Date:
20110405
Dockets: IMM-5527-08
IMM-5528-08
Citation:
2011 FC 415
Ottawa, Ontario, April 5,
2011
PRESENT: The
Honourable Mr. Justice de Montigny
BETWEEN:
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DEAN WILLIAM WALCOTT
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
These
are two different applications for judicial review made by the same Applicant
with regard to two decisions made by PRRA Officer J. Zucarelli, both dated
November 3, 2008. In the first decision, the Officer rejected the Applicant’s
application for Pre-Removal Risk Assessment (“PRRA”). In the second decision,
the Officer denied the Applicant’s request to have his application for
permanent residence processed from within Canada on
humanitarian and compassionate grounds (“H&C”).
[2]
These
two applications for judicial review raise the same facts, and the assessment
of the risk/hardship that the Applicant would experience if returned to the United
States
is based on the same arguments. While these applications were not consolidated
under Rule 105 of the Federal Courts Rules (SOR/98-106), they were
scheduled for hearing on the same day and were argued together. Accordingly,
these reasons will address both applications and shall be placed in each of the
files.
1. Facts
[3]
The
Applicant is a 28-year-old male. He is a citizen of the United
States
and a member of the U.S. Marine Corps. He voluntarily enlisted in the Marine
Corps on August 21, 2000 and remained in the military until 2006. He completed
two tours of duty in Iraq and Kuwait. In November
2004, he was deployed to Stuttgart, Germany, where he assisted
wounded personnel in attending appointments, taking medication and other
personal chores. These experiences led him to develop moral and political
objections to the war in Iraq and the conduct of the U.S. military in
conflict. They also caused him to develop post-traumatic stress disorder
(PTSD). He was eventually posted to a non-deployable position in the U.S., training
other soldiers; at this point in time, he determined that he could not in good
conscience continue doing such training.
[4]
After
researching the possibility of seeking a discharge from the army and consulting
approximately 20 lawyers, he went absent from his unit without authorization.
He came to Canada and claimed
refugee status in December 2006. His refugee claim was denied and he was not
granted leave for judicial review. He then made PRRA and H&C applications,
which were refused.
[5]
In
support of his PRRA application, the Applicant submitted that he would
experience persecution and cruel and unusual treatment if returned to the U.S.,
because of his status as a public objector to the Iraq war who has been absent
from his unit since December 2006.
[6]
For
his H&C application, he also claimed that numerous negative legal,
physical, psychological and financial ramifications would stem from this status
upon return to the U.S. and would amount to undue hardship. In
particular, he asserted that he would be charged with unauthorized absence, or
desertion, and subjected to a court-martial proceeding; he does not believe
that he will receive a fair trial. He also states that he will receive
disproportionately harsh non-judicial punishment because of his stance opposing
the war in Iraq.
2. The impugned
decisions
- The PRRA
decision
[7]
The
Officer first summarized the Refugee Protection Division (RPD) decision, which
concluded that the Applicant had made insufficient attempts to seek protection
in the U.S.A. before coming to Canada. She explained that the RPD was not
satisfied that he would indeed face the dangers he claimed to risk if he is
returned home, since his desertion would have been, in all probability, dealt
with through administrative means and also because adequate legal recourse and
due process was available to the Applicant in his country.
[8]
The
Officer then critiqued the Applicant’s PRRA application for its resemblance to
a re-argument of the same submissions he had made at the RPD stage, and
emphasized that the PRRA is not meant to be a rehearing of the refugee claim
hearing.
[9]
She
then explored the evidence pertaining to the judicial punishment that the
Applicant would likely face if returned. First, she noted that it was more
likely that he would be reprimanded only administratively, as determined by the
Federal Court of Appeal in Hinzman v Canada (Minister of Citizenship and
Immigration), 2007 FCA 171. Commenting on the affidavits and letters from U.S. military
personnel who believe that they were treated differently and subjected to
harsher treatment because of their public opposition to the war in Iraq, she stated
the following:
These submissions demonstrate that these
individuals were convicted of various offences, including: unauthorized
absence, desertion and missing movement. They received prison sentences ranging
from 6 to 15 months, demotions, forfeiture of pay, fines, and bad conduct
discharges. I accept that these documents recount first-hand experiences for
certain U.S. military personnel, and that the U.S. military does, in some
circumstances, prosecute personnel for being AWOL (absent without leave), for
desertion, and form missing movement. However, these documents also demonstrate
that where military personnel were charged with an offence, they were afforded
due process in the form of a court-martial proceeding. I find that these
affidavits and letters do not support that the applicant would be unable to
access state protection in the United States or to receive due process in a
military and/or civilian court system in the United States.
[10]
She
also found that the possibility of persecution under a law of general
application is not, in and of itself, sufficient evidence that an applicant
faces persecution or harm under sections 96 and 97 of the Immigration and
Refugee Protection Act (“IRPA”). She wrote the following:
While the applicant asserts that if he
returns to the United States he will suffer persecution and harm as a result of
his political opinion and public involvement against the war in Iraq, the evidence
before me does not support that punishment under a law of general application
amounts to persecution under section 96 of the IRPA or torture, or a risk to
life or cruel and unusual treatment or punishment under section 97 of the IRPA.
The Federal Court of Appeal in Hinzman stated “Although the United States, like other countries, has
enacted provisions to punish deserters, it has also established a comprehensive
scheme complete with abundant procedural safeguards for administering these
provisions justly.”
(Federal Court of Appeal, Hinzman v. Minister of Citizenship and Immigration,
2007 FCA 171, 30 April 2007). While sentences imposed for offences in
democratic countries vary depending on the individual circumstances of each
case, it is recognized that public opinion on these differing outcomes will
also vary. The discretion afforded to judges, including in a court-martial
proceeding, is an inherent component of an independent judiciary, unless it can
be demonstrated that the discretion was applied in violation of the principles
of natural justice, or imposed in disregard of accepted international
standards. The evidence before me does not support that the sentences imposed
on the individuals referred to in the applicant’s submissions were disproportionately
harsh because of their public opposition to the war in Iraq. Similarly, the evidence before me does
not support that the UCMJ will be applied in a disproportionately harsh manner
against the applicant as a result of his personal circumstances.
