Date: 20080626
Docket: IMM-5059-07
Citation: 2008 FC 805
Ottawa, Ontario, June 26,
2008
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
JUSTIN
COLBY
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of Immigration Division of
the Immigration and Refugee Board (the Board), pursuant to subsection 72(1) of
the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), dated
October 26, 2007. The Board found that the applicant, Justin Colby, is not a
Convention refugee or a person in need of protection.
ISSUES
[2]
The
applicant raises three issues in the case at bar:
a) Did the Board
err by ignoring or misconstruing evidence?
b) Was there a
breach of natural justice resulting from the applicant’s ineffective counsel?
c) Did the Board
err in its determination of the facts?
[3]
It
is my opinion that the determinative question is the following: Did the Board
err in determining that the applicant failed to avail himself of the protection
of his state?
FACTUAL BACKGROUND
[4]
The
applicant is a citizen of the United States. On May 6, 2003, he
joined the US Army as a medic. He believed he was doing a good thing in
combating terrorists, particularly those responsible for the attacks on the World Trade Center on September
11, 2001. He completed his basic training and was deployed for a year to South Korea.
[5]
In
July 2004, the applicant was ordered deployed to Iraq. While he
was on pre-deployment leave, he spoke with his uncle, a university professor,
who informed him that no weapons of mass destruction were found in Iraq and that
Iraqis had no involvement in the September 11 attacks. The applicant expressed
his belief to his First Sergeant that the troops were being lied to. He was
told not to question the chain of command.
[6]
After
arriving in Kuwait, the
applicant was informed by the First Sergeant that the Secretary of Defence was
expected to conduct a review of the personnel. The applicant was told that he
was expected to express support for the mission. All who disagreed were asked
to raise their hands, which the applicant did. As punishment for his public disagreement,
the applicant was subject to an off-the-books form of discipline, referred to
as “smoking”.
[7]
Following
this, the applicant attended the chaplain’s office, where it was suggested to
him that he might obtain status as a conscientious objector. When he approached
the First Sergeant regarding the possibility, he was told that conscientious
objector status was reserved for people who refused to pick up a gun. The First
Sergeant called him a “domestic terrorist”. The applicant was also told that he
could be prosecuted under the Uniform Code of Military Justice for his dissent.
[8]
The
applicant arrived in Iraq in August 2004, where he worked as a
medic. In this capacity, he performed administrative tasks and attended to
patients in a medical capacity. He was given Iraqi patients on whom to
“practice” procedures which were outside of the scope of practice allowed of a
medic, including tracheotomies, intubations, chest tubes and veinous cutdowns. The
applicant was required to perform these procedures on Iraqi patients without
administering anaesthetic. He was told that the use of anaesthetic on
terrorists was a waste. Patients who were labelled as combatants, as opposed to
civilians, were denied anaesthetics, and the applicant recalled 11 and 12 year
old children being labelled as combatants. The applicant described these acts
as atrocities.
[9]
The
applicant’s unit left Iraq in August 2005 and he was stationed in the
US. He left
the Army in July 2006, and arrived in Canada on September 18, 2006,
where he claimed refugee status.
DECISION UNDER REVIEW
[10]
The
Board began its decision by reviewing the background and allegations of the
claim. The facts relating to the applicant’s views and military service were
provided in some detail. However, all of the applicant’s allegations in
his Personal Information Form (PIF) regarding the acts which he was required to
perform as a medic are not mentioned.
[11]
The
Board found, as a preliminary matter, that it was bound by the decision of the
Federal Court in Hinzman v. Canada (Minister of Citizenship and Immigration),
2006 FC 420, [2006] F.C.J. No. 521, which held that the legality of the war in
Iraq is not a relevant consideration in the determination of a refugee claim.
[12]
In
its analysis, the Board determined that the ground for the applicant’s claim
was political opinion. The Board concluded that the applicant is not a
Convention refugee or a person in need of protection. The determinative issue
was found to be state protection. The Board determined that it was bound by the
decision of the Federal Court of Appeal in Hinzman v. Canada (Minister of
Citizenship and Immigration); Hughey v. Canada (Minister of Citizenship
and Immigration), 2007 FCA 171, 362 N.R. 1 (Hinzman), with regard to
an applicant seeking refugee protection because he objects to participate in a
war for reasons of conscience. The findings of this decision were reviewed at
length. Notably, the Board considered the conclusion of the Court of Appeal
that an applicant must adequately attempt to access his or her home state’s
mechanisms of protection before a claim for protection can succeed.
[13]
In
light of this case, the Board determined that the applicant’s preliminary
inquiries into obtaining conscientious objector status fell short of meeting
the burden to rebut the presumption of state protection. The Board noted the
existence of judicial and military mechanisms which the applicant could have
accessed. The Board reviewed documentary evidence dealing with the ways in
which military deserters are usually disciplined if they avail themselves of
these mechanisms, and noted that a lenient approach is taken in the majority of
cases.
[14]
The
Board noted that punishment for desertion is given in accordance with laws of
general application after a court martial or other due process. It took notice
of the existence of a right to counsel and to an open and transparent hearing.
[15]
The
submissions of the applicant’s counsel, Mr. Jeffry House, were examined. The
Board found that no grounds were provided upon which the present case could be
distinguished from Hinzman, and that no facts were raised which might
provide evidence of a lack of state protection.
[16]
The
Board concluded that the applicant did not exhaust all recourse available to
him in the US and that no
exceptional circumstances existed which would exempt him from the requirement
of seeking protection there.
