Date: 20070430
Dockets: A-182-06
A-185-06
Citation: 2007 FCA 171
CORAM: DÉCARY
J.A.
SEXTON
J.A.
EVANS
J.A.
Docket: A-182-06
BETWEEN:
JEREMY HINZMAN (A.K.A. JEREMY DEAN
HINZMAN)
LIAM LIEAM NGUYEN HINZMAN (A.K.A. LIAM
LIEM NGUYE HINZMAN)
AND NGA THI NGUYEN
Appellants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
Docket: A-185-06
BETWEEN:
BRANDON DAVID HUGHEY
Appellant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
SEXTON J.A.
INTRODUCTION
[1]
Jeremy
Hinzman and Brandon Hughey voluntarily enlisted to serve in the United States military. During their time
in the military, they developed an objection to the war in Iraq, resulting in their belief that it is
illegal and immoral. After learning that their units would be deployed to Iraq,
they deserted the military and came to Canada, where they made claims for refugee
status.
[2]
The Refugee
Protection Division of the Immigration and Refugee Board (the “Board”) considered
the claims of Mr. Hinzman and Mr. Hughey (collectively referred to in these
Reasons as the “appellants”) for refugee status and held that the appellants are
not Convention refugees or persons in need of protection, as set out in the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”). The Board therefore
concluded that the appellants are not entitled to stay in Canada as refugees.
[3]
In the
Federal Court, Mactavish J. dismissed applications for judicial review by the
appellants and certified a question which appears later in these Reasons (Hinzman
v. Canada (Minister of Citizenship and
Immigration),
2006 FC 420, Hughey v. Canada (Minister of Citizenship and Immigration), 2006 FC 421).
[4]
The
appellants now appeal to this Court. However, for the reasons that follow, I see
no reason to depart from the conclusions of the Board and Mactavish J. that the
appellants are not entitled to refugee status. Accordingly, I would dismiss the
appeals.
[5]
These Reasons
are given in respect of both appeals (A-182-06 and A-185-06). A copy will be
placed in the file of each appeal.
FACTS
IN THE HINZMAN APPEAL
[6]
In late
2000, Jeremy Hinzman enlisted for a four-year term in the U.S. Army. Mr.
Hinzman’s decision to join the military was motivated both by the fact that the
military would provide him with financial assistance that would allow him to
attend university upon completion of his term of enlistment and by his belief
that the Army had a higher or noble purpose of doing good things. He chose specifically
to become an infantryman because he wanted “to experience the essence of the Army.”
[7]
Prior to
enlisting in the Army, Mr. Hinzman had apparently explored Buddhism. Nevertheless,
at the outset of his military service, it appears he did not have any reservations
about bearing arms or otherwise fulfilling his duties as a soldier.
[8]
However,
during basic training, Mr. Hinzman testified that he underwent a process of
desentization intended to dehumanize the enemy that caused him to start to
question his involvement with the military.
[9]
After
completing training, Mr. Hinzman was posted to Fort Bragg. Although he excelled as a soldier, Mr.
Hinzman continued to question his impending involvement in combat. He testified
before the Board that he had been “kind of living a double life,” outwardly
indicating that he was a “soldier’s soldier” but inwardly developing concerns
about killing. Ultimately, he concluded that he could not kill, and that all
violence does is perpetuate more violence.
[10]
Consequently,
Mr. Hinzman applied on August 2, 2002 for reassignment to non-combat duties as
a conscientious objector, in accordance with Army Regulation 600-43. Although
he indicated on his application that he was not a member of a religious sect or
organization, he noted that over the past few years, he had been discovering a
world-view framed by the teachings of Buddhism, which led to his decision that
he was unable to kill. He also stated in the application that in January 2002,
he and his wife had begun attending meetings of The Religious Society of
Friends, or Quakers, a church espousing pacifism. In accordance with the
military’s conscientious objector procedures, within three days of submitting
his application for conscientious objector status, Mr. Hinzman was reassigned
to guard the entrance gate at the Fort
Bragg base.