[11]
The
Applicant had also submitted that he had not applied for conscientious objector
status for fear that he would receive reprisals and negative reactions from his
colleagues, that his application would not be properly processed, and that he
would not meet the criteria for conscientious objector status under U.S.
military law. In response, the Officer pointed to the clear guidelines for
making such applications, and found that this option of claiming conscientious
objector status had been and remained open to the Applicant.
[12]
The
Officer pointed out the procedural safeguards associated with the
court-martialing process, suggesting that the Applicant would be fairly treated
if court-martialed. With respect to evidence regarding another Iraq deserter who
was badly treated after having been court-martialed, the Officer noted that
this man had not pursued all of the avenues of redress available to him.
[13]
The
Officer then considered non-judicial punishment, which is a discipline system
within the U.S. military
whereby soldiers are punished for misconduct. The punishments are determined by
military authorities through a system of hearings, but no courts are involved.
The Applicant claims that he risks cruel and unusual or arbitrary treatment
through this system. After discussing the evidence regarding this kind of
punishment, however, the Officer concluded that he faced no significant risk.
She also found that the authority of military commanders to impose non-judicial
punishment is a law of general application under which the Applicant would be
afforded due process should it be inappropriately imposed. Furthermore, the
Officer emphasized that if the Applicant was subject to cruel treatment,
various avenues of redress would be available to him.
[14]
Finally,
the Officer discussed the Applicant’s post traumatic stress disorder (PTSD),
for which he is receiving treatment in Canada. While the
Applicant argued that he would not receive comparable treatment in the U.S.,
the Officer points out that s. 97 of the IRPA aims to protect against
persecution, and there is less than a mere possibility that he will be
persecuted as a result of his mental health in the U.S.
- The H&C
decision
[15]
The
Officer began by setting out the applicable legal test and her jurisdiction as
a PRRA Officer making an H&C decision. She then noted that the risk factors
cited by the Applicant were the same as those put forward for his refugee claim
and his PRRA application, and stated that the risk alleged was to be considered
in the context of the Applicant’s degree of hardship, and not sections 96 and
97 of the IRPA.
[16]
The
Officer then set out the risks that the Applicant claimed he would face if
returned to the U.S., beginning with the Applicant’s account of his
experience in the Marine Corps up until he left without permission and entered Canada in December
2006. Next, she summarized the RPD decision that rejected his claim for refugee
status. She then turned to the evidence submitted by the Applicant with respect
to the judicial and non-judicial punishment he risked facing upon return to the
U.S.
[17]
With
respect to the judicial punishment, the Officer repeated verbatim the same
discussion of judicial punishment that she offered in the PRRA decision. She
describes the Uniform Code of Military Justice (UCMJ, 64 Stat. 109,
10 U.S.C. Chapter 47) (“UCMJ”) with respect to the punishment of deserters, Hinzman’s
finding that 94% of deserters are dealt with administratively, and the
Applicant’s submissions of affidavits and letters from U.S. military personnel
who believe that they were treated differently and subjected to harsher
treatment because of their opposition to the war in Iraq. She found that this
evidence did not establish that the Applicant would suffer unusual and
undeserved or disproportionate hardship if returned to the U.S.
[18]
As
she did in the PRRA, the Officer focused on the idea that because the Applicant
would be punished for his desertion through laws of general application, he
would not be subject to persecution. She also reiterated that even if he were
to be sanctioned or prosecuted by the military, he would enjoy access to
protective mechanisms and due process.
[19]
Regarding
the Applicant’s failure to apply for conscientious objector status, she
repeated verbatim her comments from her PRRA decision, once again dismissing
the Applicant’s arguments that such status was not available to him. She also
repeated her PRRA discussion with respect to the availability of other state
protection mechanisms.
[20]
The
Officer closed her discussion of judicial punishment with the conclusion that
the Applicant had not, through the evidence before her, established that
hardships relating to his return to the U.S. would
constitute unusual and undeserved or disproportionate hardship.
[21]
With
respect to the non-judicial punishment that the Applicant alleges, the Officer
again repeats her PRRA discussion verbatim. She found that the evidence did not
support the conclusion that the Applicant would be especially severely punished
because he spoke out against the Iraq war. She noted that he
would have access to counsel and due process. She again repeated that he would
be punished under a law of general application and therefore under a law that
is not persecutory.
[22]
The
Officer then moved into a discussion of “other hardships” that the Applicant
would allegedly face if returned to the U.S.: social ostracism, physical
violence from those opposed to his political opinions, the inability to vote or
work in certain occupations if convicted of desertion or other military
offences, the inability to apply for the skilled worker program from outside
Canada, and his psychological health problems.
[23]
With
respect to social ostracism and physical violence, the Officer noted that the
law enforcement in the U.S. would be able to protect him from
incidents of violence and that seeking this protection would not amount to
undue hardship. If he receives emails or other expressions of displeasure with
his choices from other Americans, such statements would be consistent with
freedom of expression and exposure to them would not constitute undue hardship
for the Applicant. Regarding the inability to vote or work in certain
occupations if convicted of desertion or other military offences, she found
that the laws causing these consequences were laws of general application and
they did not amount to hardship. Furthermore, she found these assertions
speculative.
[24]
As
for the inability to apply under the skilled worker program in Canada, she
noted that being absent without leave from the U.S. military is
not a crime in Canada and that even if convicted in the U.S., he would
not be inadmissible to Canada. However, if he is convicted of desertion
(a much more serious offence involving a maximum term of imprisonment for life
if committed while on active service or under orders for active service), he
would be inadmissible to Canada pursuant to s. 36(1)(b) of the IRPA.
