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Federal Court
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Cour fédérale
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Date: 20090622
Docket: IMM-4599-08
Citation: 2009 FC 649
Ottawa, Ontario,
June 22, 2009
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
MATTHEW DAVID LOWELL
Applicant
and
THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Mr.
Lowell’s application for permanent residence from within Canada on
humanitarian and compassionate grounds was refused by a Pre-Removal Risk
Assessment Officer’s decision of September 12, 2008, and communicated to the
applicant on October 9, 2008. He is asking that the decision be set aside.
Background
[2]
Mr.
Lowell is an American citizen. He enlisted in the United States Army after he
turned 18, in July of 2002. After communicating with friends serving in Iraq and
researching information on the conflict there, he became opposed to American
involvement in Iraq and decided he would have no part of it. In
October of 2003, he went Absent Without Official Leave (AWOL) for the first
time. He returned to his unit in June of 2004, at his mother’s insistence. He
was not sanctioned - in fact he was promoted. Upon learning that he was to be
deployed in Iraq despite
having asked for a discharge, he went AWOL for a second time in October of
2004. He was arrested and jailed for four days in September of 2005 by civil
authorities, and ordered to report to his former unit. He did so and was
charged with desertion with the intent to avoid hazardous duty (Article 85) and
missing movement (Article 87) contrary to the Uniform Code of Military Justice
(UCMJ). He says that when he reported back to his unit, he was kicked and
punched and spat at by both his peers and commanding officers, and was told
that he bore responsibility for the deaths of his company members in Iraq. He
was prevented from sleeping for more than four hours at a time. Before the
Court Martial proceedings on the charges against him, Mr. Lowell again went
AWOL. On November 11, 2005, he crossed into Canada and claimed
refugee protection shortly thereafter.
[3]
The
claim for refugee protection was rejected by the Refugee Protection Division of
the Immigration and Refugee Board of Canada in December of 2006. Mr. Lowell did
not seek judicial review of that decision. In March 2006 he filed an application
for Pre-Removal Risk Assessment (PRRA) as well as an application for inland
processing of his application for permanent residence, on humanitarian and
compassionate grounds (H&C application). Both were denied. An application
for leave and judicial review of the PRRA decision was dismissed by this Court
on February 11, 2009. Leave was granted to review the H&C decision.
[4]
In
support of his application for humanitarian and compassionate relief, Mr.
Lowell stated that he believes that if he returns to the United
States of America, he will suffer unusual and undeserved, or disproportionate hardship. This hardship
arises from three risks he identified in his application and supporting
materials: Harm
arising from risks associated with punishment by the military for desertion and
missing movement (judicial punishment); harm arising from treatment by those in
the military apart from any judicial punishment (non-judicial punishment); and
harm arising from receiving a dishonourable discharge (other punishment).
[5]
With
respect to judicial punishment, he submits that he will receive a longer prison
sentence than others would receive if convicted for a similar offence because
he has spoken out publicly against the war in Iraq. With
respect to non-judicial punishment he submits that he will suffer arbitrary,
cruel and unusual non-judicial punishments at the discretion of his former unit
commander and other soldiers. With respect to other punishment he submits that
he will receive a dishonourable discharge which will negatively impact his
prospects of employment and his ability to obtain bank financing, thus
negatively impacting his ability to support his family.
[6]
The Officer in her
decision set out the factors at issue in the H&C application in some
detail. This section, entitled “Consideration” includes a detailed account of
the hardships and sanctions alleged by Mr. Lowell and a description of the
evidence adduced in support of these allegations.
This evidence included Mr. Lowell’s military Charge Sheet; affidavits
from other soldiers who have gone AWOL from the U.S. military, some of whom
claimed conscientious objector status; an affidavit from Eric Seitz, an
American expert in military law; and a declaration from a Canadian citizen and
former American soldier regarding the likelihood that Mr. Lowell would face
uncharacteristically harsh treatment if returned to the U.S.
[7]
The Officer’s reasons
for refusal are eight pages in length. At the outset, the Officer writes that
“the applicant bears the onus of satisfying me that his personal circumstances,
including the best interest of any child directly affected by my decision, are
such that the hardship of not being granted the requested exemption would be i)
unusual and undeserved or ii) disproportionate.” She further writes: “I
recognize that the threshold is one of hardship for an H&C application and
not section 96 or 96 of the Immigration and Refugee Protection Act. This
H&C application has been assessed on the basis of unusual and undeserved,
or disproportionate hardship.”