[11]
For
reasons that are unclear, Mr. Hinzman’s first conscientious objector
application was not dealt with on its merits. Accordingly, he submitted a new
application in October 2002, after he had learned that his unit would be
deployed to Afghanistan. Mr. Hinzman believed that
the United States had a legitimate basis for going into Afghanistan because he was
satisfied that there were links between the Taliban regime then in power in
Afghanistan and al-Qaeda, the terrorist organization responsible for the
September 11, 2001 attacks on the United States. Mr. Hinzman therefore went to Afghanistan, where he was assigned to
kitchen duties because of his pending application for conscientious objector
status.
[12]
A hearing
was held in respect of Mr. Hinzman’s conscientious objector application while
he was in Afghanistan, on April 2, 2003. Although
First Lieutenant Dennis Fitzgerald, who was appointed investigating officer,
was satisfied that Mr. Hinzman sincerely opposes war on a philosophical,
societal and intellectual level, he concluded that Mr. Hinzman did not meet the
definition of conscientious objector, as outlined in Army Regulation 600-43,
because Mr. Hinzman had indicated that while he was unable to conduct offensive
operations in combat, he would conduct defensive and peacekeeping operations. The
First Lieutenant therefore denied Mr. Hinzman’s conscientious objector
application. First Lieutenant Fitzgerald also held that Mr. Hinzman was using
his conscientious objector application to get out of the infantry, a conclusion
based, in part, on the negative and apparently erroneous, inference drawn from
the First Lieutenant’s belief that Mr. Hinzman did not claim conscientious
objector status until after he learned he would be deployed to Afghanistan.
[13]
Although
Mr. Hinzman has complained about his inability to call witnesses at the hearing
because the hearing was held in Afghanistan and the witnesses he would have
called were in the United
States, he did
not request an adjournment of the hearing, as he was permitted to do under Army
Regulation 600-43. Moreover, Mr. Hinzman chose not to exercise his right to
appeal the First Lieutenant’s decision, indicating that upon returning to the United States he was worn down and felt
there would be no point in pursuing the matter.
[14]
Mr.
Hinzman subsequently returned to the United States and resumed his normal duties as an infantryman. In
December 2003, he learned that his unit would be deployed to Iraq on January 16, 2004. He was determined,
however, not to fight in Iraq because he believed the United States military action there to be
illegal and immoral. Consequently, Mr. Hinzman decided to desert.
[15]
Mr.
Hinzman, along with his wife and son, arrived in Canada on January 3, 2004 and filed for refugee
status approximately three weeks later. His refugee claim was based on his
beliefs described above.
[16]
Mr.
Hinzman maintains that, if returned to the United States, he will be prosecuted for desertion and
likely receive a sentence of one to five years in a military prison.
FACTS
IN THE HUGHEY APPEAL
[17]
Brandon
Hughey volunteered to join the U.S. Army on July 30, 2002 at the age of 17
years, while still a student in high school. He reported for duty on July 9,
2003. Like Mr. Hinzman, he enlisted for a period of four years. Mr. Hughey
testified that he joined the military to access financial assistance that would
enable him to go to college and because he believed that some things were worth
fighting for.
[18]
Mr. Hughey
learned of the war in Iraq while he was in basic
training. Although he originally assumed the war in Iraq could be justified,
his opinion changed over time, so that he too believed that the war in Iraq was illegal.
[19]
Mr. Hughey
testified that while on approved leave from his unit from November 20, 2003 to
December 18, 2003 he conducted research about the U.S. military action in Iraq that further entrenched his opposition
to the war. Upon his return to his duty station, Fort Hood, Mr. Hughey told his non-commissioned
staff sergeant that he did not think the military action in Iraq was morally right and asked the staff
sergeant for assistance in seeking a discharge from the military. Mr. Hughey
was told to stop thinking so much, that he had signed a contract, and that
there was nothing that the superior officer was going to do to help accommodate
his request for a discharge. A similar appeal by Mr. Hughey to another superior
officer on a later occasion elicited a similar response.
[20]
Through
research on the internet, Mr. Hughey learned of an anti-war activist named Carl
Rising-Moore who was willing to help soldiers escape the military. After Mr.