That being said, she did not find that this potential inadmissibility would
constitute unusual and undeserved or disproportionate hardship. She then noted
that the H&C process is not intended to circumvent the ability of a
democratic country to prosecute one of its citizens, so long as the prosecution
is not being imposed in disregard with accepted international standards. She
stated that the evidence did not support the view that the UCMJ would be
imposed against the Applicant in a manner disregarding such accepted
international standards, that criminality is contemplated under section 36 of
the IRPA, and that the Applicant’s failure to exhaust all available
avenues of state protection prior to seeking international protection was not
beyond the Applicant’s control.
[25]
With
respect to the Applicant’s Post Traumatic Stress Disorder (PTSD), the Officer
summarized the treatment he received before he left the military and his
assertion that if he is returned to the U.S., he would not continue to receive
the same quality of treatment that he enjoys in Canada. She found
this assertion to be speculative and not supported by the evidence, and noted
the well-established mental health resources in the U.S. In an
addendum, she considered additional submissions consisting essentially of
consultation notes from the Applicant’s psychiatrist reiterating the
Applicant’s medical problems, the positive effects of the medication he is taking,
and his belief that his forced return to the U.S. would
exacerbate his problem and reduce the likelihood of getting treatment.
Consistently with her prior assessment, the Officer found that there was an
adequate mental health treatment system in the U.S. She stressed
that the medical notes provided by the Applicant demonstrate that he has
received treatment for his diagnosis in his home country in the past, and she
repeated that the evidence before her does not support the view that he would
be unable to obtain treatment in the U.S.
[26]
As
regards to the Applicant’s establishment in Canada, the Officer
observed that he has been here for almost two years. She noted that he was
unemployed and receiving social assistance for about 10 months, but is now
employed, and has been involved in the community since his arrival. She placed
positive consideration on his good civil record in Canada and his
employment and volunteer efforts, but she did not find that he had integrated
into Canada to the
extent that his departure would cause unusual and undeserved or
disproportionate hardship. She noted that he should be able to re-establish
himself in the U.S., his native country, and doing so would not
constitute hardship.
[27]
She
concluded by observing that although the Applicant does not wish to return to
the U.S., and that this wish may be understandable, it is an insufficient basis
to allow him to remain in Canada. The evidence that he submitted did not
satisfy her that he qualified for H&C status.
3. Issues
[28]
Counsel
for the Applicant raised three separate issues with respect to each of the
impugned decisions. Concerning the PRRA, these issues are the following:
a)
Did the
Officer misconstrue the risks put forward by the Applicant?
b)
Did the
Officer ignore evidence and deny the Applicant procedural fairness by failing
to provide adequate reasons for his decision?
c)
Was the
Officer’s finding that the Applicant had not rebutted the presumption of state
protection unreasonable and made without regard to the evidence before her?
The
issues relating to the H&C decision, as presented by the Applicant, are as
follows:
a)
Did the
Officer err in law by assessing risk in the Applicant’s H&C application
under thresholds applicable to ss. 96 and 97 of the IRPA, and by failing
to assess the hardship the Applicant would face if returned to the U.S.?
b)
Did the
Officer err in law by failing to have regard to the totality of the evidence
before her, including ignoring contradictory evidence and misconstruing
evidence?
c)
Did the
Officer make an unreasonable decision by providing insufficient reasons for his
findings, thereby rendering his decision unreasonable?
4.
Analysis
-
The PRRA decision
[29]
It
is settled law that PRRA decisions involve mixed questions of fact and law and,
as such, are reviewable under the reasonableness standard. Reasonableness
requires consideration of the presence of justification, transparency, and
intelligibility in the decision-making process. It is also concerned with
whether the decision falls within a range of acceptable outcomes, which are
defensible in respect of the facts and law: see Dunsmuir v New Brunswick,
2008 SCC 9, at para 47; Sounitsky v Canada (Minister of Citizenship and
Immigration), 2008 FC 345, at paras 15-19.
[30]
To
the extent that the adequacy of the Officer’s reasons is called into question,
the applicable standard of review must be that of correctness. As the Supreme
Court of Canada stated in Canadian Union of Public Employees (C.U.P.E.) v Ontario (Minister of
Labour),
[2003] 1 S.C.R. 539, at para 100, “It is for the courts, not the Minister, to
provide the legal answer to procedural fairness questions”.
a) Did the
Officer misconstrue the risks put forward by the Applicant?
[31]
The
Applicant submits that the Officer failed to appreciate the nature of the risk that
he raised of differential and therefore persecutory punishment on the basis of
political opinion and that, as a result, the Officer’s finding that state
protection existed for the Applicant was unreasonable. In his submissions to
the PRRA Officer, the Applicant attempted to distinguish his case from the
first decision of the Federal Court of Appeal in Hinzman (2007 FCA 171),
where it was noted that 94% of deserters are merely administratively discharged
(rather than prosecuted). The Applicant submitted new evidence, which was not
before the Federal Court of Appeal, indicating that the percentage of military
deserters who are not discharged are those who are publicly opposed to the war
in Iraq. In other words, the Applicant argued that the very fact that an
individual is prosecuted for desertion through a court-martial proceeding in
the United
States,
as opposed to being administratively discharged without prosecution, amounts to
the differential application of the UCMJ through the exercise of prosecutorial
discretion, based on the individual’s political opinion.
[32]
A
similar argument was made by Mr. Hinzman in his motion to stay the execution of
his removal order, and was accurately captured by Mr. Justice Mosley in the
endorsement of his order granting the motion:
There is no suggestion in the material
before me that the principal male applicant will be denied due process by the U.S. military justice system. However, the
evidence indicates that the laws relating to the punishment of desertion by the
U.S. military are applied differently in the exercise of prosecutorial
discretion based on the individual deserter’s profile as an opponent or critic
of the U.S. war effort. The majority of
deserters are released from the military without prosecution and receive at
most, a dishonourable discharge. A small number who are on public record for
their criticisms abroad are prosecuted and jailed.
