Date: 20100706
Docket: A-276-09
Citation: 2010 FCA 177
CORAM: NOËL
J.A.
DAWSON J.A.
TRUDEL
J.A.
BETWEEN:
JEREMY DEAN HINZMAN
NGA THI NGUYEN and
LIAM LIEM NGUYEN HINZMAN
Appellants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
TRUDEL J.A.
Introduction
[1]
Mr.
Hinzman is an American soldier who holds strong moral and religious beliefs
against “all participation in war” (Hinzman’s affidavit, appeal book, volume 1,
page 143, at paragraphs 18 and 44). He left the United States upon learning
that his unit would be deployed to Iraq
and has been absent without leave [AWOL] from the United States Army since his
arrival in Canada on 3 January 2004. He was
accompanied by his wife Ms. Nguyen and their son Liam, also United States citizens [together the
appellants].
[2]
The
appellants unsuccessfully claimed refugee status, asserting that they had a
well-founded fear of persecution in the United States, based upon Mr. Hinzman’s political
opinion (see: Hinzman v. Canada (Minister of Citizenship and Immigration);
Hughey v. Canada (Minister of Citizenship and Immigration), 2007 FCA 171 leave
to appeal to the Supreme Court of Canada refused, [2007] S.C.C.A. No. 321.
[3]
Then, the appellants
filed a Pre-Removal Risk Assessment (PRRA) application and an
application for permanent residence from within Canada under section 25 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) on humanitarian and
compassionate (H&C) grounds. Subsection 25(1) provides:
|
Humanitarian
and compassionate considerations
25. (1) The Minister
shall, upon request of a foreign national in Canada who is inadmissible or
who does not meet the requirements of this Act, and may, on the Minister’s
own initiative or on request of a foreign national outside Canada, examine
the circumstances concerning the foreign national and may grant the foreign
national permanent resident status or an exemption from any applicable
criteria or obligation of this Act if the Minister is of the opinion that it is
justified by humanitarian and compassionate considerations relating to them,
taking into account the best interests of a child directly affected, or by
public policy considerations.
|
Séjour
pour motif d’ordre humanitaire
25. (1) Le ministre doit, sur demande
d’un étranger se trouvant au Canada qui est interdit de territoire ou qui ne
se conforme pas à la présente loi, et peut, de sa propre initiative ou sur
demande d’un étranger se trouvant hors du Canada, étudier le cas de cet
étranger et peut lui octroyer le statut de résident permanent ou lever tout
ou partie des critères et obligations applicables, s’il estime que des
circonstances d’ordre humanitaire relatives à l’étranger — compte tenu de
l’intérêt supérieur de l’enfant directement touché — ou l’intérêt public le
justifient.
|
[4]
PRRA
Officer S. Parr (the Officer or H&C Officer) issued negative decisions in
both applications, respectively on 25 and 22 July 2008. The appellants did not
pursue judicial review of the negative decision in their PRRA application. They
were granted a stay of removal pending the disposition of their application for
leave and for judicial review of their H&C application.
[5]
This
appeal arises from a judgment by Russell J. (the Applications Judge) of the
Federal Court, issued on 2 June 2009 (Docket: IMM-3813-08) following the
release of reasons on 24 April 2009 (Reasons) (2009 FC 415). The Applications
Judge dismissed the application for judicial review of the Officer’s H&C
decision refusing the appellants’ application for permanent residence from
within Canada.
The certified question
[6]
This
appeal comes to our Court by way of paragraph 74(d) of the Act because
the Applications Judge, in rendering judgment, certified that a serious
question of general importance, that is one which would be dispositive of the
appeal, was involved:
Can
punishment under a law of general application for desertion, when the desertion
was motivated by a sincere and deeply held moral, political and/or religious
objection to a particular war, amount to unusual, undeserved or
disproportionate hardship in the context of an application for permanent
residence on humanitarian and compassionate grounds?
[7]
The
appellants invite this Court to give a favourable answer to the certified
question and to find that the H&C Officer failed to have regard to Mr.
Hinzman’s personal circumstances, including his sincerely held moral, political
and religious objections to service with the United States Army in Iraq (appellants’
memorandum, at paragraph 60).