[8]
On the evidence before
her, and with reference to the decision of the Federal Court of Appeal in Hinzman
v. Canada (Minister of Citizenship and Immigration), [2007] 1 F.C.R. 561,
2006 FC 420, the Officer concluded that the judicial punishment to which
the applicant would be subject upon return to the United States would not
amount to an unusual, undeserved, or disproportionate hardship. She noted that
Mr. Lowell is facing lawful charges under a law of general application, and
that there was insufficient evidence to conclude that the UCMJ would be applied
in a disproportionately harsh manner to Mr. Lowell.
[9]
With respect to
non-judicial punishment, the Officer examined Army Regulation 27-10, which
provides for the imposition of non-judicial punishment by commanders, and noted
that the regulation prescribes the circumstances under which such punishment
may be administered, sets limits on its exercise, and provides for an appeal
process where a soldier believes that a punishment is excessive or should be
mitigated. She also noted that discharges for conscientious objection are
governed by uniform standards, and that Mr. Lowell provided no evidence that he
had sought conscientious objector status. While acknowledging Mr. Lowell’s
submission concerning abuse at the hands of his peers in 2005, as well as
affidavit evidence of same from a former Marine who sought refuge in Canada
(which she found to be one-sided), the Officer noted that there was no evidence
that Mr. Lowell had availed himself of the appeal provisions of Regulation
27-10 or that he had reported the mistreatment to superior officers. She wrote
“I find the authority of commanders under Army Regulation 27-10 to impose
non-judicial punishment to be a law of general application under which the
applicant would be afforded due process should it be improperly imposed.”
[10]
With
respect to other, largely financial, hardships flowing from a dishonourable
discharge the Officer found there to be no evidence that the applicant’s family
would be negatively impacted, as there was no evidence that he has family
members who rely on him for support. She further found that alleged
difficulties in finding or obtaining employment or financing, to the extent
they are sanctioned, are based on laws of general application in the U.S. and that
there was no evidence that the applicant would be disproportionately impacted
by them. Lastly, she recognized that he may receive “unwelcome comments and
attention from groups and individuals who disagree with his
political opinions about the war in Iraq” but found
that the evidence did not support a conclusion that these would reach the level
of unusual and undeserved or disproportionate hardship.
Issues
[11]
The
applicant raises three issues:
1. Whether the officer assessed
the applicant’s H&C application under thresholds applicable to sections 96
and 97 of the Immigration and Refugee Protection Act and erred by
failing to assess the hardship the Applicant would face if returned to the
United States;
2. Whether the officer failed
to provide sufficient reasons for her finding that the applicant would not be
subject to greater punishment for having been a vocal opponent to the war in
Iraq; and
3. Whether the officer failed
to have regard to the totality of the evidence before her, ignored
contradictory evidence, and failed to address the risk of physical and
psychological hazing.
Analysis
[12]
H&C
applications are assessed based on the claims and information applicants place
before H&C officers. In this case the applicant’s submission was
transmitted to the respondent under cover of letter dated April 4, 2008 from
the Special Assistant to Glen Pearson, Member of Parliament for London North. The
letter was copied from that transmitting the PRRA dated February 29, 2008. The
writer states that “Our office believes that this man deserves a single
decision maker to assess
the Humanitarian and Compassionate
application along with the PRRA because of the aforementioned risks in
returning to the USA.” The letter raises two potential harms to the
applicant: judicial punishment and other punishment. The issue of non-judicial
hardship was raised in the supporting affidavits submitted with the PRRA
application and in the affidavit of the applicant sworn March 19, 2008 which he
submitted for both applications. In his affidavit he attests to the following:
The Army has enacted a
regulation that outlines their policy regarding non-judicial punishment. That
regulation, to the best of my understanding, indicates that a commanding
officer has full and complete discretion to determine what punishments a
soldier should receive.
I fear if I am returned to the
United States, that I will suffer arbitrary
and cruel and unusual punishment in the form of non-judicial punishments
administered at the discretion of my former unit command. This would be even
worse that an unfair court-martial proceeding and the resulting sentence of
imprisonment for my political opinion.