[33]
In
other words, it is the very fact that an individual is being prosecuted for
desertion through a court-martial proceeding, as opposed to being discharged
without prosecution, which amounts in the Applicant’s view to the differential
application of the UCMJ through the exercise of prosecutorial discretion, based
on the individual’s political opinion.
[34]
The
notion that differential prosecution for desertion can be persecutory is not
novel. While there is a presumption that compulsory military service is a law
of general application, and that punishment for evasion is merely prosecution
and not persecution, the UNHCR Handbook on Procedures and Criteria
for Determining Refugee Status outlines a few exceptions to that
presumption, including that set out in section 169:
A deserter or draft-evader may also be
considered a refugee if it can be shown that he would suffer disproportionately
severe punishment for the military offence on account of his race, religion,
nationality, membership of a particular social group or political opinion.
[35]
As
the Applicant outlines in his submissions before the Officer, when a law of
general application is applied in a manner that is not neutral vis-à-vis the
five grounds of Convention refugee status, which includes political opinion,
that law is being applied in such a way as to be persecutory. The key question
raised by the Applicant, therefore, was whether he was at risk of differential
prosecution because he had publicly politically opposed the war in Iraq.
[36]
The
Officer, despite accepting that the Applicant would be charged and face
prosecution, and despite also accepting that the majority of deserters are
merely administratively discharged from the U.S. military without prosecution
through court-martial, concluded that the evidence before her does not support
that the UCMJ would be applied in a disproportionately harsh manner against the
Applicant as a result of his personal circumstances.
[37]
If
the very fact that the Applicant would be subject to prosecution is a
differential and, as a result, persecutory application of the law based on his
political opinion, then the existence of procedural safeguards that exist
within the hearing process would not alleviate the persecution of being
subjected to the proceeding in the first place. The persecution comes from the
fact of being prosecuted for his political opinions and not from the manner in
which the prosecution is carried out. This was the issue raised by the
Applicant. The Officer does not address this issue.
[38]
The
Officer relies on due process guarantees that would not in fact offer any
protection from the Applicant being selected for prosecution based on his
political opinions. Access to civilian and/or military counsel, the right to a
recorded hearing, the right to present evidence in one’s defence, and the right
to appeal a court-martial sentence do not protect him from the discriminatory
exercise of prosecutorial discretion on the basis of political opinion. The
Officer has listed general procedural protections available in the military
justice system, but has not discussed protections that would shield him from
the risk of the differential prosecution that he will allegedly face.
[39]
Similarly,
the Officer mistakenly understands the risk of differential punishment put
forward by the Applicant as receiving a harsher sentence administered by a
military judge. She discusses the discretion afforded to judges to administer
differing sentences, and concluded that the evidence does not suggest that
sentences imposed on the individuals referred to in the Applicant’s submissions
were disproportionately harsh because of their public opposition to the war in Iraq. In doing
so, the Officer fails to appreciate that the risk of differential and more
severe punishment stems from the decision on whether or not to prosecute in the
first place.
[40]
The
fact that the Officer found that the risks raised in the Applicant’s PRRA
application were the same as those raised before the RPD – where no evidence
was adduced regarding the risk of the differential application of the UCMJ
against the Applicant because of his publicly expressed political opinions –
confirms that the PRRA Officer misconstrued the nature of the risk raised by
the Applicant.
[41]
Considering
that different risks were raised by the Applicant in his PRRA application from
those raised before the RPD, and from those raised at the Federal Court of
Appeal in Hinzman, and considering that substantially different evidence
was before the Officer than was before the RPD and before the Federal Court of
Appeal in Hinzman, the Applicant was entitled to an assessment of the
new risks raised in his application and an assessment of the available state
protection from the new risks he put forward. This failure of the Officer to
properly address the risk of differential punishment is therefore fatal to the
Officer’s determination that state protection would be available in his country.
[42]
It
is interesting to note that this Court dealt with a very similar case in Rivera
v Canada (Minister of
Citizenship and Immigration), 2009 FC 814. In that case, the Applicant
was also challenging a negative PRRA decision on the basis that the Officer had
misconstrued and failed to appreciate the true nature of the risk of
differential treatment that he had put forward as a result of the fact that he
was more likely to be prosecuted because of his public stance against the war
in Iraq. The same PRRA Officer, in reasons disturbingly similar to those she
penned in the case at bar, addressed the identified risks by invoking the procedural
safeguards available to the Applicant and by pointing out that the discretion
afforded to judges in sentencing is an inherent component of an independent
judiciary, unless it can be demonstrated that the discretion is applied in
violation of the principles of natural justice, or imposed in disregard of
accepted international standards.
[43]
Counsel
for Mr. Rivera, who also happens to be counsel for Mr. Walcott, made
essentially the same arguments as she did before me. In the end, Mr. Justice
Russell granted the application and accepted those submissions. It is worth
quoting at length from my colleague’s reasons, not only because I am in full
agreement with him but also because they could easily be transposed in the case
at bar:
[96] What the Officer’s analysis
leaves out of account is the whole issue of whether targeting soldiers and
subjecting them to court martial because of their political opinion is a
neutral application of a general law and, if it is not, whether such conduct by
the state can be persecution under section 96 or harm under section 97.
[97] In other words, the Officer
identifies the act of prosecution as a stated risk but does not analyse that
aspect of the Applicants’ case. He focuses on what happens after the decision
to prosecute has been taken. This approach infects his whole analysis because,
in looking at state protection, he never asks whether the state can, or is
likely to, protect the Principal Applicant against targeting in the event that
such targeting can be said to be section 96 prosecution or section 97 harm.