Hughey contacted him in February 2004, Mr. Rising-Moore agreed to help Mr.
Hughey get to Canada and explained that Mr.
Hughey’s only option would be to apply for refugee status on his arrival.
[21]
While Mr.
Hughey and Mr. Rising-Moore were exchanging e-mails, Mr. Hughey learned that he
would be deployed to Iraq. He therefore left his base
and arrived in Canada with Mr. Rising-Moore on
March 5, 2004. Mr. Hughey applied for refugee protection approximately one
month later, on the basis that he had a well-founded fear of persecution in the
United States because of his political
opinion.
[22]
In his
testimony, Mr. Hughey stated his belief that if returned to the United States
he would face one to five years in prison and that he might face a more severe
sentence because the Army knew through interviews in Canada that he had sought
asylum in another country. He also testified that in basic training his drill
sergeants told the soldiers that they could be put to death for desertion.
DECISIONS
OF THE BOARD
1)
Interlocutory Decision
as to Admissibility of Evidence
[23]
Mr.
Hinzman brought a preliminary motion before the Board to adduce evidence to establish
that the war in Iraq is illegal under international
law. He maintained that this evidence of illegality was relevant to his claim
because it would bring him within paragraph 171 of the United Nations Handbook
on Procedures and Criteria for Determining Refugee Status (the “Handbook”),
a document treated as a “highly persuasive authority” in an assessment of
whether an individual qualifies for refugee status: Chan v. Canada (Minister of Employment and
Immigration),
[1995] 3 S.C.R. 593 at page 659.
[24]
Paragraph
171 of the Handbook provides as follows:
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.
[25]
Mr.
Hinzman argued before the Board that an illegal war constitutes a military
action “condemned by the international community as contrary to basic rules of
human conduct,” within the meaning of paragraph 171 of the Handbook,
such that any punishment for deserting an illegal war would constitute
persecution.
[26]
The Board
disagreed. In its view, when paragraph 171 of the Handbook speaks of a
military action contrary to basic rules of human conduct, it refers to specific
acts the soldier would be expected to perform “on the ground,” not to the
legality of the conflict as a whole. Accordingly, the Board concluded the
illegality of the war in Iraq was not relevant to Mr.
Hinzman’s claims and therefore refused to admit evidence directed to the issue.
[27]
The
appellants are represented by the same counsel. Moreover, Mr. Hughey’s case was
heard by the same Board member who had previously adjudicated the Hinzman
case. In light of the Board’s preliminary evidentiary ruling in the Hinzman
case, counsel for the appellants did not adduce evidence as to the illegality
of the war in Iraq in the Hughey case.
2)
Decisions as
to the Merits of the Refugee Claims
[28]
Although the
Board issued separate Reasons in the Hinzman and Hughey cases,
the claims in each case were dismissed on substantially the same basis. Therefore,
I summarize the key holdings of the Board collectively.
[29]
The Board
first identified that there is a presumption in refugee law that states are
capable of protecting their citizens. Likewise, the Board noted that there is a
presumption that ordinary laws of general application, such as the U.S. laws relating to desertion, are not
persecutory. After a detailed analysis, the Board concluded that the appellants
had failed to rebut these presumptions of state protection and neutrality of
laws and as such, their refugee claims could not succeed.
[30]
The Board
also considered the appellants’ contention that the U.S. military action in Iraq involves serious violations of
international humanitarian law which are condemned by the international
community as contrary to basic rules of human conduct. The appellants argued
that, because of these violations of international humanitarian law, paragraph
171 of the Handbook directs that any punishment for their refusal to
participate in such conduct would amount to persecution. The Board rejected
this argument after an extensive review of the evidence adduced to establish
the “on the ground” conduct of the United States military in Iraq.
According to the Board, the appellants failed to adduce sufficient evidence to show
that if deployed to Iraq they would personally have
been required to engage in conduct condemned by the international community as
contrary to basic rules of human conduct.