I do not believe that it is
right that I would be subject to hazing and other non-judicial punishments by
the United States military simply because I chose to adhere to my moral
convictions and go AWOL instead of deploying to Iraq.
1. Whether
the Officer applied the correct test.
[13]
The
applicant submits that the Officer failed to properly consider the hardship he
would experience upon return to the United States and limited her analysis to
whether he would be afforded state protection there, and whether he had
exhausted all domestic avenues of state protection prior to making the H&C Application.
[14]
The
applicant acknowledges that the Officer, many times, stated the test correctly
– unusual and undeserved, or disproportionate hardship – but maintains that she
failed to actually apply that test. He relies, in particular, on the following
passage from the Officer’s decision:
As the Court of Appeal declined
to answer the certified question because the applicants in Hinzman had
not exhausted all avenues of state protection, this H&C decision considers
whether the applicant in this case exhausted all avenues of state protection,
and the availability of state protection to him, in the context of unusual and
undeserved or disproportionate hardship.
[15]
The
applicant correctly submits that, unlike a refugee claim, as in Hinzman,
there is no requirement on an H&C applicant to rebut a presumption of state
protection, or to exhaust all avenues of state protection prior to being
successfully granted humanitarian and compassionate relief.
[16]
This
Court has frequently found that an officer considering an H&C Application has
erred in conducting a PRRA analysis by applying the tests in sections 96 and 97
of the Immigration and Refugee Protection Act, S.C. 2001 c. 27. This is
an error because risk considerations under an H&C assessment have a lower
threshold than under a PRRA or under a section 96 or 97 analysis: See for
example Pinter v. Canada (Minister of Citizenship and Immigration), 2005
FC 296; Sha’er v. Canada (Minister of Citizenship and Immigration),
2007 FC 231; Gaya v. Canada (Minister of Citizenship and Immigration),
2007 FC 989; Ramirez v. Canada (Minister of Citizenship and Immigration),
2006 FC 1404; Melchor v. Canada (Minister of Citizenship and Immigration),
2004 FC 1327, Siddiqui v. Canada (Minister of Citizenship and Immigration),
2008 FC 989.
[17]
The
hardship alleged by the applicant arises directly from having gone AWOL, being
charged, held in custody, prosecuted under the UCMJ, and subsequently released
from the military. Having raised these circumstances as the hardship
warranting humanitarian and compassionate relief, the applicant cannot fault
the Officer for examining those circumstances completely, including whether
there are protections available to the applicant to alleviate those alleged
hardships. The case law referred to in the preceding paragraph is
distinguishable. It does not follow from the Officer’s attention to factors
which normally arise in PRRA assessments that she was importing PRRA risk
thresholds.
[18]
One must
not lose sight of the purpose of the H&C exemption. Applications for
permanent residence must, as a general rule, be made from outside Canada, pursuant to subsection 9(1)
of the Act. The existence of compassionate or humanitarian considerations may
justify a departure from the rule, but that is the exception. Humanitarian and
compassionate grounds will exist if unusual, undeserved or disproportionate
hardship would be caused to the person seeking consideration if he or she had
to leave Canada and apply for permanent
residence from abroad.
[19]
Generally,
issues of state protection will not arise in an H&C application; however,
hardship cannot be assessed in a vacuum and with no reference to measures
available in the country of origin that can be accessed to address and moderate
that hardship. For example, if an applicant alleges that he will suffer
hardship if returned to his country of origin because of a medical condition, the
evidence would have to show that acceptable treatments for the condition are
unavailable in the country of origin (leaving aside questions of medical
inadmissibility to Canada). If there are medical
services readily available in the country of origin that the
applicant could access, that fact cannot be ignored when conducting an analysis
of hardship. The applicant cannot refuse to access those services in order to
support his claim for hardship in the H&C application – the hardship must
be assessed by the Officer based on all of the evidence of services available
to the applicant.