(…)
[99] In the end, there is no
meaningful examination in the Decision of selected and targeted prosecution
based upon political opinion of those deserters who have spoken out against the
war in Iraq. The Principal Applicant
provided ample evidence of the targeting of similarly situated individuals, but
this evidence is never addressed from this perspective. In addition, there was
also evidence before the Officer of prosecutors seeking harsher treatment, and
judges imposing harsher sentences, for deserters who have spoken out against
the war. This again raises the issue of the exercise of prosecutorial and
judicial discretion in a way that discriminates against those soldiers who have
expressed public opposition to the war in Iraq. In turn, this calls into question the
procedural and state protection safeguards available to targeted individuals
who are prosecuted (instead of receiving an administrative discharge) and who
are punished harshly for their political opinions, and whether this amounts to
section 96 persecution or section 97 harm. In her written submissions, the
Principal Applicant raised the issue, not only of disproportionate punishment,
but of the improper exercise of prosecutorial discretion based upon an
individual deserter’s profile as an opponent or critic of the U.S. war effort. In my view, the availability
of the conscientious objector process, even if it were available to the
Principal Applicant, which does not appear likely or the evidence, is
irrelevant to this issue.
[44]
As
mentioned, I am in full agreement with these reasons. The Officer was clearly
aware that what the Applicant feared was not so much to be punished for having
been absent from his military unit without permission, but of being treated
more harshly because of the high profile of his case and his public speeches in
opposition to the war in Iraq. Yet, the Officer failed to address this risk,
and more particularly the risk of being court-martialed and imprisoned rather
than being administratively discharged. Having mischaracterized the risk
alleged by the Applicant, the Officer could not properly assess it. For that
reason alone, this application for judicial review ought to be granted.
b) Did the Officer ignore evidence and
deny the Applicant procedural fairness by failing
to provide adequate reasons for his
decision?
[45]
As
part of her submissions, counsel for the Applicant included numerous
affidavits, letters, media reports and even the Congressional testimonies of a
decorated veteran and his wife. All of these individuals, who are arguably
similarly situated to the Applicant, state that they received differential
prosecution under the UCMJ because of their opinions objecting to the war in Iraq. Also
included was the affidavit of a U.S attorney who has been involved in the
representation of military personnel and draft resisters for more than 40 years;
he testified that the situation of those who have absented themselves from
military service to avoid participation in the Iraq war for conscientious
reasons is much worse than was the case up until 2002, and that these
individuals are now given uncharacteristically harsh treatment upon their
return.
[46]
Indeed,
there was evidence of several U.S. military personnel who were public about
their objections to the war in Iraq while being absent without leave being
sentenced to incarceration after returning from Canada. In the case
of two of these individuals, the evidence before the Officer demonstrated that
the fact that they had spoken out against the war in Iraq was argued
by military prosecutors to be an aggravating factor in their offence of
desertion at their court-martial proceedings.
[47]
The
Officer apparently considered that evidence but rejected it in the following
terse paragraph:
The submissions of the applicant include
affidavits and letters from U.S. military personnel who
believe that they were treated differently and subjected to harsher treatment
because of their public opposition to the war in Iraq. These submissions demonstrate that
these individuals were convicted of various offences, including: unauthorized
absence, desertion and missing movement. They received prison sentences ranging
from 6 to 15 months, demotions, forfeiture of pay, fines, and bad conduct
discharges. I accept that these documents recount first-hand experiences of
certain U.S. military personnel, and that the U.S. military does, in some
circumstances, prosecute personnel for being AWOL (absent without leave), for
desertion, and for missing movement. However, these documents also demonstrate
that where military personnel were charged with an offence, they were afforded
due process in the form of a court-martial proceeding. I find that these
affidavits and letters do not support that the applicant would be unable to
access state protection in the United States or to receive due process in a
military and/or civilian court system in the United States.
[48]
Once
again, this excerpt illustrates that the Officer misses the point raised by the
Applicant and does not offer any explanation as to why the evidence put forward
in support of the Applicant’s case did not demonstrate the differential
exercise of prosecutorial discretion and the resultant differential punishment
that the Applicant alleged. The absence of any applicable explanation for her
conclusion – that the evidence does not support the Applicant’s claim that he
would receive differential prosecution and punishment based on his political
opinion – is particularly glaring since the Officer, as was noted above,
accepted that the majority of U.S. Army deserters are administratively
discharged. Why is a period of incarceration (potentially exceeding 15 months)
received by those who voice their political opinions, as opposed to no judicial
punishment and an administrative discharge received by those who do not voice
their opinions, not differential punishment? How, when speaking out about one’s
political opinion is seen as an aggravating factor by prosecutors in the
offence of desertion requiring maximum punishment, does the evidence not
support a finding of differential prosecution and therefore persecution on the
basis of political opinion?
[49]
I
agree with the Applicant that the Officer failed to adequately address evidence
that directly contradicted the Officer’s findings on this risk, and failed to
provide adequate reasons for her conclusion on the risk of differential
prosecution. The rules of procedural fairness require that each applicant be
provided with a reasoned explanation as to why their application was denied,
and the failure to provide such an explanation constitutes an error of law: Malveda
v Canada (Minister of Citizenship and Immigration), 2008 FC 447; Brandford
v Canada (Minister of Citizenship and Immigration), 2007 FC 1113; Singh
v Canada (Minister of Citizenship and Immigration), 2008 FC 673; Adu v
Canada (Minister of Citizenship and Immigration), 2005 FC 565. It was not
sufficient for the Officer to state that the evidence does not support the
Applicant’s assertion that he would be subjected to differential prosecution;
the Officer was required to provide an explanation as to why the evidence was
insufficient. This was another fatal error that calls for the quashing of her
decision.
c) Was the Officer’s finding that the
Applicant had not rebutted the presumption of state
protection unreasonable and made
without regard to the evidence before her?
[50]
The
Applicant further submitted that the Officer was unreasonable to conclude that
he had not exhausted the avenues of state protection available to him. In
particular, she found that seeking conscientious objector status was an option
available to the Applicant that he had not pursued. On this point, the Officer
wrote: “While the applicant’s submissions indicate that he would not meet the
criteria for conscientious objector status under U.S. military law, this
determination was not made by the U.S. Marine Corps” (at p. 6 of the PRRA Notes
to File).