[31]
Finally,
the Board considered whether the punishment the appellants would face upon
return to the United
States would
amount to persecution. To establish this claim, the Board indicated that the
appellants would have to show that the relevant provisions of the U.S. Uniform
Code of Military Justice (“UCMJ”) would be applied to them in a discriminatory
fashion or would amount to cruel or unusual treatment or punishment. Neither of
these grounds, in the Board’s view, was made out by the appellants.
Accordingly, the appellants’ applications for refugee status were rejected.
DECISIONS
OF THE FEDERAL COURT
[32]
The appellants sought
judicial review of the Board’s decisions in the Federal Court. A central issue
before Mactavish J. was the interpretation and application of paragraph 171 of
the Handbook. The appellants argued that the Board had been wrong to
exclude evidence of the Iraq war’s illegality as irrelevant to the appellants’
refugee claims, that the Board erred in finding that the appellants had not
established that the violations of international humanitarian law committed by
the American military in Iraq are systemic, and that the Board had applied too
heavy a burden on the appellants to demonstrate that they would have been
involved in unlawful acts had they gone to Iraq.
[33]
After
extensive reasons, Mactavish J. rejected all of the appellants’ claims
regarding paragraph 171. She held that in the case of a mere foot soldier, paragraph
171 refers only to “on the ground” conduct of the soldier in question, not to the
legality of the war itself. Moreover, she concluded that the Board’s holding that
violations of international humanitarian law by the American military in Iraq were not systemic or condoned by the
state was a finding of fact reviewable on a standard of patent
unreasonableness. In her view, the appellants were unsuccessful in impeaching
the Board’s finding against this standard. Likewise, Mactavish J. was satisfied
that the Board had applied the appropriate standard of proof in determining
whether the appellants had demonstrated that they would have been involved in
unlawful acts had they gone to Iraq.
[34]
Finally, Justice
Mactavish considered whether it was reasonable for the Board to find that the appellants
had failed to rebut the presumption of state protection. She concluded that the
Board’s decision was appropriate. In her view, because there is no
internationally recognized right to conscientiously object to a particular war,
other than in the circumstances specifically identified in paragraph 171 of the
Handbook, which in her view were not made out in either of the present cases,
the fact that the appellants may face prosecution upon return to the United
States did not amount to a failure of state protection or to persecution on the
basis of political opinion.
[35]
Accordingly,
Mactavish J. concluded that there was no basis for interfering with the
decisions of the Board. She also certified the following question:
When dealing with a
refugee claim advanced by a mere foot soldier, is the question whether a given
conflict may be unlawful in international law relevant to the determination
which must be made by the Refugee Division under paragraph 171 of the UNHCR Handbook?
RELEVANT
STATUTORY PROVISIONS
[36]
Section 95
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”)
confers refugee status on individuals who are Convention refugees, while
section 96 of IRPA defines what constitutes a Convention refugee. The text of
these sections is as follows:
|
95.
(1) Refugee protection is conferred on a person when
(a) the person
has been determined to be a Convention refugee or a person in similar
circumstances under a visa application and becomes a permanent resident under
the visa or a temporary resident under a temporary resident permit for
protection reasons;
(b) the Board
determines the person to be a Convention refugee or a person in need of
protection; or
(c) except in
the case of a person described in subsection 112(3), the Minister allows an
application for protection.
(2)
A protected person is a person on whom refugee protection is conferred under
subsection (1), and whose claim or application has not subsequently been
deemed to be rejected under subsection 108(3), 109(3) or 114(4).
96.
A Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not having
a country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
|
95.
(1) L’asile est la protection conférée à toute personne dès lors que, selon
le cas :
a) sur
constat qu’elle est, à la suite d’une demande de visa, un réfugié ou une
personne en situation semblable, elle devient soit un résident permanent au
titre du visa, soit un résident temporaire au titre d’un permis de séjour
délivré en vue de sa protection;
b) la
Commission lui reconnaît la qualité de réfugié ou celle de personne à
protéger;
c) le
ministre accorde la demande de protection, sauf si la personne est visée au
paragraphe 112(3).
(2)
Est appelée personne protégée la personne à qui l’asile est conféré et dont
la demande n’est pas ensuite réputée rejetée au titre des paragraphes 108(3),
109(3) ou 114(4).