[20]
The applicant alleges that the
treatment he will receive as a consequence of his military charges amounts to
hardship. It is fully appropriate, and indeed necessary that the Officer
examine what measures are available to the applicant to moderate those alleged
hardships. In the circumstances of this case, those may generally be described
as protective services, as the applicant is alleging physical and psychological
harm as a consequence of his detention and punishment. The harm the applicant
alleges is reproduced in the Officer’s decision, as follows:
·
In an
affidavit signed on 18 March 2008, the applicant states: “What I fear if
returned to the United States is a minimum sentence of 7 years confinement in a
military prison, or possibly receiving the death sentence as it is still a
viable option due to the fact that it remains as a maximum punishment for
desertion…I believe that if I am returned to the United States I will likely be
charged with desertion and subjected to a court-martial proceeding. I do not
believe that I will receive a fair hearing at my court-martial proceeding. I
fear receiving a longer prison sentence than others would receive if convicted
for deserting for the same length of time that I have been away from my unit,
because I have chosen to speak out publicly in Canada against the war in Iraq.” In addition, the applicant also states
that he will suffer arbitrary and cruel and unusual punishment in the form of
non-judicial punishment. He fears that because he left an elite unity that he
will be targeted as a scapegoat and suffer psychological and physical harm.
·
The
applicant’s affidavit also states that: “A dishonourable discharge from the
United
States
military would have a lasting negative impact on my ability to support my
family. Potential
employers usually ask
candidates if whether they have served in the Military, and if they have what
sort of discharge they received. Financial institutions also inquire as to the
nature of one’s dishonourable discharge from the Army when preparing loans or
mortgages. I believe that a dishonourable discharge from the Army will prevent
me from finding adequate employment and from being able to finance anything
through a bank, such as a house or car.”
[21]
Based
on my review of the Officer’s decision I am satisfied that the Officer did not
apply the wrong test. The Officer applied the proper test – unusual and
undeserved or disproportionate hardship - but in considering whether the harm
alleged by the applicant met that test, she properly considered whether these
alleged hardships would or could be alleviated by the protections in place in
the military and under general laws in the USA.
Accordingly, the Officer did not err, as alleged; she applied the proper test.
2. Whether
the Officer’s reasons were sufficient.
[22]
The
applicant submits that the Officer erred in providing insufficient reasons for
her finding that he would not be subject to greater punishment as a consequence
of his vocal opposition to the war in Iraq. In his affidavit the
applicant attested that he feared that he would receive a minimum sentence of 7
years confinement or possibly the death sentence.
[23]
The
Officer’s finding in this regard was as follows: “I find that objective
evidence does not support that the applicant will be subjected to a
disproportionate punishment should he be charged and convicted in a
court-martial proceeding upon his return to the United States.” A close
reading of the decision indicates that the Officer made that finding based on
the following:
(a) The evidence
filed by the applicant from soldiers who believed that they were treated
differently and more harshly due to their vocal opposition to the war indicates
that they were convicted of varying offences and received varying
prison sentences, demotions, pay forfeiture, fines and bad conduct discharges;
(b) Independent research
shows that prison sentences imposed were up to 15 months in length;
(c) No-one has
received the death penalty since 1945, and prior to that since the U.S. Civil
War;
(d) That soldiers
charged under the UCMJ would receive due process and access to counsel; and
(e) That the UCMJ
is a law of general application for soldiers in the military.
[24]
The
applicant relies on the Court’s Endorsement in the Order staying the execution
of removal in Hinzman v. Canada (The Minister of
Citizenship and Immigration), IMM-3813-08, dated September 22, 2008.
Justice Mosley, wrote, when considering whether the applicant had shown
irreparable harm if the stay was not granted:
There is no suggestion in the
material before me that the principal male applicant will be denied due process
by the US Military justice system. However, the evidence indicates that the
laws relating to the punishment of desertion by the US military are applied
differently in the exercise of prosecutorial discretion based on the individual
deserter’s profile as an opponent or critic of the US 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.
[25]
In
my view, this comment does not assist the applicant in establishing that he
will suffer unusual and undeserved or disproportionate hardship. Justice
Mosley’s comment was made in the context of whether Mr. Hinzman, if returned to
the U.S. prior to his
application for judicial review being heard, would suffer irreparable harm.