[51]
The
Department of Defence Directive 1300.06 and the Marine Corps Order 1306.16E
cited by the Officer define who qualifies for conscientious objector status for
the purposes of the United States military at large and more particularly for
the U.S. Marine Corps. Both documents define a conscientious objector as
someone who has a “firm, fixed, and sincere objection to participation in war
in any form or the bearing of arms, by reason or religious, moral or ethical
training and belief”. While “religious training and belief” may include
“solely moral or ethical beliefs even though the Applicant may not characterize
these beliefs as “religious” in the traditional sense, or may expressly
characterize them as not religious”, it is a strict requirement that an
individual opposes all wars rather than a specific war in order to be eligible
for consideration as conscientious objector.
[52]
That
being the case, it appears that the Applicant does not meet the definition of a
conscientious objector under U.S. military law since he does not object to
all wars but only to the war in Iraq. The Applicant’s
position as a “selective objector” means that he would most likely not be able
to access the protection of conscientious objector status within the U.S. Marine
Corps. This argument was clearly put forward in the Applicant’s submissions
before the Officer. Furthermore, there were multiple pieces of evidence before
the Officer, in addition to the applicable legislation cited above, that
documented his position that a conscientious objector status was not a
protection available to him.
[53]
I
agree with the Applicant that in order for the avenues of protection cited by
the Officer to form the reasonable basis for a conclusion that the Applicant
did not exhaust the domestic protection available to him prior to seeking
international protection, those protections must be actually applicable to the
particular circumstances of the Applicant. Furthermore, the fact that the
Applicant is not prohibited from filing a conscientious objector application
does not mean that doing so will afford him the protection of that status,
especially since he clearly does not meet the legislative requirements
necessary to acquire it.
[54]
The
Officer’s finding that the protection of conscientious objector status was
available to the Applicant was also unreasonable because the Officer fails to
appreciate evidence before her indicating that, even if the Applicant were
eligible for conscientious objector status, this status would not actually offer
him any protection from the risks cited in his PRRA application. Based on the
affidavit of the U.S. attorney referred to above, persons who file
conscientious objector status applications are not protected from judicial
punishment, but rather are “subjected to severe punishments including lengthy
periods of incarceration” and both the military and civilian communities often
subject conscientious objectors to “persecution, punishment, vindictiveness,
and intimidation.” Yet, the Officer provides no reasons for her conclusion that
applying for conscientious objector status would somehow offer the Applicant
“protection”, despite expert evidence to the contrary. The Officer does not
express why he dismissed expert evidence that directly contradicts her conclusion
on this point.
[55]
Also
before the Officer was evidence that individuals similarly situated to the
Applicant filed conscientious objector status applications and that doing so
provided them with no protection from risks similar to those raised in the Applicant’s
application. In some cases, the application for conscientious objector status
was not admitted into evidence at the court-martial proceeding, while in others
the application was not even processed. Furthermore, three other affiants
indicated that identifying themselves publicly as conscientious objectors to
the Iraq war was the
reason for the uncharacteristically lengthy periods of incarceration for their
respective periods of absence. In one case, an affiant who had not even been absent from
the military at all believes that he was incarcerated because of his
application for conscientious objector status.
[56]
The
Officer ignored that evidence and failed to properly address it. Once again, I
agree with the Applicant that the Officer cited domestic avenues of protection
that were either not available to him or which would not provide any protection
from the risks he asserted. It is well-established that a decision maker must
make reference to and provide analysis of important evidence that directly contradicts
her findings. This duty to specifically reference the analysis of particular
evidence by the decision-maker increases with the relevance of this evidence to
the disputed finding. In the case at bar, I find that the failure of the
Officer to provide any assessment of the contradictory evidence before her
renders her decision unreasonable, as it does not meet the test of
justification, transparency and intelligibility.
[57]
For
all of the foregoing reasons, I am therefore of the view that the application for
judicial review of the negative PRRA decision ought to be granted.
- The H&C
decision
[58]
The
applicable standard of review with respect to decisions made on H&C
applications, when considered in their entirety, is reasonableness, since these
decisions essentially raise questions of fact or mixed questions of fact and
law. As already mentioned, reasonableness requires consideration of the
existence of justification, transparency and intelligibility in the
decision-making process. It is also concerned with whether the decision falls
within a range of acceptable outcomes, which are defensible in respect of the
facts and law: Dunsmuir v New Brunswick, 2008 SCC 9, at para
47. That being said, the question as to whether the Officer applied the proper
test when conducting her assessment of risk is a question of law reviewable on
the standard of correctness: see, for ex., Kim v Canada (Minister of
Citizenship and Immigration), 2008 FC 632, at para 24; Zambrano v Canada
(Minister of Citizenship and Immigration), 2008 FC 481, at para 30; Barrak
v Canada (Minister of Citizenship and Immigration), 2008 FC 962, at para
18.
a) Did the Officer err in law by
assessing risk in the Applicant’s H&C application under
thresholds applicable to ss. 96 and 97 of
the IRPA, and by failing to assess the hardship the Applicant would face
if returned to the U.S.?
[59]
The
Applicant contends that the Officer erred by limiting her analysis of hardship
to a risk analysis applicable to a PRRA or a refugee claim under sections 96
and 97 of IRPA. In other words, it is submitted that the Officer limited
her analysis to whether the Applicant would be afforded state protection in the
United States if returned and whether the Applicant had exhausted all domestic
avenues of state protection prior to requesting humanitarian and compassionate
relief in Canada, thereby requiring the Applicant to satisfy legal tests
applicable only to PRRA applications and refugee claims. By limiting her
analysis to these questions, it is submitted, the Officer failed to apply the
proper test for an H&C analysis by considering whether, regardless of any
state protection available to the Applicant, what he would experience upon
return would constitute hardship that warrants granting an exemption under
section 25(1) of the IRPA. I fully agree with this argument.