96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit se
trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de
cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si
elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait
sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y
retourner.
|
ANALYSIS
1)
Introduction
[37]
The
certified question asks this Court to rule on whether evidence of the
illegality of a military action is relevant to an analysis governed by
paragraph 171 of the Handbook. However, to qualify for refugee status, the
appellants would have to first satisfy the court that they sought, but were
unable to obtain, protection from their home state, or alternatively, that
their home state, on an objective basis, could not be expected to provide
protection. In my view, for the reasons that follow, the appellants are unable
to satisfy this first criterion and therefore it is unnecessary to proceed to
the second stage of the analysis where the certified question might become
relevant. I would therefore decline to answer the certified question and would
dismiss the appeals.
2)
Standard of
Review
[38]
Mactavish
J. correctly identified that questions as to the adequacy of state protection
are questions of mixed fact and law ordinarily reviewable against a standard of
reasonableness (Hinzman v. Canada (Minister of Citizenship and Immigration),
2006 FC 420 at paragraph 199, Hughey v. Canada (Minister of Citizenship and
Immigration), 2006 FC 421 at paragraph 186). As the discussion that follows
will illustrate, I am of the view that the Board’s holding that the appellants
failed to rebut the presumption of state protection was reasonable.
3)
State
Protection and Persecution
[39]
In their
Memoranda of Fact and Law, the appellants accept that to succeed in their
claims for refugee status, they must come within the definition of “Convention
refugee,” which is set out in section 96 of IRPA:
|
96.
A Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not having
a country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
|
96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit se
trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de
cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si
elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait
sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y
retourner.
|
[40]
The appellants argue
that if they are returned to the United
States, they will face one
to five years in prison for deserting the military. This punishment, they say,
amounts to persecution on the basis of their political opinion that the war in Iraq is illegal and immoral. Moreover, they maintain that because
the alleged persecutor is the state itself, state protection from persecution
is necessarily absent. Therefore, the appellants assert that they are
Convention refugees.
[41]
In evaluating the
appellants’ claims, the starting point must be the direction from the Supreme
Court of Canada that refugee protection is meant to be a form of surrogate
protection to be invoked only in those situations where the refugee claimant
has unsuccessfully sought the protections of his home state. In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at page 709 (“Ward”),
La Forest J., speaking for the Court, explained this concept as follows:
At the outset, it is useful to explore the
rationale underlying the international refugee protection regime, for this
permeates the interpretation of the various terms requiring examination. International
refugee law was formulated to serve as a back-up to the protection one expects
from the state of which an individual is a national. It was meant to
come into play only in situations when that protection is unavailable, and then
only in certain situations. The international community intended that
persecuted individuals be required to approach their home state for protection
before the responsibility of other states becomes engaged. [Emphasis
added.]
[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 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.
[43]
In Ward, the
Supreme Court explained at page 725 that in refugee law, there is a presumption
of state protection:
…nations should be presumed capable of
protecting their citizens. Security of nationals is, after all, the essence of
sovereignty. Absent a situation of complete breakdown of state apparatus, such
as that recognized in Lebanon in Zalzali, it
should be assumed that the state is capable of protecting a claimant.
[44]
To rebut the
presumption, the Court stated that “clear and convincing confirmation of a
state’s inability to protect must be provided”: Ward at page 724.
[45]
In Kadenko v.
Canada (Solicitor General) (1996), 143 D.L.R. (4th) 532 at page
534 (F.C.A.), Décary J.A. elaborated on these principles and highlighted that
the more democratic a country, the more the claimant must have done to seek out
the protection of his or her home state:
When the state in question is a democratic
state, as in the case at bar, the claimant must do more than simply show that
he or she went to see some members of the police force and that his or her
efforts were unsuccessful. The burden of proof that rests on the claimant
is, in a way, directly proportional to the level of democracy in the state in
question: the more democratic the state's institutions, the more the claimant
must have done to exhaust all the courses of action open to him or her.
[Emphasis added.]