[8]
The
respondent argued that the certified question is not dispositive of the appeal
because the H&C Officer did not, in her reasons, preclude the possibility
that punishment under a law of general application could warrant H&C relief
under subsection 25(1) of the Act. The H&C Officer, upon a careful analysis
of the facts, simply found no hardship in this case. The respondent submitted
that the appeal should be dismissed on this basis. In any event, the respondent
adds that the H&C Officer considered all relevant factors, including Mr.
Hinzman’s motivations.
[9]
We
indicated in open Court that the question whether the appeal should be
dismissed on the basis that the question was deficient would be decided after
hearing all the arguments raised as appeal.
[10]
It
is trite law that the absence of a serious question that is dispositive of the
appeal means that the “pre-condition to the right of appeal has not been met” (Varela
v. Canada (Citizenship
and Immigration, 2009 FCA 145, at paragraph 43).
[11]
In
the same vein, our Court has held that:
The corollary of the fact that a [certified]
question must be dispositive of the appeal is that it must
be a question which has been raised and dealt with in the decision below.
Otherwise, the certified question is nothing more than a reference of a question
to the Court of Appeal. If a question arises on the facts of a case before
an applications judge, it is the judge's duty to deal with it. If it does
not arise, or if the judge decides that it need not be dealt with, it is not an
appropriate question for certification (Zazai v. Canada (Minister of Citizenship and Immigration), 2004 FCA 89, at paragraph 12) [Zazai].
[Emphasis
added.]
[12]
At the
same time, once a question has been properly certified, the Court of Appeal may
consider all aspects of the appeal (Baker v. Canada (Minister of Citizenship
and Immigration), [1999] 2 S.C.R. 817).
[13]
In
this matter, the certified question clearly arose on the facts of the case and
its subject matter was a live issue between the parties.
[14]
Throughout
the proceedings, the appellants submitted that Mr. Hinzman risked facing
unusual, undeserved and disproportionate hardship if returned to the United
States.
It was argued that if Mr. Hinzman were subjected to a court-martial proceeding
and charged with being AWOL or desertion, that he would receive a more severe
punishment than other deserters because of his political opinion regarding the
war in Iraq and his
choice to speak out publicly about it.
[15]
Also,
the appellants argued that any additional incarceration that Mr. Hinzman
receives, because of his political opinion, be it even one additional day,
constitutes the application of a law of general application in a persecutory
manner, regardless of any due process or state protection available to him (see
counsel submissions on the PRRA and H&C applications, appeal book, volume
1, at pages 307 and 139). International human rights organizations would
consider him a prisoner of conscience if returned to the United
States
and imprisoned for his desertion.
[16]
Nonetheless,
the Applications Judge, neither attempted to, nor dealt with these arguments
leaving this Court to address them in first instance by way of the certified
question.
[17]
In
Zazai, cited above, the certified question was also not dealt with by
the Applications Judge. Our Court found that the parties would be best served
by having the matter addressed at first instance in the Federal Court and
therefore returned the file for redetermination on that basis.
[18]
I
would be inclined to do the same in this case were it not for the fact that
regardless of the answer to the question, I have found that the Applications
Judge committed an independent error in not holding that the H&C Officer
had failed “to have regard to the evidence concerning [Mr. Hinzman’s] sincere
moral, political and religious objections to service with the U.S. Military in
Irak” (appellants’ memorandum of facts and law, at paragraph 12).
[19]
As
I agree with the appellants and conclude that the Applications Judge erred in
finding that the H&C Officer committed no error and that she went beyond
risk to consider hardship in the context of the appellants’ H&C application
(Reasons, at paragraph 79) I propose to allow this appeal and to return the
matter for redetermination by a different officer.
Analysis
The PRRA decision
[20]
The
H&C Officer was also the decision-maker for the appellants’ PRRA
application, which she dismissed because she was not satisfied that the risk
factors alleged existed or were serious enough to grant protection (PRRA
decision, appeal book, volume 3, at pages 931-952).