[60]
This
Court has held on numerous occasions that it is an error in law to conduct an
analysis applicable to a PRRA application or a refugee claim when deciding an
H&C application. This has been found to be an error because H&C
considerations involve a broader understanding of hardship than the risk
provisions set out in sections 96 and 97 of the IRPA: see Pinter v
Canada (Minister of Citizenship and Immigration), 2005 FC 296, at paras
5-6; Ramirez v Canada (Minister of Citizenship and Immigration), 2006 FC
1404, at paras 46-47.
[61]
In
her submissions, the Applicant explained that he would suffer severe
consequences upon return to the U.S., including incarceration, judicial
punishment, non-judicial punishment, and the economic consequences of a
dishonourable discharge from the U.S. military. The Applicant
further explained that he would suffer psychological and physical hardship as a
result of hazing from his peers and from his former commanders if returned to
the United
States
and as a result of imprisonment under harsh conditions in a military prison
without adequate recourse to medical treatment.
[62]
Yet,
the Officer failed to conduct any analysis of hardship when assessing these
risks. She did note on page 2 of her reasons that “risk is considered in the
context of the Applicant’s degree of hardship, and not sections 96 and 97” of IRPA,
but it is not sufficient for the Officer to simply state the appropriate test –
the Officer must in fact apply it. Despite the language of hardship used by the
Officer, her analysis actually takes the form of a risk assessment under the
tests normally applied to a PRRA application or a refugee claim.
[63]
The
Officer limited her analysis to whether the Applicant had rebutted the
presumption of state protection and had exhausted all avenues of protection
prior to claiming H&C relief. In the circumstances of an H&C
application, however, it is not necessary for an applicant to rebut a
presumption of adequate state protection. What an applicant must show is that
his or her circumstances warrant humanitarian and compassionate relief,
regardless of any available state protection.
[64]
While
state protection may be a relevant consideration in an assessment of an H&C
application, the officer erred when her analysis stopped with the consideration
of state protection. In contrast to a PRRA application or a refugee claim,
state protection is not a determinative factor. Deciding that state protection
may exist in a country of removal does not relieve the Officer from the task of
assessing whether, regardless of any available protection, the Applicant’s
circumstances warrant receiving an exemption from the requirements of the IRPA
based on humanitarian and compassionate considerations.
[65]
The
Officer’s assessment of both the judicial and non-judicial punishment to which
the Applicant would be subjected if returned to the U.S. is replete
with the notion that he would be afforded due process guarantees and that he
has not rebutted the presumption of state protection. Indeed, a comparison of
the reasons in the PRRA and H&C decisions reveals that they are identical,
except for the conclusion that the hardships the Applicant would face are not
unusual and undeserved or disproportionate. We are left to speculate as to why
the risk of experiencing harsh judicial and non-judicial punishment, regardless
of any due process available to the Applicant as recourse after experiencing
such punishment, would not constitute hardship that would warrant humanitarian
and compassionate relief.
[66]
There
is more. While it is true that judicial punishment in the form of a sentence
received at the completion of a court-martial proceeding is administered under
a law of general application, two of the risks specifically put forward by the
Applicant in his H&C submissions are not the result of legitimate
prosecution, but rather stem from experiences outside of the official military
justice system in the U.S. Specifically, the Applicant raised as factors
demonstrating unusual, undeserved and disproportionate hardship; hazing; and
the impact that hazing and imprisonment would have on him in light of his
post-combat Post-Traumatic Stress Disorder.
[67]
Hazing
is not punishment administered under a law of general application, but is
rather unofficial punishment administered by peers and commanders in the
military. As noted by the Officer in her reasons, hazing is technically
prohibited under Marine Corps regulations. Because hazing is not administered
under a law of general application and is not legitimate punishment, the
hardships associated with experiencing hazing are not addressed by a conclusion
that punishment under a law of general application and legitimate prosecution
do not amount to hardship in the H&C context. Furthermore, the ability to
complain about mistreatment after it has occurred does not alleviate the
hardships associated with experiencing that mistreatment in the first place.
[68]
It
is notable that the Officer does not find that the Applicant would not be
subjected to hazing, or that there is insufficient evidence to support that the
Applicant would be subjected to hazing. The Officer merely concludes that he
could complain about such treatment after the fact. She fails to engage with
the idea that experiencing hazing, whether or not it is officially prohibited
or whether or not the perpetrators are eventually punished, could constitute
hardship.
[69]
Moreover,
the Officer failed to adequately analyze the hardship that the Applicant would
suffer in terms of stigma, mistreatment, discrimination, and potential violence
at the hands of both members of the military (as a result of desertion and his
mental health problems) and members of the public (who may be critical of his
having left the army). The Officer does not grapple with these issues in order
to examine what kind of hardship the Applicant might encounter. Rather, the
Officer blithely concludes that state protection exists to punish anyone who is
violent towards the Applicant (after the fact), and that those who might harass
or insult him would simply be exercising their freedom of expression.
[70]
The
Officer accepts that the Applicant may spend time in military custody including
time in incarceration in a military prison, but she does not address the
Applicant’s submission that incarceration would have a disproportionate impact
on him because of his mental health condition. The Officer’s conclusion – that
punishment under a law of general application does not amount to hardship
because the H&C process should not be used to circumvent legitimate prosecutions
in a democratic country – does not address several important questions, namely
whether being in a military custody would have a disproportionate impact on the
Applicant because of his mental health condition, whether persons with mental
health conditions are stigmatized and mistreated by members of the U.S.
military, and whether the Applicant would be denied proper medical care by the
military for his condition. The Officer does address whether civilians in the U.S. are provided
with adequate mental health treatment and whether mental health treatment is
part of the primary civilian health care system in the U.S. However, the
Officer does not address mental health care or the stigma attached to mental
health conditions within the U.S. military, and certainly does not address what
care or treatment is provided when an individual is detained or incarcerated by
the U.S. military.