[46]
The United States is a democratic country with a system of
checks and balances among its three branches of government, including an
independent judiciary and constitutional guarantees of due process. The
appellants therefore bear a heavy burden in attempting to rebut the presumption
that the United States is capable of protecting them and would
be required to prove that they exhausted all the domestic avenues available to
them without success before claiming refugee status in Canada. In Minister of Employment and Immigration v. Satiacum
(1989), 99 N.R. 171 at page 176 (F.C.A.) (“Satiacum”) this Court
was called upon to consider a claim of insufficient state protection in the
United States and commented on the difficult task facing a claimant attempting
to establish a failure of state protection in the United States:
In the case of a nondemocratic State, contrary
evidence might be readily forthcoming, but in relation to a democracy like the United States contrary evidence might
have to go to the extent of substantially impeaching, for example, the jury
selection process in the relevant part of the country, or the independence or
fair-mindedness of the judiciary itself.
[47]
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. In particular, Army Regulation 600-43 formally recognizes the validity
of conscientious objection to military service by providing conscientious
objectors with exemptions from military service or alternatives to combat.
Soldiers attempting to avail themselves of these exemptions from combat service
are provided with numerous procedural protections, including the right to a
hearing and a right of appeal. They are also transferred to non-combat
positions upon the making of an application, a provision from which Mr. Hinzman
benefited when he was assigned to act as a guard at the entrance of the Fort Bragg base and to kitchen duties for the duration of his
deployment in Afghanistan.
[48]
Furthermore, while punishment
for desertion can include imprisonment, the evidence indicates that the vast
majority of Army deserters in the United
States have not been
prosecuted or court-martialled. Rather, approximately 94% of deserters have
been dealt with administratively and merely receive a less-than-honourable
discharge from the military (Exhibit M-5, Appeal Book at page 2420).
[49]
The Board found that
no evidence had been brought forward to establish that the appellants would not
be afforded the full protection of the law if they were court-martialled in the
United States. It concluded that if the appellants
were court-martialled, they would be subjected to a sophisticated military
justice system that respects the rights of the service person, guarantees
appellate review and provides a limited access to the U.S. Supreme Court, as
outlined in the UCMJ and the Manual for Courts-Martial of the United States.
[50]
Neither Mr. Hinzman
nor Mr. Hughey made an adequate attempt to avail himself of the protections
afforded by the United
States. Although Mr.
Hinzman applied for conscientious objector status, he did not avail himself of
all the recourses available to him. In particular, he failed to take advantage
of his right to request an adjournment of the hearing respecting his
conscientious objector application until his return to the United States, where he would be able to call
appropriate witnesses, and to avail himself of his right of appeal from a
negative decision at first instance. Like the Board, I find that it was not
unreasonable to expect that Mr. Hinzman would have pursued further his request
for conscientious objector status after learning that First Lieutenant
Fitzgerald had found against him.
[51]
Unlike Mr. Hinzman,
Mr. Hughey did not apply for conscientious objector status, nor did he take any
other formal steps to avoid combat service contrary to his political views. Mr.
Hughey’s attempts to avail himself of protections available in the United States appear to be limited to the discussions
he had with his superior officers about the possibility of obtaining a
discharge from the military, in which he was told that such a discharge was not
available. He apparently did not seek any other advice, for example from a
chaplain or a lawyer, about the options available to him.
[52]
Rather than attempt
to take advantage of the protections potentially available to them in the
United States, the appellants came to Canada and claimed refugee status. As the
Supreme Court of Canada directed in Ward, however, refugee protection is
not available where there has been an inadequate attempt to seek out the
protections available in one’s home country.
[53]
The appellants challenge
this reasoning, arguing that evidence of the state’s failure to protect is
unnecessary where the state is the agent of persecution. They cite Zhuravlvev
v. Canada (Minister of Citizenship and
Immigration), [2000] 4
F.C. 3 at paragraph 19 (F.C.T.D.), for the proposition that when the state is
persecuting the claimants, state protection is, by definition, absent. They note
that in Ward, at issue were the actions of a non-state entity that was
allegedly persecuting the claimant. According to the appellants, only in that
situation is it appropriate for the Court to inquire into whether the state was
able to protect the refugee claimant from his persecutor.
