for judicial review, arguing that the RPD erred in imposing too heavy a burden on the applicants to demonstrate that the soldier would himself have been involved in unlawful acts, had he gone to Iraq - The Federal Court rejected this argument and dismissed the application - The court held that the RPD applied the correct standard of proof in making the finding in issue (i.e., a balance of probabilities) - See paragraphs 179 to 190.

Aliens - Topic 1322

Admission - Refugee protection - Convention refugees and persons in need of protection - Grounds - Well-founded fear of persecution - Conscientious objection to military service - An American soldier who was about to be deployed to Iraq, deserted the United States Army and came to Canada, where he and his family claimed refugee protection - He claimed persecution in the United States based on his political opinion (i.e., that the military action by the United States in Iraq was illegal) - The Refugee Protection Division of the Immigration and Refugee Board (RPD) rejected the refugee claim - The soldier applied for judicial review, arguing that the RPD erred in finding that the refugee claimants had failed to rebut the presumption that adequate State protection would be available in the United States - The soldier argued that the failure of the United States to recognize conscientious objection to specific wars resulted in there being a "gap" between the rights guaranteed through American domestic law and those protected by international law - According to the soldier, this "gap" amounted to an "exceptional circumstance", and justified the conclusion that, in this case, the American law of general application was persecutory in its effect - This, in turn, made it objectively reasonable for the soldier to seek refugee protection in Canada - The Federal Court rejected this argument and dismissed the application - See paragraph 191.

Cases Noticed:

Zolfagharkhani v. Minister of Employment and Immigration, [1993] 3 F.C. 540; 155 N.R. 311 (F.C.A.), refd to. [para. 6].

Minister of Employment and Immigration v. Satiacum (1989), 99 N.R. 171 (F.C.A.), refd to. [para. 51].

Gillette v. United States (1971), 401 U.S. 437, refd to. [para. 57].

Ciric v. Minister of Employment and Immigration, [1994] 2 F.C. 65; 71 F.T.R. 300 (T.D.), refd to. [para. 66].

Popov v. Minister of Employment and Immigration (1994), 75 F.T.R. 90; 24 Imm. L.R. 242 (T.D.), refd to. [para. 73].

Al-Maisri v. Minister of Employment and Immigration (1995), 183 N.R. 234 (F.C.A.), refd to. [para. 98].

Krotov v. Secretary of State for the Home Department, [2004] E.W.C.A. Civ. 69, refd to. [para. 98].

Mugesera et al. v. Canada (Ministre de la Citoyenneté et de l'Immigration) (2005), 335 N.R. 229; 2005 SCC 40, refd to. [para. 113].

Chan v. Minister of Employment and Immigration (1995), 187 N.R. 321 (S.C.C.), refd to. [para. 116].

Sepet and another v. Secretary of State for the Home Department, [2003] 3 All E.R. 304; [2003] UKHL 15, refd to. [para. 122].

Diab v. Minister of Employment and Immigration, [1994] F.C.J. No. 1277 (F.C.A.), refd to. [para. 128].

Radosevic v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 74, refd to. [para. 129].

Sepet and another v. Secretary of State for the Home Department, [2001] E.W.C.A. Civ. 681; [2001] I.N.L.R. 376 (C.A.), refd to. [para. 138].

R. v. Jones, [2006] UKHL 16; 349 N.R. 201, refd to. [para. 141].

Zuevich v. Canada (Minister of Citizenship and Immigration) (1999), 172 F.T.R. 1 (T.D.), refd to. [para. 147].

Penate v. Minister of Employment and Immigration, [1994] 2 F.C. 79; 71 F.T.R. 171 (T.D.), refd to. [para. 154].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201; 160 D.L.R.(4th) 193, refd to. [para. 168].

Aguebor v. Ministre de l'Emploi et de l'Immigration (1993), 160 N.R. 315 (F.C.A.), refd to. [para. 168].

Woolaston v. Minister of Manpower and Immigration, [1973] S.C.R. 102, refd to. [para. 175].

Hassan v. Minister of Employment and Immigration (1992), 147 N.R. 317 (F.C.A.), refd to. [para. 175].

Cepeda-Gutierrez et al. v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (T.D.), refd to. [para. 177].

Adjei v. Minister of Employment and Immigration (1989), 132 N.R. 24 (F.C.A.), refd to. [para. 180].

Li (Y.) v. Canada (Minister of Citizenship and Immigration) (2005), 329 N.R. 346; 2005 FCA 1, refd to. [para. 184].

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1, refd to. [para. 221].

Ates v. Canada (Minister of Citizenship and Immigration) (2005), 343 N.R. 234 (F.C.A.), refd to. [para. 224].

Authors and Works Noticed:

Bugnion, Francois, Just Wars, Wars of Aggression, and International Humanitarian Law, International Review of the Red Cross, No. 847, vol. 84, p. 523 [para. 158].

Davidson, Michael J., War and the Doubtful Soldier, 19 ND J.L. Ethics & Pub. Pol'y 91, pp. 122 [para. 157]; 123 [paras. 155, 157]; 124 [para. 157]; 125 [para. 158].

Goodwin-Gill, Guy S., The Refugee in International Law (2nd Ed. 1996), pp. 57 [para. 204]; 58 [para. 212]; 59 [para. 220].

Hathaway, James C., The Law of Refugee Status (1991), generally [para. 144]; p. 182 [para. 210].

United Nations, Papers for the Preparatory Commission for the International Criminal Court (Princeton Papers), U.N. Doc. PCNICC/2002/WGCA/L.1 [para. 157]; U.N. Doc. PCNICC/2002/WGCA/L.1/ Add.1 [para. 157].

United Nations High Commission for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status (1988), paras. 60 [para. 218]; 169 [para. 80]; 170 [para. 91 et seq.]; 171 [para. 43 et seq.]; 172 [para. 194].

von Sternberg, Mark R., The Grounds of Protection in the Context of International Human Rights and Humanitarian Law: Canadian and United States Case Law Compared (2002), pp. 42 [para. 211]; 124 [para. 119]; 133 [paras. 119, 120].

Waldman, Lorne, Immigration Law and Practice (2nd Ed. 2005), § 8-212 [para. 121].

Counsel:

Jeffry House, for the applicant;

Marianne Zoric and Robert Bafaro, for the respondent.

Solicitors of Record:

Jeffry House, Toronto, Ontario, for the applicant;

John H. Sims, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard at Toronto, Ontario, on February 8, 2006, before Mactavish, J., of the Federal Court, who delivered the following decision on March 31, 2006.