[21]
Before
dismissing the PRRA application, the Officer analyzed the evidence adduced by
the appellants in light of “common considerations applicable to both sections
96 (Convention Refugee) and 97 (person in need of protection) of [the Act]: Law
of General Application; and State Protection” (ibidem, at page 940).
[22]
As
far as the law of general application was concerned, the Officer looked, in
particular, at the Uniform Code of Military Justice (UCMJ, 64 Stat. 109,
10 U.S.C. Chapter 47) and its punitive articles relating to desertion and AWOL
(articles 85-87) and ultimately found:
… that the possibility of prosecution
under a law of general application is not, in and of itself, sufficient
evidence that an applicant has a well-founded fear of persecution. The PRRA
application is not an avenue to circumvent lawful and legitimate prosecutions
commenced by a democratic country” (PRRA decision, supra, at page 943).
[23]
Regarding
state protection, the Officer, while affording some weight to Amnesty International’s
statement that Mr. Hinzman, if removed and imprisoned, would be considered a prisoner
of conscience, concluded:
… based on my
analysis of the available state protection for the principal applicant in the
military justice system, I do not find… convincing evidence that the United
States
is unable or unwilling to provide protection to [Mr. Hinzman] (ibidem,
at page 948).
[24]
The
appellants did not seek leave to apply for judicial review of the PPRA decision
and therefore its merits are not before our Court. However, these findings read
in the context of the PRRA decision are important as they are repeated in and
constitute the basis of the H&C decision (H&C decision, appeal book,
volume 1, tab 4, at page 59).
The H&C decision
[25]
There lies
the difficulty with the Officer’s H&C decision. While dealing with the PRRA
application, the Officer had to (a) give consideration to any of the
appellants’ (then failed refugees) new, credible, relevant and material
evidence of facts that might have affected the outcome of their refugee claim
hearing if this evidence had been presented and, (b) assess the risk against
the country of removal (Raza v. Canada (Minister of Citizenship and
Immigration), 2007 FCA 385).
[26]
However,
when dealing with the appellants’ H&C application, the H&C Officer
needed to have regard to public policy considerations and humanitarian grounds,
including family-related interests (Baker, supra, at paragraphs
14-17 and 75; Okoloubu v. Canada (Minister of Citizenship and Immigration),
2008 FCA 326, at paragraphs 46 and 48-49).
[27]
In my
view, the appellants are right when they state that “the Officer’s analysis is
really nothing more than a risk assessment which stops short at the
availability of state protection and due process” (appellants’ memorandum, at
paragraph 69).
[28]
At the outset
of her reasons, the Officer declares that “the appellants’ H&C application
has been assessed on the basis of unusual and undeserved, or disproportionate
hardship” (H&C decision, ibidem). It is common ground that this is
the appropriate test.
[29]
She then
reasserts her previous findings made in the PRRA decision regarding the law of general
application and state protection. She writes:
It is
important to note that the possibility of prosecution for a law of general application
is not, in and of itself, sufficient evidence that an applicant will face
unusual and undeserved, or disproportionate hardship. The H&C application
is not an avenue to circumvent lawful and legitimate prosecutions commenced by
a democratic county (ibidem, at pages 62-63; see also Applications
Judge’s Reasons, at paragraph 73).
[30]
However,
she never turns her mind to the thrust of the H&C application: will Mr.
Hinzman be subjected to disproportionate hardship if returned to the United States, regardless of the existence
of a law of general application or state protection and notwithstanding other
findings on differential treatment and due process? [the key issue] (see
counsel’s submissions in the H&C application, appeal book, volume 1, at
pages 125 and following).
The Federal Court decision
[31]
The
Officer’s failure to address Mr. Hinzman’s motivations was a formal ground of
complaint by the appellants. See paragraph 57 of the Applications Judge’s
Reasons:
[57] The
Applicants also submit that the Officer failed to address the motivations of
the Principal Applicant in coming to Canada
or the fact that he would be a prisoner of conscience if returned to the U.S.
and incarcerated upon returning to the U.S.