[54]
However, the concepts
of persecution and state protection are interconnected such that the question
of whether the refugee claimant has attempted to avail himself of the
protective mechanisms provided by the state is relevant both where the alleged
persecutor is an organ of the state and where the alleged persecutor is a
non-state entity. The central feature of the refugee protection scheme is that
the refugee claimant has a fear of persecution that is objectively well-founded
(Ward at page 723). Where the claimant alleges that he is being
persecuted by the state itself, the inquiry into the availability of state
protection goes to the question of whether the claimant has an objective basis
for his fear of persecution. If effective state protection for religious or political
beliefs is available to the claimant, it can hardly be said that there is a
serious possibility of persecution by the state sufficient to make his fear of
persecution objectively well-founded. The presumption of state protection
described in Ward, therefore, applies equally to cases where an
individual claims to fear persecution by non-state entities and to cases where
the state is alleged to be a persecutor. This is particularly so where the home
state is a democratic country like the United
States. We must respect the
ability of the United States to protect the sincerely held beliefs of
its citizens. Only where there is clear and convincing evidence that such
protections are unavailable or ineffective such that state conduct amounts to
persecution will this country be able to extend its refugee protections to the
claimants.
[55]
A second contention
made by the appellants is that Ward requires refugee claimants to seek
out protections provided by their home countries only if that protection can be
said to “reasonably have been forthcoming.” In their assessment, the
protections provided to the appellants by the United States
would not meet this threshold. They say that the American approach to
conscientious objection does not protect those who only object to specific
wars, rather than to all wars. The appellants argue that because they fall into
the former category, it cannot be said that protection from the United States
“might reasonably have been forthcoming” to them such that they should have
attempted to avail themselves of such procedures. Moreover, the appellants
submit that they would be unable to challenge the legality of the Iraq war in a U.S. court because of the U.S. political questions doctrine which, they claim, renders
such issues non-justiciable. In light of this doctrine the appellants say that their
only option would be to appeal to the Executive, an illusory recourse, in their
view, because it was the Executive that chose to go to war in Iraq.
[56]
I cannot agree. A
careful reading of Ward illustrates that when the Supreme Court of
Canada adopted the test formulated by Professor Hathaway (that only in
situations in which state protection “might reasonably have been forthcoming”
will the claimant’s failure to approach the state for protection defeat his
claim), the Court did not intend that refugee claimants would easily be able to
avoid the requirement that they approach their home countries for protection
before seeking international refugee protection. La Forest J. clarifies in the next sentence of his Reasons, at page
724, that the test is meant to be an objective one:
…the claimant will not meet the definition of
"Convention refugee" where it is objectively unreasonable for the
claimant not to have sought the protection of his home authorities...
[57]
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.
[58]
In the circumstances,
it is difficult to conclude, without clear evidence of the appellants’
experiences to the contrary, that the appellants would have inadequate
protection for their beliefs in the United
States. Mr. Hinzman’s
objections to combat transcend the war in Iraq and are grounded at least in part in his
religious and spiritual beliefs. He may therefore very well have qualified as a
conscientious objector had he pursued his application fully. Mr. Hughey may
have more difficulty in seeking conscientious objector status because he
objects only to the specific military action in Iraq on
political grounds. Without evidence of his attempts to obtain such protection, however,
it is impossible to know how he would have fared. In any event, conscientious
objector discharges are not the only means by which soldiers can obtain early
release from the military. Statistics adduced by the Crown indicate that
approximately 94% of deserters from the U.S. Army have not faced prosecution
and imprisonment, but have merely been dealt with administratively by
being released from the military with a less-than-honourable discharge. Arguably,
the chance of receiving an administrative discharge will be even higher for
those who attempt to negotiate a discharge before deserting their units. Contrary
to the appellants’ assertions, therefore, these statistics suggest that appeal
to the Executive is not an illusory recourse.
[59]
In oral argument,
counsel for the appellants disputed the statistics relating to punishment for
deserters on the basis that they were computed prior to the commencement of the
most recent U.S. military action in Iraq. However, he could not point us to any contrary evidence.