ANALYSIS
Standard of Review
[17]
Whether
the Board erred in its assessment of state protection is reviewable on a
standard of reasonableness (Chaves v. Canada (Minister of
Citizenship and Immigration), 2005 FC 193, [2005] F.C.J. No. 232; Dunsmuir
v. New
Brunswick,
2008 SCC 9, at paragraphs 55, 57, 62, and 64). For a decision to be reasonable
there must be justification, transparency and intelligibility within the
decision making process. The decision must fall within a range of possible,
acceptable outcomes which are defensible in respect of the facts and the law (Dunsmuir,
above at paragraph 47).
Did
the Board err in determining that the applicant failed to avail himself of the
protection of his state?
[18]
The
applicant raises a number of issues in his memorandum; however, the determinative
issue found by the Board was state protection.
[19]
The
essence of the applicant’s application challenges the Board’s determination
that there was no evidence before it upon which the case at bar could be
distinguished from Hinzman. Particularly, the applicant argues that his
claims of mistreatment of Iraqi patients constitute special circumstances,
which serve to distinguish the case at bar from the Hinzman line of
cases. He submits that in light of paragraph 171 of the UNHCR Handbook on
Procedures and Criteria for Determining Refugee Status (UNHCR Handbook),
the Board erred by failing to consider his particular circumstances.
[20]
The
UNHCR Handbook acknowledges that, as a general rule, prosecution of deserters does
not amount to persecution. However, paragraph 171 provides a caveat:
171. Not every conviction, genuine though
it may be, will constitute a sufficient reason for claiming refugee status
after desertion or draft-evasion. 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 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.
[21]
Paragraph
171 of the UNHCR Handbook deals with the question of persecution, and
not the availability of state protection. The Court of Appeal in Hinzman,
stated that state protection is the first step in assessing the existence of
objective fear. Justice Sexton of the Federal Court of Appeal laid out the
analytical framework for evaluating the availability of state protection at
paragraph 42 of the decision:
[42] The appellants say they fear
persecution if returned to the United
States. However,
to successfully claim refugee status, they must also establish that they have
an objective basis for that fear: Ward at page 723. In determining
whether refugee claimants have an objective basis for their fear of
persecution, the first step in the analysis is to assess whether they can be
protected from the alleged persecution by their home state. As the Supreme
Court of Canada explained in Ward at page 722, "[i]t is clear that the
lynch-pin of the analysis is the state's inability to protect: it is a
crucial element in determining whether the claimant's fear is
well-founded." [Emphasis [underlining] in original.] Where sufficient
state protection is available, claimants will be unable to establish that their
fear of persecution is objectively well-founded and therefore will not be
entitled to refugee status. It is only where state protection is not available
that the court moves to the second stage, wherein it considers whether the
conduct alleged to be persecutory can provide an objective basis for the fear
of persecution. If indeed the illegality of the war is relevant, it is at
this second stage that the court would consider it. However, because I have
determined that the appellants are unable to satisfy the first stage of the
analysis, that is, that the United States is incapable of protecting them, it
is unnecessary to consider the issues arising in the second stage, including
the relevance of the legality of the Iraq
war. [Emphasis added in bold].
[22]
Therefore,
the facts raised by the applicant that would fall under paragraph 171 of the
UNHCR Handbook are relevant only if he can establish that state protection is
unavailable to him.
[23]
On
this issue (state protection), I am of the opinion that the Board's
determination is reasonable.
[24]
The
respondent highlights the fact that the applicant asked his First Sergeant
about the possibility of obtaining status as a conscientious objector, but made
no further inquiries. The Board concluded that “Mr. Colby’s tentative and
preliminary inquiries as to obtaining conscientious objector status fall far
short of exhausting all of his remedies in his own country, prior to seeking
the international surrogate protection of refugee status.” As a person
from a democratic country, the applicant was required to exhaust all forms of
recourse available to him domestically. This is confirmed at paragraph 57 of Hinzman:
Kadenko and Satiacum together teach that
in the case of a developed democracy, the claimant is faced with the burden of
proving that he exhausted all the possible protections available to him and
will be exempted from his obligation to seek state protection only in the event
of exceptional circumstances: Kadenko at page 534, Satiacum at
page 176. Reading all these authorities together, a claimant coming from a
democratic country will have a heavy burden when attempting to show that he
should not have been required to exhaust all of the recourses available to him
domestically before claiming refugee status. In view of the fact that the United States is a democracy that has
adopted a comprehensive scheme to ensure those who object to military service
are dealt with fairly, I conclude that the appellants have adduced insufficient
support to satisfy this high threshold. Therefore, I find that it was
objectively unreasonable for the appellants to have failed to take significant
steps to attempt to obtain protection in the United States before claiming refugee status in Canada.
[25]
I
agree with the respondent’s contention that the applicant’s claim is materially
indistinguishable from the decision in Hinzman except that in the case
at bar, the applicant is a medic who was deployed to Iraq instead of a
foot soldier who deserted after his unit had been deployed to that country.
[26]
Finally,
I would add that the applicant had the opportunity at the hearing to address, give
details or be questioned about his ordered inhumane actions while in Iraq but failed
to do so (Tribunal Record, pages 692 to 695). The Board cannot be faulted for
not mentioning the entire applicant PIF’s allegations in its reasons. The
applicant has to bear the consequences of the legal strategy adopted by his
former counsel.
[27]
The
Applicant
proposes the following questions for certification:
1.
Does a soldier who refuses to continue to serve in the military because of
being required to personally participate in actions contrary to international
humanitarian law, come within the special exception provided in paragraph 171
of the UNHCR Handbook?
2.
Could a person in this situation be granted refugee protection if facing
punishment for desertion for his refusal to engage in actions contrary to
international humanitarian law?
[28]
The
respondent is opposed to these questions being certified. It is my opinion that
they are not determinative of an appeal in this matter.
JUDGMENT
THIS COURT
ORDERS that the application for
judicial review be dismissed. No question is certified.
“Michel
Beaudry”
Email this Content