[71]
Finally,
and perhaps even more importantly, the Applicant argues that the Officer failed
to consider the primary basis for his H&C application. The Applicant
asserted that he would be subjected to differential and more severe punishment
because of his outspoken criticisms of the war in Iraq from within Canada; this was
one of the fundamental bases of his claim for humanitarian and compassionate
relief. The main reason that the Applicant even found himself in a position to
be applying for permanent residence from within Canada was his reason for
leaving the United
States
military in the first place. Despite the fact that the Applicant’s strong moral
and political objections to continued service in the Marine Corps permeated the
entirety of his evidence and submissions, as well as being a critical component
of his personal circumstances, the Officer does not address or assess these
beliefs in relation to the punishment that the Applicant faces in the United
States. At no point in the Officer’s reasons does she consider whether
punishment, even if administered under a law of general application, would
constitute unusual and undeserved or disproportionate hardship in light of the
sincerely held moral and political beliefs that motivated the Applicant to
leave the U.S. military and
his native country.
[72]
It
is no doubt true that conscientious objection based on political, moral, or religious
grounds does not yet provide a sufficient basis on which to establish a claim
for refugee protection. That being said, there is clearly a trend towards
accepting that punishing people who refuse military service on conscientious
grounds amounts to persecution: Hinzman v Canada (Minister of
Citizenship and Immigration), 2006 FC 420, at paras 232-233; Lebedev
v Canada (Minister of
Citizenship and Immigration), 2007 FC 728, at paras 47-50.
Notwithstanding the fact that punishment for refusing to serve in the military
as a result of sincerely held objection to a particular war does not constitute
persecution under Canadian law, the Officer was nevertheless required to
determine whether the judicial and non-judicial punishments faced by the
Applicant if returned to the U.S. because of his sincerely-held beliefs, as
well as the hazing and the imprisonment while suffering from PTSD, amounted to
unusual and undeserved or disproportionate hardship.
[73]
Indeed,
I am supported in this view by the recent decision of the Federal Court of
Appeal in Hinzman v Canada (Minister of
Citizenship and Immigration), 2010 FCA 177. There, the Court found that
the Officer had committed the same error as the Officer in the case at bar, in
that he had failed to have regard to the evidence concerning the Applicant’s
sincere moral, political, and religious objections to service with the U.S.
military in Irak. I find that the same can be said in the case at bar. The
Officer has not properly moved beyond the question of state protection to
address the hardship factors raised by the Applicant’s circumstances, and could
not properly address whether relief should be granted to the Applicant under
section 25(1) of the IRPA with humanitarian and compassionate values in
mind, without addressing the sincere moral and political objections that
motivated the Applicant to refuse continued service in the U.S. military and
come to Canada in the first place.
b) Did the Officer err in law by failing
to have regard to the totality of the evidence before
her, including ignoring
contradictory evidence and misconstruing evidence?
[74]
The
Officer noted that the Applicant did not access a specific avenue of protection
that she deems would have been available to him – namely, filing a
conscientious objector status as “protection” from judicial and non-judicial
punishment. For reasons already stated in the context of my analysis with
respect to the PRRA, this finding was unreasonable in light of the evidence on
the record.
[75]
Not
only was this option of filing a conscientious objector status not available to
the Applicant, but doing so could well have increased the hardships asserted by
the Applicant instead of protecting him. Based on an affidavit from an expert
in U.S. military
law, it appears that persons who file conscientious objector status
applications are not protected from judicial punishment but rather are
subjected to severe punishments including lengthy periods of incarceration and
that furthermore, both the military and civilian communities subject conscientious
objectors to persecution, punishment, vindictiveness, and intimidation. The
Officer does not mention this evidence in her reasons and provides no
explanation for her conclusion that applying for conscientious objector status
would somehow offer the Applicant protection, or more importantly, why applying
for that status would reduce any of the hardships listed by the Applicant in
his submissions. Since the decision maker did not make reference to and provide
analysis of this important evidence which directly contradicts her findings,
her decision cannot be but unreasonable: Cepeda-Guiterrez v Canada (Minister
of Citizenship and Immigration), [1998] F.C.J. No. 1425, at paras 15-17
(F.C.A.); Ranji v Canada (Minister of Public
Safety and Emergency Preparedness), 2008 FC 521, at paras 26-28.
[76]
In
addition to her failure to address the evidence provided by the expert on the
question of conscientious objector status, the Officer also failed to address
on this point evidence provided from four individuals who attempted to file
conscientious objector status applications, and for whom these applications
provided no protection. By failing to recognize that filing a conscientious
objector status application would not in any way alleviate any of the hardships
asserted by the Applicant, by failing to recognize that the Applicant does not
qualify as a conscientious objector under the applicable Army regulation, and
by ignoring evidence that filing such an application may in fact increase the
hardship suffered by the Applicant, the Officer’s decision is unreasonable in
that it does not meet the standard of justification, transparency and
intelligibility.
c) Did the Officer make an unreasonable
decision by providing insufficient reasons for his
findings, thereby rendering his
decision unreasonable?
[77]
The
Applicant argued that the Officer failed to give reasons for many of her
conclusions, and especially for her finding that the Applicant would not be
subjected to disproportionate punishment based on his public opposition to the
war in Iraq. This
argument is essentially the same as that made by the Applicant in the context
of his application for judicial review of the PRRA decision, and also mirrors
much of the previous argument in this application for judicial review. For
those reasons, I do not think it would be of much use to add anything to what I
have already stated.
5. Conclusion
[78]
For
all of the foregoing reasons, I find that both applications for judicial review
ought to be granted. At the hearing, counsel for the Respondent reserved the
right to propose questions for certification purposes if my reasons were to
break new ground or diverge from previous decisions of the Federal Court of
Appeal. Since this is clearly not the case, there is no basis to certify a question.
JUDGMENT
THIS COURT’S
JUDGMENT is that these applications for judicial review are granted. No
question of general importance is certified. A copy of these reasons shall be
place in both files IMM-5527-08 and IMM-5528-08.
“Yves de Montigny”
_________________________________
Judge
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