Moreover, there is reason to believe the statistics would not have changed
materially. As Lord Hoffman noted in Sepet v. Secretary of State for the
Home Department, [2003] UKHL 15 at paragraph 44 (H.L.), soldiers who
conscientiously object to combat may do more harm than good because their
unwillingness to participate voluntarily may make them ineffective in combat
and because they are likely to be articulate individuals who will attempt to
spread their beliefs among their colleagues. It therefore may be in the best
interests of the military to accommodate those who object to combat by merely
discharging them from service.
[60]
Moreover, while the
Board said that the appellants would likely face one to five years imprisonment
if returned to the United States, this can only be an opinion as to what U.S. courts would do. It is important to note that the Board’s Reasons
did not consider all of the important evidence. In particular, the Reasons make
no reference to the statistic that the vast majority of deserters are not
prosecuted, let alone jailed for their conduct. As Justice Evans identified in
Cepeda-Gutierrez v. Canada (Minister of Citizenship and
Immigration), [1998]
F.C.J. No. 1425 at paragraph 17 (F.C.T.D.), a court will be reluctant to defer
to a tribunal’s decision where the tribunal’s reasons consider in detail the
evidence supporting its conclusions, but do not refer to important evidence
pointing to a different conclusion:
[17] However, the more important the
evidence that is not mentioned specifically and analyzed in the agency's
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”:
Bains v. Canada (Minister of Employment and Immigration) (1993), 63
F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation
increases with the relevance of the evidence in question to the disputed facts.
Thus, a blanket statement that the agency has considered all the evidence will
not suffice when the evidence omitted from any discussion in the reasons
appears squarely to contradict the agency's finding of fact. Moreover,
when the agency refers in some detail to evidence supporting its finding,
but is silent on evidence pointing to the opposite conclusion, it may be easier
to infer that the agency overlooked the contradictory evidence when making its
finding of fact.
[61]
Although the Board
considered evidence suggesting that the appellants would be imprisoned for
desertion if returned to the United
States, it failed to make
reference to the critical statistic that most deserters have not been
imprisoned. This failure on the part of the Board suggests that its opinion
regarding the punishment the appellants will potentially face upon return to
the United States was made without regard to the material
before it and therefore the Board’s opinion cannot be relied upon.
4)
Conclusion
[62]
In conclusion, the
appellants have failed to satisfy the fundamental requirement in refugee law
that claimants seek protection from their home state before going abroad to
obtain protection through the refugee system. Several protective mechanisms are
potentially available to the appellants in the United States.
Because the appellants have not adequately attempted to access these
protections, however, it is impossible for a Canadian court or tribunal to
assess the availability of protections in the United States.
Accordingly, the appellants’ claims for refugee protection in Canada must fail.
CLAIMS
OF MR. HINZMAN’S WIFE AND SON
[63]
Mr. Hinzman’s wife,
Nga Thi Nguyen, and son, Liam Liem Nguyen Hinzman, also claimed refugee status
on the basis of membership in a particular social group, namely, Mr. Hinzman’s
immediate family. Although they are named as appellants in the Hinzman
appeal, no arguments were addressed to them in the Memorandum of Fact and Law filed
in respect of that appeal or in oral argument. Moreover, the Order sought in
the Hinzman appeal refers to the “Appellant,” in the singular, thereby
apparently referring only to Mr. Hinzman. In these circumstances, I adopt the
conclusions of the Board:
The adult claimants adduced no evidence that Nga
Thi Nguyen or Liam Liem Nguyen Hinzman would face a serious possibility of
persecution or other serious harm as a result of being part of Mr. Hinzman’s
family, even were he to receive a term of imprisonment for his desertion. They
relied on the evidence of Mr. Hinzman, with whose claim theirs were joined.
Since Mr. Hinzman has failed to establish his claim, their claims must also
fail.
DISPOSITION
[64]
For the foregoing
reasons, I would refrain from answering the certified question and I would
dismiss the appeals.
"J. Edgar Sexton"
"I
agree
Robert Décary J.A."
"I
agree
John M. Evans J.A."
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