The point my colleague was making was that Mr. Hinzman faced a likely
possibility of being jailed – thus the irreparable harm if the removal were not
stayed. However, that endorsement cannot be said to go so far as to indicate
that the treatment soldiers such as Mr. Lowell will receive amounts to unusual
and undeserved or disproportionate hardship. In this respect, the comments of
Justice Lamer, writing for a majority of the Supreme Court of Canada on this
point in Smith v. Her Majesty the Queen, [1987] 1 S.C.R. 1045, are
particularly helpful. In that case, section 12 of the Charter, which provides
that “Everyone has the right not to be subjected to cruel and unusual treatment
or punishment”, was at issue:
The numerous
criteria proposed pursuant to s. 2(b) of the Canadian Bill of Rights
and the Eighth Amendment of the American Constitution are, in my opinion,
useful as factors to determine whether a violation of s. 12 has occurred. Thus,
to refer to tests listed by Professor Tarnopolsky, the determination of whether
the punishment is necessary to achieve a valid penal purpose, whether it is
founded on recognized sentencing principles, and whether there exist valid
alternatives to the punishment imposed, are all guidelines which, without being
determinative in themselves, help to assess whether the punishment is grossly
disproportionate.
[26]
The
fact that there is prosecutorial discretion involved, such that those in the
applicant’s circumstances may receive a jail term while others may not, does
not in itself establish that he will be subject to hardship of the sort that is
contemplated in a positive H&C application. The fact is that there is a
range of possible sentences to which the applicant may be exposed. As the Officer
noted, the evidence indicates that he is not likely to serve more than 15
months and only then after receiving
due process. Her finding that this does
not amount to a hardship sufficient to warrant a positive H&C decision falls “within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law” as described by the Supreme Court in Dunsmuir v. New Brunswick, 2008 SCC 9. It cannot
be upset by this Court.
3. Whether the Officer failed to address the
risk of physical and psychological hazing.
[27]
The
applicant submits that the Officer erred in failing to consider the harm he
would experience from what was described as “psychological and physical
hazing”. He submits that this harm differs from the non-judicial punishment
captured by Army Regulation 27-10 which, he submits, was the only sort of
non-judicial punishment the Officer considered.
[28]
The
respondent denies that the Officer limited her examination of non-judicial
punishment only to those punishments falling under Army Regulation 27-10. In
the alternative, the respondent submits that if the Officer did conflate these
two types of hardship, it was based on the applicant’s own submissions. The
respondent points to the applicant’s affidavit filed in support of his H&C
application in which he attests that “ I do not believe that it is right that I
would be subject to hazing and other non-judicial punishments…” and “[I
will] suffer hardship as a result of the lasting psychological and potentially
physical ramifications of either judicial or non-judicial punishment… (emphasis
added).”
[29]
In
my view the respondent is correct. The applicant did not distinguish between
“authorized” non-judicial punishment and unauthorized hazing. He cannot now
complain that the Officer did the same. In any event, the Officer’s decision
does deal with both sorts of punishments. The Officer writes:
The applicant’s affidavit
indicates that he fears he will suffer arbitrary and cruel and unusual punishment
in the form of non-judicial punishment. Submissions indicate that the
applicant was subjected to physical and psychological hazing by his peers and
commanding officers when he returned to Fort Lewis. The applicant does not indicate
whether he exercised any of his appeal rights under Regulation 27-10 or
explored any other avenues of protection, such as reporting the treatment to
superior officers.
[30]
Appealing
treatment under the Regulation refers to “authorized” non-judicial punishment;
however, the reporting to superior officers, in my view, clearly relates to the
unauthorized hazing the applicant and others alleged would occur. As such, the
Officer did consider that allegation and concluded that it would not amount to
hardship because, while the applicant had previously been the victim of such
treatment, there was no evidence showing whether he had done anything about it.
There was evidence before the Officer that others have addressed hazing
outside the Regulation procedures. Stephen Funk, in his affidavit sworn in
support of the H&C application, says that while awaiting court-marshal he
was regularly harassed by other Marines. He references one specific incident
following which he informed his commander that if it ever happened again he
would tell the media and hold him responsible. There was no evidence offered
by the applicant that appeals such as this failed to stop the hazing. The Officer
observes: “While I recognize that complaining about such treatment places a
soldier in a difficult position and potentially subjects him to unwelcome
comments by fellow soldiers, I do not find that the hardships associated with
exploring appeal options for non-judicial punishment to be unusual and
undeserved, or disproportionate.”
[31]
There
being no evidence that such appeals would not alleviate the hardship and there
being nothing unusual and undeserved, or disproportionate about engaging those
appeal processes, it cannot be said that the Officer erred or that her decision
was unreasonable.
[32]
Neither
party proposed a question for certification and there is none.
JUDGMENT
THIS COURT ORDERS that this application
for judicial review is dismissed and no question is certified.
“Russel W. Zinn”
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