[32]
Yet, the Applications
Judge provides no further comments on the alleged error or key issue except implicitly,
as counsel for the respondent contends, citing paragraphs 76 and 77 of the Reasons
where the Applications Judge expresses his view that it cannot “be said that
the Officer’s analysis stops at risk assessment and the availability of state
protection and due process.”
[33]
Paragraphs
76 and 77 of the Applications Judge’s Reasons read as follows:
[76] When
read in the context of the whole Decision it is clear to me that the Officer
considers hardship from two perspectives:
1.
She
looks at the prosecutorial and military processes that the Principal Applicant
will face and concludes that they cannot be considered unusual, undeserved or
disproportionate hardship because the United States is merely applying laws
of general application and the Principal Applicant will be able to avail
himself of due process. Lawful and legitimate prosecution cannot, per se,
be unusual, undeserved or disproportionate hardship; and
2.
She
considers and concludes that accessing due process and state protection will
not be a hardship.
[77] In
other words, I do not think it can be said that the Officer’s analysis stops at
risk assessment and the availability of state protection and due process.
[34]
Then, the
Applications Judge, at paragraph 81 of his Reasons, goes on, finding that the Officer:
… comes to the conclusion that
the hardships attached to laws of general application in a democratic state
cannot be considered as unusual and undeserved or disproportionate under
Canadian law. She appropriately addresses hardship for both judicial and
non-judicial punishment. I have no authority before me to suggest that she was wrong
or unreasonable in these conclusions.
[35]
Considering
hardship from the point of view or judicial and non-judicial punishment failed
to resolve the key issue. The result of that failure is that an entire and
central H&C factor raised by the appellants in their application was
overlooked by the Officer as well as by the Applications Judge.
[36]
The
beliefs and motivations of Mr. Hinzman were of important significance to the
ultimate decision, given the context of an H&C application. The appellants
had also provided some evidence that the right to conscientious objection “is
an emerging part of international human rights law” (Zolfagharkhani v.
Canada (Minister of Employment and Immigration), [1993] 3 F.C. 540 (FCA),
at paragraph 15). The Officer had given some weight in her PRRA decision to the
views of Amnesty International. Still, there is no assessment of these factors
in her H&C decision.
[37]
The
Minister’s policy and judicial guidelines for processing applications to remain
in Canada based on H&C grounds clearly provide that when assessing a
request, officers “must … indicate that all factors have been analysed and
explain the weight given to each of these factors and why” before conducting “a
balancing exercise between the positive H&C factors identified and the
facts that weight against granting an exemption” (Inland Processing Policy
Manual, Chapter 5, Immigrant Applications in Canada made on Humanitarian or
Compassionate Grounds, Appendix B.)
[38]
I adopt
the reasoning of my colleague Evans J., then a judge of the Federal Court,
that:
… the more
important the evidence that is not mentioned specifically and analyzed in the …
reasons, the more willing a court may be to infer from the silence that the
agency made an erroneous finding of fact “without regard to the evidence”” (Cepeda-Gutierrez
v. Canada (Minister of Citizenship and Immigration), [1998] A.C.F. no 1425,
at paragraph 17).
Conclusion
[39]
My
conclusion should not be seen as altering the discretion of officers making
decisions on section 25 applications, nor as giving the appellants a “right to
a particular outcome or to the application of a particular legal test” (Suresh
v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1; [2002] 1
S.C.R. 3).
[40]
However, the
H&C Officer had the duty to look at all of the appellants’ personal
circumstances, including Mr. Hinzman’s beliefs and motivations, before
determining if there were sufficient reasons to make a positive H&C
decision (ibidem, Chapter 5, section 11.3). She did not. Had the
Applications Judge addressed the appellants’ ground of complaint, as stated at
paragraph 57 of his Reasons, I am convinced that he would have concluded as I
do and found that the H&C decision was significantly flawed and therefore
unreasonable.
[41]
Consequently,
I propose to allow the appeal and, rendering the judgment that the Federal
Court ought to have rendered, I would set aside the decision of the Officer
denying the appellants’ H&C application and I would refer the application
back for redetermination by a different officer in accordance with these
reasons.
“Johanne
Trudel”
“I
agree
Marc Noël J.A.”
“I
agree
Eleanor R. Dawson J.A.”
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